In Australia, anti-money laundering offences are mainly contained in the Anti-Money Laundering and Counter- Terrorism Financing Act 2006 and accompanying regulations (together, AML Laws) and the Criminal Code Act 1995 (Criminal Code). These laws capture a wide range of conduct such as receiving, possessing or disposing of money or other property that is the proceeds of crime or may become an instrument of crime.
The Criminal Code makes it an offence to ‘deal with’ money or other property that is, or is likely to become, proceeds of crime or an instrument of crime. ‘Deal with’ is defined as receiving, possessing, concealing or disposing of money or other property, as well as importing, exporting, or engaging in a banking transaction relating to money or other property. An ‘instrument of crime’ is money or other property used in the commission of an offence.
The requisite mental element for the Criminal Code’s money laundering offence is knowledge (the defendant is aware or believes that money or property is the proceeds of crime or will be used to commit an offence), recklessness (the defendant is aware of a substantial risk that money or property is the proceeds of crime or will be used to commit an offence) or negligence (the defendant has failed to exercise due care to ensure that money or property is not the proceeds of crime).
For a company, the required mental elements of the crime are proven if the company is shown to have expressly, tacitly or impliedly authorised or permitted the commission of the offence. Authorisation can be proved by showing that the corporation failed to create and maintain a corporate culture that required compliance with the Criminal Code. Negligence can be proved by showing inadequate corporate management or supervision of an agent of the company. The mental elements of the money laundering offence mean that it is vital for developers to have a process in place to review investors and the source of their purchase funds as well as a training program that actively encourages and maintains an appropriate corporate culture.