Understanding Cash Payment Limit Offences
Within the realm of offences with a fault element, there are two categories: one for a single payment and another for a series of payments. These offences operate under similar circumstances as discussed in a previous article, with nearly identical wording except for the absence of strict liability and the level of penalty imposed. (Refer to proposed S.13 of the Bill.)
Fault Element and Penalty:
In these cases, as no specific fault element is specified, the standard fault element for circumstances is recklessness (S.5.6(2) of the Criminal Code). This means an entity commits these offences if, in addition to satisfying the requirements for the strict liability offences, they knew there was a real risk the payment would result in the total cash amount reaching or exceeding the cash payment limit.
The prescribed maximum penalty for each of these fault-based offences is substantially higher than for strict liability offences: two years of imprisonment and/or a fine of 120 penalty units ($25,200). This higher penalty reflects the greater culpability involved in deliberately or recklessly breaching the cash payment limit.
Definition of 'Cash' and Determining Value:
'Cash' encompasses both digital and physical currency. However, transactions involving digital currency (e.g., Bitcoin) are currently exempt from the cash payment limit until their use poses a material risk similar to that of physical currency.
The value of 'cash' is determined at the time of payment, based on its face value as currency. Any additional value beyond its exchange medium, such as collectible coins, is irrelevant for the cash payment limit.
In cases involving foreign or digital currency, the Treasurer is expected to provide methods for converting such payments into Australian dollars.
Applicability and Scope:
These new offences apply to all entities as defined in S.960-100(1) of the ITAA 1997. They apply when the conduct constituting the offence occurs in Australia or on board an Australian aircraft or ship, and the payment(s) forming the offence are wholly or partly for a supply made wholly or partly in Australia.
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