On 18 October 2022, the Crimes Amendment (Money Laundering) Bill 2022 was enacted in NSW. This Bill aims to overcome barriers in prosecuting money laundering by introducing new offences to dealing with proceeds of general crime. The NSW Minister for Police, Mr Paul Toole, prefaced that the new amendments ‘introduce some of the most comprehensive anti-money laundering laws in the country’.
In short, the key amendments are:
What led to the tightening of anti-money laundering laws?
The Bill has been introduced following the recent cases of Chen v Director of Public Prosecutions (Cth)  and R v McKeller (No. 3) , which significantly shaped the interpretation of the offence of money laundering.
Briefly, these cases held that in order to prove beyond a reasonable doubt that an accused knowingly or recklessly dealt with proceeds of crime, the prosecution must have proved that the accused knew the type of offence which the proceeds derived from. This created a heightened barrier for the prosecution, making it difficult to successfully prove than an accused engaged in money laundering or dealt with proceeds of crime. This is also contrary to the position with federal proceeds of crime offences.
It was against this backdrop that the NSW Government introduced the amendments.
Amending Section 193F Crimes Act 1900
The Bill introduces Section 193F(3), which stipulates that the prosecution is not required to prove the type of offence that the proceeds of crime are derived from.
This now means that it is enough for the prosecution to prove that the property derived wholly or partly from crime generally, without specifying exactly which criminal activity.
The introduction of this provision aims to overcome the struggles of prosecuting an offence under Section 193B, arising after the decisions in Chen and McKeller.
Introduction of Section 193BA Crimes Act 1900
The introduction of a new Section 193BA(1) makes it an offence for a person to recklessly deal with proceeds of general crime (with a value of $100,000 or more), and intend to conceal features of the property.
Section 193BA(2) provides a non-exhaustive list which a court may consider when determining whether an accused intended to conceal the proceeds or property of crime. Some examples include:
The maximum penalty for an offence against Section 193BA(1) is 15 years imprisonment.
If the prosecution cannot prove that an accused intended to conceal the proceeds or property, an accused may still be found guilty under Section 193BA(3). This provision stipulates that a person is guilty of an offence is they recklessly deal with proceeds of general crime (with a value of $100,000 or more).
The maximum penalty for an offence against Section 193BA(3) is 10 years imprisonment.
Increase in maximum penalty under Section 193C Crimes Act 1900
In line with the NSE Government’s claim to “crack down” on organised criminals allegedly profiting from crime, the new amendments also increase the maximum penalty of dealing with property suspected of being proceeds of crime, where the property is valued at $5 million or more.
Under Section 193C, it an offence for a person to:
The maximum penalty for this offence differs depending on the value of the property, namely:
|Value of property
|Less than $100,000
|3 years imprisonment
|Between $100,000 and (less than) $5 million
|5 years imprisonment
|$5 million or more
|8 years imprisonment
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