House of Representatives
Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019
Addendum to the Explanatory Memorandum
(Circulated by the authority of the Minister for Home Affairs, the Honourable Peter Dutton MP)The purpose of this addendum is to provide additional material to the Explanatory Memorandum to the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019 (the Bill). This addendum responds to a request by the Senate Standing Committee for the Scrutiny of Bills in its Scrutiny Digest 8 of 2019 (14 November 2019).
Addendum to the Explanatory Memorandum
Part 3, Item 24, After subsection 123(5A)
After paragraph 103 on page 23, insert the following paragraphs:
The defendant has an evidential burden in relation to making out the exception contained in subsection 123(5B). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
For example, it would be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to disprove than for the defendant to establish, that SMR related information was disclosed to a person appointed or engaged by the defendant for the purposes of auditing or reviewing the defendant's AML/CTF program.
Part 3, Item 26, Subsections 123(7) and (7AA)
After paragraph 114 on page 25, insert the following paragraph:
The defendant has an evidential burden in relation to making out the exception contained in subsection 123(7). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
After paragraph 116 on page 25, insert the following paragraph:
The defendant has an evidential burden in relation to making out the exception contained in subsection 123(7AB). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
Part 4, Item 50, After section 50
After paragraph 167 on page 30, insert the following paragraphs:
The defendant has an evidential burden in relation to making out an exception contained in subsection 50A(2). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
For example, it would be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to disprove than for the defendant to establish, that the defendant made a record of, disclosed or otherwise used information obtained under section 49 or section 50A for the purposes of, or in connection with, the performance of the defendant's duties as an entrusted investigating official.
Part 4, Item 51, Divisions 1 and 2 of Part 11
After paragraph 173 on page 31, insert the following paragraph:
The defendant has an evidential burden in relation to making out an exception contained in subsection 121(2). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
Part 4, Item 51, Divisions 1 and 2 of Part 11
After paragraph 178 on page 32, insert the following paragraphs:
The defendant has an evidential burden in relation to making out an exception contained in subsection 121(3). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
For example, it would be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to disprove than for the defendant to establish, that the defendant disclosed AUSTRAC information to an official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance of that official's functions, duties or powers in relation to the agency.
Part 4, Item 55, Division 4 of Part 11
After paragraph 207 on page 35, insert the following paragraph:
The defendant has an evidential burden in relation to making out an exception contained in subsection 126(2). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
After paragraph 208 on page 35, insert the following paragraphs:
The defendant has an evidential burden in relation to making out an exception contained in subsection 126(3). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
For example, it would be peculiarly within the knowledge of the defendant and significantly more difficult for the prosecution to disprove than for the defendant to establish, that the defendant disclosed AUSTRAC information for the purposes of court or tribunal proceedings or for obtaining legal advice.
After paragraph 210 on page 35, insert the following paragraph:
The defendant has an evidential burden in relation to making out an exception contained in subsection 126(5). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
After paragraph 224 on page 37, insert the following paragraph:
The defendant has an evidential burden in relation to making out an exception contained in subsection 129(2). This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
Part 5, Item 75, Divisions 1 to 3 of Part 4
At the end of paragraph 281 on page 42, insert the following sentence:
This is appropriate in this instance as the information to prove its existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.