Provision 400.1

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Criminal liability Proceeds of crime

This section sets out the definitions to be used in Division 400 of the Criminal Code, concerning money laundering.  The definitions include the definition of “instrument of crime” and “proceeds of crime”, the dealing of which forms the subject of a number of offences in the Division.

Notes

In accordance with the principles set out in Division 12 of the Criminal Code, a company may be found guilty of any offence, including one punishable by imprisonment. Corporate criminal liability will be imposed where the physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment. If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

(2) The means by which such an authorisation or permission may be established include:

(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

 

 

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“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).

“proceeds of 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 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).

Law / 01st January 1997 / Australia / Criminal Code Act 1995 (Cth)

The Criminal Code Act 1995 (Cth) (the Code) is Commonwealth or national legislation that provides: – a wide range of criminal offences, from offences relating to the security of the Commonwealth and the proper administration of Government to offences against humanity and dangers to the community; and – general principles of criminal responsibility.