FINANCIAL TRANSACTION REPORTS ACT 1988

PART II - TRANSACTION REPORTS  

Division 2 - Reports of suspect transactions  

SECTION 16   REPORTS OF SUSPECT TRANSACTIONS  

16(1)  


Subject to subsections (4A) and (4B), where:


(a) a cash dealer is a party to a transaction; and


(b) the cash dealer has reasonable grounds to suspect that information that the cash dealer has concerning the transaction:


(i) may be relevant to investigation of an evasion, or attempted evasion, of a taxation law; or

(ii) may be relevant to investigation of, or prosecution of a person for, an offence against a law of the Commonwealth or of a Territory; or

(iii) may be of assistance in the enforcement of the Proceeds of Crime Act 1987 or the regulations made under that Act; or

(iv) may be of assistance in the enforcement of the Proceeds of Crime Act 2002 or the regulations made under that Act;

the cash dealer, whether or not required to report the transaction under Division 1 or 3 , shall, as soon as practicable after forming that suspicion:


(c) prepare a report of the transaction; and


(d) communicate the information contained in the report to the AUSTRAC CEO.

16(1A)  


Subject to subsections (4A) and (4B), where:


(a) a cash dealer is a party to a transaction; and


(b) either:


(i) the cash dealer has reasonable grounds to suspect that the transaction is preparatory to the commission of a financing of terrorism offence; or

(ii) the cash dealer has reasonable grounds to suspect that information that the cash dealer has concerning the transaction may be relevant to investigation of, or prosecution of a person for, a financing of terrorism offence;

the cash dealer, whether or not required to report the transaction under Division 1 or 3, must, as soon as practicable after forming the suspicion:


(c) prepare a report of the transaction; and


(d) communicate the information contained in the report to the AUSTRAC CEO.

16(2)  


A report under subsection (1) or (1A) shall:


(a) be prepared in the approved form;


(b) contain the reportable details of the transaction;


(c) contain a statement of the grounds on which the cash dealer holds the suspicion referred to in the subsection under which the report is prepared; and


(d) be signed by the cash dealer.

16(3)  


A communication under subsection (1) or (1A) shall be made to the AUSTRAC CEO:


(a) by giving the AUSTRAC CEO a copy of the report; or


(b) in such other manner and form as is approved by the AUSTRAC CEO, in writing, in relation to the cash dealer or to a class of cash dealers that includes the cash dealer.

16(4)  


Where a cash dealer communicates information to the AUSTRAC CEO under subsection (1) or (1A), the cash dealer shall, if requested to do so by:


(a) the AUSTRAC CEO;


(b) a relevant authority; or


(c) an investigating officer who is carrying out an investigation arising from, or relating to the matters referred to in, the information contained in the report;

give such further information as is specified in the request to the extent to which the cash dealer has that information.

16(4A)  


Subsections (1) and (1A) do not impose any obligations on a cash dealer in relation to a transaction if:


(a) the cash dealer is a reporting entity; and


(b) the transaction occurs after 11 March 2010; and


(c) the transaction is a designated service transaction.

16(4B)  


Subsection (1) or (1A) does not apply in relation to a transaction if the cash dealer complies with section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in relation to the transaction.

16(5)  
An action, suit or proceeding does not lie against:


(a) a cash dealer; or


(b) an officer, employee or agent of the cash dealer acting in the course of that person ' s employment or agency;

in relation to any action by the cash dealer or person taken:


(c) under this section; or


(d) in the mistaken belief that such action was required under this section.

16(5A)  


Where a cash dealer communicates to the AUSTRAC CEO, under subsection (1) or (1A), information about the cash dealer ' s suspicion in relation to a transaction to which the cash dealer is a party, the cash dealer must not disclose to anyone else:


(a) that the cash dealer has formed the suspicion; or


(b) that information has been communicated to the AUSTRAC CEO; or


(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that the suspicion had been formed or that the first-mentioned information had been communicated.

16(5AA)  


If a cash dealer gives further information pursuant to a request under subsection (4), the cash dealer must not disclose to anyone else:


(a) that the information has been given; or


(b) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that the first-mentioned information had been given.

16(5B)  


A cash dealer who contravenes subsection (5A) or (5AA) commits an offence punishable, upon conviction, by imprisonment for not more than 2 years.
Note:

Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on an individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

16(5C)  


Neither subsection (5A) nor (5AA) prohibits a cash dealer from communicating or disclosing to any court any information, or matter, referred to in that subsection, but this subsection does not affect the operation of subsection (5D).

16(5D)  


In any legal proceeding other than a prosecution for an offence against subsection 29(1) or 30(1) :


(a) none of the following is admissible in evidence:


(i) a report prepared (whether before or after the commencement of this subsection) under subsection (1) or (1A);

(ii) a copy of such a report;

(iii) a document purporting to set out information contained in such a report;

(iv) a document given (whether before or after the commencement of this subsection) under subsection (4); and


(b) evidence is not admissible as to:


(i) whether or not a report was prepared (whether before or after the commencement of this subsection) under subsection (1) or (1A); or

(ii) whether or not a copy of a report prepared under that subsection (whether before or after the commencement of this subsection), or a document purporting to set out information contained in such a report, was given to, or received by, the AUSTRAC CEO (whether before or after the commencement of this subsection); or

(iii) whether or not particular information was contained in a report prepared under that subsection (whether before or after the commencement of this subsection); or

(iv) whether or not particular information was given under subsection (4) (whether before or after the commencement of this subsection).

16(5E)  


In subsection (5D):

information
includes the formation or existence of a suspicion referred to in subsection (1) or (1A).

16(6)  


In this section:

financing of terrorism offence
means an offence under:


(a) section 102.6 or Division 103 of the Criminal Code ; or


(b) section 20 or 21 of the Charter of the United Nations Act 1945 .

investigating officer
means:


(a) a taxation officer; or


(b) an AFP member; or


(c) a customs officer (other than the Comptroller-General of Customs); or


(d) a staff member of ACLEI; or


(e) an examiner or member of the staff of the ACC.

relevant authority
means:


(a) the Commissioner of the Australian Federal Police; or


(aa) the Integrity Commissioner; or


(b) the Chief Executive Officer of the ACC; or


(c) the Commissioner of Taxation; or


(d) the Comptroller-General of Customs.

reportable details
, in relation to a transaction, means the details of the transaction that are referred to in Schedule 4 .




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