Explanatory Memorandum
(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)Schedule 4 - Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Item 1: section 61 - affixing notices about reporting obligations under Part 4
Part 4 of the AML/CTF Act imposes reporting obligations relating to the cross-border movement of physical currency and bearer negotiable instruments (BNIs). Section 61 of the AML/CTF Act gives a custom officer the power to affix written notices about these reporting obligations on any part of an aircraft or ship, or in any other place specified in the AML/CTF Rules.
This item amends section 61 of the AML/CTF Act to give a customs officer the power to arrange for another person to affix one or more such notices. For example, where Customs did not have presence at an airport, a customs officer could arrange for another airport employee to affix the notice.
Items 2 and 3: paragraphs 62(2)(a) and (b) - notice to travellers about reporting obligations under Part 4
These items will allow AML/CTF Rules to be made to give a person in charge of an aircraft or ship more flexibility as to how he or she can discharge his or her obligation to give travellers to Australia notice of reporting obligations under the AML/CTF Act relating to the cross-border movement of physical currency and BNIs.
Section 62 of the AML/CTF Act requires the person in charge of an aircraft or ship travelling to Australia (without stopping at any other place outside Australia) to give, or cause to be given, to all persons travelling on the aircraft or ship, a copy of a written notice about reporting obligations relating to the cross-border movement of physical currency and BNIs.
Item 2 amends paragraph 62(2)(a) of the AML/CTF Act to allow the person in charge of an aircraft or ship to communicate the information contained in the written notice in the manner prescribed by the AML/CTF Rules. The AML/CTF Rules are disallowable.
Item 3 amends paragraph 62(2)(b) of the AML/CTF Act to allow the person in charge of an aircraft or ship to cause the information contained in the written notice to be communicated in the manner prescribed by the AML/CTF Rules.
Item 4: subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv) and (v) -admissibility of information about threshold transaction reports and IFTIs
This item amends subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv) and (v) of the AML/CTF Act to clarify that any further information provided about a threshold transaction report or an international funds transfer instruction (IFTI) report under subsection 49(1) of the AML/CTF Act can be admitted as evidence in court or tribunal proceedings.
The proposed amendments will ensure that any such information has the same status as the threshold transaction report and IFTI report, which are admissible in court or tribunal proceedings.
Item 5: subsections 128(4) and (9) - disclosures relating to suspect transaction reports
This item will prohibit disclosures by an official of a designated agency about suspect transaction reports obtained under section 16 the FTR Act, where the disclosure is for the purpose of court or tribunal proceedings or an investigation.
It is an offence under section 127 of the AML/CTF Act for an official of a designated agency to disclose AUSTRAC information to another person unless authorised to do so. An official of a designated agency is authorised under subsections 128(3) and 128(8) of the AML/CTF Act to disclose AUSTRAC information:
- 1)
- to a person for the purposes of, or in connection with, court or tribunal proceedings, or proposed or possible court or tribunal proceedings
- 2)
- to a person for the purpose of obtaining legal advice
- 3)
- in the course of court or tribunal proceedings, or
- 4)
- to a person for the purpose of, or in connection with, an investigation or a proposed or possible investigation.
However, in these circumstances an official is not authorised to disclose AUSTRAC information that was obtained as part of a suspicious matter report (under section 41 of the AML/CTF Act) or further information provided in relation to a suspicious matter report (obtained under section 49 of the AML/CTF Act).
Information obtained under section 16 of the FTR Act can currently be disclosed under subsections 128(3) and 128(8) of the AML/CTF Act. This information relates to suspect transactions and is of a similar nature to information relating to suspicious matter reports obtained under sections 41 and 49 of the AML/CTF Act.
This item will amend subsections 128(4) and (9) of the AML/CTF Act to ensure that suspect transaction reports obtained under section 16 of the FTR Act are subject to the same prohibition on disclosure as suspicious matter reports obtained under the AML/CTF Act. Item 5 provides that an official of a designated agency is not authorised to disclose AUSTRAC information obtained under section 16 of the FTR Act where the disclosure is for the purpose of court or tribunal proceedings or an investigation.
Items 6 and 7: sections 130 and 131 - disclosures by officials of a non-designated Commonwealth agency
Items 6 and 7 amend sections 130 and 131 of the AML/CTF Act to prohibit officials from a non-designated Commonwealth agency from disclosing certain AUSTRAC information.
The proposed amendments will strengthen the safeguards under the AML/CTF Act which protect against the disclosure of sensitive AUSTRAC information relating to suspicious matters obtained under the AML/CTF Act and suspect transaction reports obtained under the FTR Act.
Item 8 - application
This item sets out the application of the proposed amendments. Information obtained before the commencement of these provisions will be subject to the new restrictions on disclosure. However, the penalties are not retrospective and will only apply after commencement.
Item 2 will apply in relation to aircraft or ships leaving a place outside Australia on or after the commencement of Item 2.
Item 4 will apply in relation to court or tribunal proceedings instituted on or after the commencement of Item 4.
Item 5 will apply in relation to information obtained under section 16 of the FTR Act before, on or after the commencement of Item 5.
Items 6 and 7 will apply to AUSTRAC information obtained before, on or after the commencement of these Items.