(ii) in their business relationship with the person.
effective control has a meaning affected by section 400.2AA.
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 (3) for when a law of a State or Territory is connected with the offence.
foreign 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
(c) a law of a Territory.
import money or other property, into Australia, includes transfer money or other property to Australia by an electronic communication.
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 against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Northern Territory indictable offence means an offence against a law of 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).
proceeds of general crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of:
(a) an offence against a law of the Commonwealth, a State or a Territory; or
(b) a foreign offence.
proceeds of general crime offence provision means an offence against any of the following provisions:
(a) subsection 400.2B(2);
(b) subsection 400.2B(3);
(c) subsection 400.2B(5);
(d) subsection 400.2B(6);
(e) subsection 400.2B(8);
(f) subsection 400.2B(9);
(g) subsection 400.3(1A);
(h) subsection 400.3(1B);
(i) subsection 400.3(2A);
(j) subsection 400.3(2B);
(k) subsection 400.3(3A);
(l) subsection 400.3(3B);
(m) subsection 400.4(1A);
(n) subsection 400.4(1B);
(o) subsection 400.4(2A);
(p) subsection 400.4(2B);
(q) subsection 400.4(3A);
(r) subsection 400.4(3B).
proceeds of indictable crime means:
(a) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of a particular offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or
(b) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence of a particular kind against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if an offence of that kind 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.
State indictable offence means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
(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.
(3) For the purposes of the definition of foreign indictable offence in subsection (1), 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 indictable crime, or could become an instrument of crime, in relation to the offence if the offence were a foreign indictable offence.
400.2 Definition of deals with money or other property
(1) For the purposes of this Division, 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.
(2) For the purposes of this Division, if:
(a) a person (the first person) engages in conduct; and
(b) the first person’s conduct causes another person to deal with money or other property (within the meaning of subsection (1)); and
(c) the first person is reckless as to whether the first person’s conduct causes the other person to deal with the money or property;
the first person is taken to have dealt with the money or property.
(3) For the purposes of subsection (2), it is immaterial whether the identity of the other person can be established.
(4) For the purposes of subsection (2), the conduct of a person causes another person to deal with money or other property (within the meaning of subsection (1)) if the conduct substantially contributes to the other person dealing with the money or property (within the meaning of subsection (1)).
(5) For the purposes of subsection (4), it is immaterial whether the identity of the other person can be established.
400.2AA Effective control of money or property
(1) For the purposes of this Division, a person may have effective control of money or other property whether or not the person has:
(a) a legal or equitable estate or interest in the money or property; or
(b) a right, power or privilege in connection with the money or property.
(2) For the purposes of this Division, if money or other property is held on trust for the ultimate benefit of a person, the person is taken to have effective control of the money or property.
(3) For the purposes of this Division, in determining whether or not a person has effective control of money or other property, regard may be had to:
(a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the money or property; and
(b) a trust that has a relationship to the money or property; and
(c) family, domestic and business relationships between:
(i) persons having an interest in the money or property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b); and
(ii) other persons.
(4) For the purposes of this section, family relationships are taken to include the following (without limitation):
(a) relationships between de facto partners;
(b) relationships of child and parent that arise if someone is the child of a person because of the definition of child in the Dictionary;
(c) relationships traced through relationships mentioned in paragraphs (a) and (b).
(5) To avoid doubt, for the purposes of this Division, more than one person may have effective control of money or other property.
400.2A Application of offences relating to possible instruments of crime
(1) This section affects the application of sections 400.2B, 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 either or both of the following apply:
(a) a circumstance described in subsection (3) exists;
(b) a circumstance described in subsection (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.
400.2B Proceeds of crime etc.—money or property worth $10,000,000 or more
Tier 1 offences
(1) A person commits 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 indictable 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 $10,000,000 or more.
Penalty: Imprisonment for life.
(2) A person commits an offence if:
(a) the person engages in conduct in relation to money or other property; and
(b) the money or property is, and the person believes it to be, proceeds of general crime; and
(c) the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(d) when the conduct occurs, the value of the money and other property is $10,000,000 or more.
Penalty: Imprisonment for life.
(3) A person commits an offence if:
(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and
(b) for each occasion, the money or property is, and the person believes it to be, proceeds of general crime; and
(c) for each occasion, the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(d) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.
Penalty: Imprisonment for life.
Tier 2 offences
(4) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of indictable 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 indictable 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 $10,000,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
(5) A person commits an offence if:
(a) the person engages in conduct in relation to money or other property; and
(b) the money or property is proceeds of general crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of general crime; and
(d) the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(e) when the conduct occurs, the value of the money and other property is $10,000,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
(6) A person commits an offence if:
(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and
(b) for each occasion, the money or property is proceeds of general crime; and
(c) for each occasion, the person is reckless as to the fact that the money or property is proceeds of general crime; and
(d) for each occasion, the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
Tier 3 offences
(7) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of indictable 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 indictable 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 $10,000,000 or more.
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
(8) A person commits an offence if:
(a) the person engages in conduct in relation to money or other property; and
(b) the money or property is proceeds of general crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of general crime; and
(d) the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(e) when the conduct occurs, the value of the money and other property is $10,000,000 or more.
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
(9) A person commits an offence if:
(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and
(b) for each occasion, the money or property is proceeds of general crime; and
(c) for each occasion, the person is negligent as to the fact that the money or property is proceeds of general crime; and
(d) for each occasion, the conduct concealed or disguised any or all of the following:
(i) the nature of the money or property;
(ii) the value of the money or property;
(iii) the source of the money or property;
(iv) the location of the money or property;
(v) any disposition of the money or property;
(vi) any movement of the money or property;
(vii) any rights in respect of the money or property;
(viii) the identity of any person who has rights in respect of the money or property;
(ix) the identity of any person who has effective control of the money or property; and
(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
Absolute liability
(10) Absolute liability applies to paragraphs (1)(c), (2)(d), (3)(d), (4)(d), (5)(e), (6)(e), (7)(d), (8)(e) and (9)(e).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
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.
400.3 Proceeds of crime etc.—money or property worth $1,000,000 or more