In 2015 the Financial Action Task Force (FATF) assessed the effectiveness of Australia’s Anti Money Laundering and Counter Terrorism Financing regime. The April 2015 report suggested more enforcement action. This may have prompted AUSTRAC’s investigation into the Commonwealth Bank.
The WA government has introduced legislation amending the Criminal Property Confiscation Act 2000 (WA) to give the CCC power to investigate and litigate Unexplained Wealth matters. This has potentially significant consequences. I consider those effects.
I explain the reasons why it may be appropriate to consider using a secure, encrypted service for communications between lawyer and client. I consider various apps including Wickr, BlackBerry BBM, Signal, WhatsApp across multiple platforms.
The AFP attempted to use the Proceeds of Crime Act to restrain property of innocent victims of money laundering. The circumstances of this case were highly suggestive of ‘cuckoo smurfing’. The WA Supreme Ct ordered the AFP to return the innocent victim’s money. I acted for the successful innocent parties in this matter.
Some notes on how to recover money from WA Police where the client has not been charged and has not been served with a Freezing notice under the Criminal Property Confiscation Act.
When a substance is a derivative of a prohibited drug for offences eg possess, sell, supply under the Misuse of Drugs Act: guidance from the Court of Appeal in the recent decision of Clegg v WA [No 2].
Privilege against self-incrimination as it affects a company and its directors: comments on an interesting judgment of the Supreme Court of WA: WA v Galati
Former Assistant US Attorney Stefan Cassella on Civil Asset Forfeiture
There has been a lot of criticism leveled at authorities in many countries, particularly the US, over the use that is made of civil confiscations or proceeds of crime laws.
Without a doubt there have been abuses of these powers, just as there are from time to time abuses of criminal prosecution processes.
In this article a former US Federal prosecutor makes the case for civil forfeiture. It is a well-written piece by an eminently qualified author.
My only caveat is that I think the abuses that the US has seen have been at the State and County, not Federal, level.
Perspectives of an ex Federal Prosecutor who is familiar with Mossack Fonseca on likely responses of Australian authorities (ATO, AFP) to the Panama Papers.
The High Court struck down the Bell Act (WA) in Bell Group NV (in Liquidation) v Western Australia  HCA 21 on 16 May 2016.
The convergence of family law with criminal property confiscation or proceeds of crime proceedings can complicate matters for both criminal & family lawyers. I set out some basic principles and considerations when your client is affected by both family law and confiscation or proceeds of crime proceedings.
The High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate held that regulators and respondents in civil penalty proceedings can agree a penalty, and that provided the Court is satisfied as to the appropriateness of the agreed penalty, it may impose it. The High Court expressly distinguished Barbaro v The Queen, which was concerned with criminal sentencing.
Federal offenders are almost exclusively dealt with in State courts. In some matters courts have compared criminality in federal offending and state offending. As a result of this there has been some divergence in the range of sentences across the states and territories. The High Court in The Queen v Pham  HCA 39 held offenders should be sentenced in accordance with the range of sentences across all states and territories.
The High Court also affirmed the proposition that quantity of drugs is not the sole determiner of the appropriate sentence.
On 2 May 2015 the federal Treasurer, the Hon Joe Hockey MP, announced a reduced penalty period (running from 2 May to 30 November 2015) in which people who have purchased Australian real estate without the necessary approval (or contrary to the conditions on an approval) under the Foreign Acquisitions and Takeovers Act 1975 (Cth) can come forward and voluntarily disclose. The government is also aiming to amend the Foreign Acquisitions and Takeovers Act 1975 to increase criminal penalties and add civil penalties.
Presentation on Drug Trafficker Cases under the Criminal Property Confiscation Act 2000 (WA) by Edward Greaves. Full text paper available for free download.
I will be presenting at Legalwise Seminars’ Criminal Law Symposium in Perth on 26 March 2015. My presentation is on the topic of Drug Trafficker cases under the Criminal Property Confiscations Act 2000 (WA).
The WA Supreme Court has construed the words “cross-demand” in s 459H Corporations Act broadly (see Qube Logistics v United Equipment), thus allowing a wide category of debts (that could not be pleaded as a set off in debt recovery proceedings) to be classed as “offsetting claims.”
Australia has recently undergone a Financial Action Task Force (FATF) evaluation. A recent Radio National program considers AUSTRAC’s emphasis on education rather than regulation and enforcement and analyses its effectiveness.
The High Court stayed Proceeds of Crime action pending the criminal trial in Commissioner of AFP v Zhao & Jin handed down 12 February 2015. The judgment considers sections 319 and 266A of the Proceeds of Crime Act 2002.