Provision 400.5

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Criminal liability Proceeds of crime

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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This provision makes it an offence to deal in proceeds of crime etc.–money or property worth $50,000 or more, where either

(1) the money or property is, and the person believes it to be, proceeds of crime; or the person intends that the money or property will become an instrument of crime.

(2) the money or property is the proceeds of crime, or there is a risk that the money will be an instrument of crime, and 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).

(3) the money or property is the proceeds of crime, or there is a risk that the money will be an instrument of crime, and 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). Different penalties apply depending on the different mental states of the offender set out above.

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.