What are proceeds of crime?
Proceeds of crime refers to cash, property, and any other assets or benefits that are generated through criminal activity. They may be gained either directly or indirectly through the criminal activity. For example, a person may not have personally committed a crime, but receives the proceeds of the criminal activity.
“Property” has a broad meaning and includes real and personal property, tangible and intangible property. Examples of property include cash, a house, cryptocurrency, stocks, a car, a yacht, and bank accounts.
In New South Wales, the law also refers to “tainted property”, which is property that is tainted when it is used in, or in connection with, the commission of a serious offence. Tainted property is essentially the same as proceeds of crime.
Commonwealth and state laws
Australia has federal and state legislation targeting the proceeds of crime.
The Commonwealth and state laws create a national framework to prevent and punish people benefitting from criminal offences, assist the police in preserving evidence, and promote cooperation between federal, state, and foreign governments in tracing proceeds of crime. Many of the laws include significant financial costs on a defendant.
Commonwealth laws
Proceeds of Crime Act
The Proceeds of Crime Act 2002 (Cth) is the federal legislation targeting proceeds of crime. This Act provides a scheme to trace, restrain, and confiscate the proceeds of crime gained through criminal offences under Commonwealth law, including the Criminal Code Act 1995 (Cth).
In some circumstances, under the Proceeds of Crime Act, law enforcement authorities can confiscate the proceeds of activities that are criminalised under foreign law or state law (if those proceeds have been used in a way that contravenes Commonwealth law).
Under this Act, the Australian Federal Police (AFP) and Commonwealth Director of Public Prosecutions (CDPP) can apply to withhold proceeds of crime concerning Commonwealth offences through freezing orders, restraining orders, forfeiture orders, and pecuniary penalty orders.
Anti-Money Laundering and Counter-Terrorism Financing Act
The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) sets out Australia’s anti-money laundering laws and regulations.
Anti-money laundering (AML) refers to the policies and law that detect proceeds of crime and prevent money laundering, primarily by imposing obligations on financial institutions and service providers.
The AML/CTF Act applies to “designated services” provided by financial institutions, digital currency exchanges, the gambling industry, and remittance providers. These services are “reporting entities” and are required to take several steps including:
- Enrolling with AUSTRAC.
- Conducting customer identity checks.
- Reporting suspicious transactions.
- Maintaining a strong AML/CTF program.
New South Wales laws
Each state has its own laws to deal with proceeds of crime. These laws target proceeds of crime gained through criminal offences under state law.
NSW has three pieces of legislation targeting proceeds of crime: the Crimes Act 1900 (NSW), Confiscation of Proceeds of Crime Act 1989 (NSW) and the Criminal Assets Recovery Act 1990 (NSW).
Crimes Act
The Crimes Act 1900 (NSW) is the state’s main criminal law legislation. Proceeds of crime commonly result from breaches of this legislation.
Proceeds of crime offences are criminalised under Part 4AC of the Crimes Act. There are four offences under this provision:
- Dealing with proceeds of crime obtained from a serious offence (maximum penalty of 20 years imprisonment).
- Dealing with proceeds of general crime (maximum penalty of 15 years imprisonment).
- Dealing with suspected proceeds of crime under s 193C (maximum penalty of 8 years imprisonment).
- Dealing with property that subsequently becomes an instrument of crime or tainted property (maximum penalty of 15 years imprisonment).
“Dealing with” includes:
- Receiving, possessing, concealing, or disposing of, or bringing.
- Bringing into NSW, including through electronic communication.
- Sending out of NSW, including through electronic communication.
- Engaging directly or indirectly in a transaction, including receiving or making a gift.
Confiscation of Proceeds of Crime Act
The Confiscation of Proceeds of Crime Act 1989 (NSW) permits the NSW Director of Public Prosecutions (DPP), the Commissioner of the Independent Commission Against Corruption (ICAC), or NSW Police Commissioner to apply to withhold tainted property concerning NSW offences under one of the following types of orders:
- Forfeiture Order.
- Pecuniary Penalty Order.
- Drug Proceeds Order.
- Freezing Notice and Restraining Order.
Criminal Assets Recovery Act
The Criminal Assets Recovery Act 1990 (NSW) provides a range of orders to recover proceeds of crime. Under this Act, the NSW Crime Commission can withhold proceeds of crime under one of the following types of order:
- Restraining Order.
- Forfeiture Order.
- Proceeds Assessment Order.
- Unexplained Wealth Order.
Which law enforcement agencies combat proceeds of crime?
In Australia, the law enforcement agencies tasked with investigating, prosecuting, and confiscating proceeds of crime include the Criminal Assets Confiscation Taskforce (CACT), Australian Federal Police (AFP), Commonwealth Department of Public Prosecutions (CDPP), and the Australian Transaction Reports and Analysis Centre (AUSTRAC).
Criminal Assets Confiscation Taskforce (CACT)
The Criminal Assets Confiscation Taskforce (CACT) is a Commonwealth initiative that was launched in 2011 to ensure that crime doesn’t pay, by targeting criminals and their proceeds of crime. The multi-agency taskforce uses a coordinated and integrated approach to identify, investigate, and remove the profits derived from serious and organised criminal activity through the Proceeds of Crimes Act 2002 (Cth).
The CACT Is led and hosted by the Australian Federal Police (AFP) and consists of the Australian Criminal Intelligence Commission (ACIC), the Australian Taxation Office (ATO), the Australian Transaction Reports and Analysis Centre (AUSTRAC), and the Australian Border Force (ABF).
The CACT also works in partnership with relevant Commonwealth, state, territory, and international law enforcement agencies to identify, investigate, and litigate appropriate asset confiscation matters at the Commonwealth level.
The CACT’s strategies to recover proceeds of crime can include criminal asset confiscation, the referral of matters to the ATO, Commonwealth processes such as debt recovery action, or recovery through state and territory or foreign law enforcement agencies.
Australian Federal Police (AFP)
The AFP is the Commonwealth’s law enforcement authority. The AFP combats organised crime, transnational crime, and other forms of activity that are offences under Commonwealth law. The AFP’s tools to combat crime include the tracing and recovering of proceeds of crime.
The AFP leads the Criminal Assets Confiscation Taskforce (CACT), which has responsibility for investigating and litigating proceeds of crime matters.
Commonwealth Department of Public Prosecutions (CDPP)
The CDPP is the primary government agency responsible for the prosecution of proceeds of crime offences. The CDPP is assisted by AUSTRAC, the AFP and other Commonwealth and State departments and agencies in proceeds of crime prosecutions.
At the state and territory level, the respective state or territory public prosecutions office is responsible for prosecuting money laundering offences that breach state or territory laws.
Australian Transaction Reports and Analysis Centre (AUSTRAC)
AUSTRAC is Australia’s dedicated anti-money laundering regulator and specialist financial intelligence unit. It assists the AFP by collecting transaction reports from financial entities to then analyse the reports for suspicious financial activity, which includes signs of proceeds of crime.
The AFP, Australian Criminal Intelligence Commission (ACIC), state police, and NSW Crime Commission can also investigate and trace proceeds of crime.
Contact a proceeds of crime defence lawyer in Sydney
Our proceeds of crime defence lawyers in Sydney are experienced in successfully defending proceeds of crime charges, including complex matters often involving multiple jurisdictions and asset forfeiture orders, and matters that include alleged money laundering.
Contact us if you require assistance.
