FINANCIAL TRANSACTION REPORTS ACT 1988

PART I - PRELIMINARY  

SECTION 1   1   SHORT TITLE  
This Act may be cited as the Financial Transaction Reports Act 1988.

SECTION 2   COMMENCEMENT  

2(1)   [Royal Assent]  

Section 1 and this section shall come into operation on the day on which this Act receives the Royal Assent.

2(2)   [Proclamation]  

The remaining provisions of this Act shall come into operation on a day or days fixed by Proclamation.

SECTION 3   INTERPRETATION  

3(1)  


In this Act, unless the contrary intention appears:

ACC
means the Australian Crime Commission.

acceptable referee
means a person in a class of persons declared by the Minister, by notice in the Gazette, to be acceptable referees for the purposes of this definition.

account
means (except in Part VIA) any facility or arrangement by which a cash dealer does any of the following:


(a) accepts deposits of currency;


(b)allows withdrawals of currency;


(c) pays cheques or payment orders drawn on the cash dealer by, or collects cheques or payment orders on behalf of, a person other than the cash dealer;

and includes any facility or arrangement for a safety deposit box or for any other form of safe deposit, but does not include an arrangement for a loan that sets out the amounts and times of advances and repayments, being amounts and times from which the borrower and lender may not depart during the term of the loan.

Note:

Section 40C defines account for the purposes of Part VIA.

account information
, in relation to an account with a cash dealer, means:


(a) information identifying the account, including any identifying number; and


(b) the name in which the account is held; and


(c) information, and documents, provided to the cash dealer by the holder of the account (whether provided in relation to that account or another account), as follows:


(i) an address, not being a Post Office Box address, for the holder of the account;

(ii) if the account is held in:

(A) the name or names of an individual or individuals; or

(B) the name of an unincorporated association-
that fact;

(iii) if the account is held in the name of a body corporate (other than as a trustee) - that fact and a copy of the certificate of incorporation (if any) of the body corporate;

(iv) if the account is held in a business name registered on the Business Names Register - that fact and a copy of the entry in the Business Names Register obtained under section 60 of the Business Names Registration Act 2011 relating to the business name and containing the details referred to in paragraphs 33(1)(a), (b), (d) and (e) of that Act (identification details, business name, address for service and period of registration);

(iva) if the account is held in a business name of which registration on the Business Names Register has been applied for but not yet obtained - that fact and a copy of the application;

(v) if the account is held in trust - that fact and the prescribed details of the trustees and beneficiaries of the trust.

acting member of the NCA
(Repealed by No 125 of 2002)

ADI
(authorised deposit-taking institution) means:


(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or


(b) the Reserve Bank of Australia; or


(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

AFP member
means a member or special member of the Australian Federal Police.

Agency
(Repealed by No 188 of 1991)

approved
means approved by the AUSTRAC CEO, in writing, for the purposes of the provision in which the term occurs.

approved cash carrier
means a cash dealer declared by the AUSTRAC CEO to be an approved cash carrier under section 8.

AUSTRAC
means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

AUSTRAC CEO
means the Chief Executive Officer of AUSTRAC.

Australia
, when used in a geographical sense, includes the external Territories.

Australian Bureau of Criminal Intelligence
(Repealed by No 125 of 2002)

authorised officer
means a person in respect of whom an appointment as an authorised officer for the purposes of this Act is in force under section 27A.

bank
(Repealed by Act No 48 of 1998)

banker
includes a body corporate that is an ADI.

Board of the ACC
means the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002.

building society
(Repealed by Act No 44 of 1999)

bullion seller
means a person who carries on a business of selling bullion.

business hours
, in relation to a place, means the period between 9 am and 5 pm on a day other than:


(a) a Saturday; or


(b) a Sunday; or


(c) a day that is a public holiday in that place.

Business Names Register
means the Register established and maintained under section 22 of the Business Names Registration Act 2011.

business premises
, in relation to a person, means premises, or a part of premises, of the person used, wholly or partly, for the purposes of business operations of the person, but does not include premises, or a part of premises, used as a place of residence.

cash dealer
means:


(a) a financial institution;


(b) a body corporate that is, or, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51(xx) of the Constitution;


(c) a motor vehicle dealer who acts as an insurer or insurance intermediary;


(d) a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers either or both of the following:


(i) dealing in securities (as defined by subsection 92(1) of the Corporations Act 2001);

(ii) dealing in derivatives (as defined by section 761A of the Corporations Act 2001);


(e) (Repealed by No 123 of 2001)


(f) a Registrar or Deputy Registrar of a Registry established under section 14 of the Commonwealth Inscribed Stock Act 1911;


(g) a trustee or manager of a unit trust;


(h) a person who carries on a business of issuing, selling or redeeming travellers cheques, money orders or similar instruments;


(j) a person who is a bullion seller.


(k) a person (other than a financial institution or a real estate agent acting in the ordinary course of real estate business) who carries on a business of:


(i) (Repealed by No 130 of 2017)

(ia) exchanging one currency for another, or converting currency into prescribed commercial instruments, on behalf of other persons; or

(ib) remitting or transferring currency or prescribed commercial instruments, or making electronic funds transfers, into or out of Australia on behalf of other persons or arranging for such remittance or transfer; or

(ii) preparing pay-rolls on behalf of other persons in whole or in part from currency collected; or

(iii) (Repealed by No 130 of 2017)


(l) a person (other than a financial institution or a real estate agent acting in the ordinary course of real estate business) who carries on a business in Australia of:


(i) on behalf of other persons, arranging for funds to be made available outside Australia to those persons or others; or

(ii) on behalf of persons outside Australia, making funds available, or arranging for funds to be made available, in Australia to those persons or others;


(m) a person who carries on a business of operating a gambling house or casino; and


(n) a bookmaker, including a totalisator agency board and any other person who operates a totalisator betting service.

cash transaction
means a transaction involving the physical transfer of currency from one person to another.

Centrelink officer
(Repealed by No 170 of 2006)

Child Support Agency
(Repealed by No 170 of 2006)

citizenship certificate
, in respect of a person, means a certificate, declaration, notice or other instrument in respect of the person's status as an Australian citizen or British subject, or otherwise in respect of the person's nationality, issued under:


(aa) the Australian Citizenship Act 2007; or


(a) the Australian Citizenship Act 1948;


(b) (Repealed by No 21 of 2007)


(c) (Repealed by No 21 of 2007)

or under regulations made under either of those Acts.

commence to provide a designated service
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

commercial goods carrier
means a person who, in the normal course of a lawful business, carries goods or mail for reward.

commercial passenger carrier
means a person who, in the normal course of a lawful business, carries passengers for reward.

Commissioner
means the Commissioner of Taxation.

Comptroller-General of Customs
means the person who is the Comptroller-General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015.

co-operative housing society
means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory.

credit union
(Repealed by Act No 44 of 1999)

CSA officer
(Repealed by No 170 of 2006)

CTR information
(Repealed by No 188 of 1991)

currency
means the coin and paper money of Australia or of a foreign country that:


(a) is designated as legal tender; and


(b) circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue.

customer-generated financial transaction document
has the meaning given by section 40D.

customs officer
means an officer of Customs within the meaning of the Customs Act 1901.

designated service
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

designated service transaction
: if:


(a) a reporting entity provides, or commences to provide, a designated service to acustomer (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006); and


(b) the provision of the service involves a transaction;

the transaction is a designated service transaction .

Director
(Repealed by No 170 of 2006)

established customer
, in relation to a financial institution as at a particular time, means a person who has been a customer of the financial institution for not less than 12 months immediately preceding that time.

examiner
has the same meaning as in the Australian Crime Commission Act 2002.

financial institution
means:


(a) an ADI; or


(b) a co-operative housing society;

and, in Part VIA, includes:


(c) a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and


(d) a person who carries on a business of operating a casino; and


(e) a totalisator agency board.

foreign currency
means the currency of a foreign country.

FTR information
means information obtained by the AUSTRAC CEO under Part II and includes information included in a notice under subsection 22(1) or in a copy of a record given under subsection 24(5).

futures broker
(Repealed by No 123 of 2001)

given name
means a name other than a surname.

identification document
means a primary identification document or a secondary identification document.

identification record
has the meaning given by section 20A or section 24C, as the context requires.

identification reference
has the meaning given by section 21.

identifying cash dealer
means a cash dealer in respect of whom a declaration under section 8A is in force.

insurance broker
means a person who carries on the business of arranging contracts of insurance, whether in Australia or elsewhere, as agent for intending insureds.

insurance business
means the business of undertaking liability, by way of insurance (including reinsurance), in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event, and includes any business incidental to insurance business as so defined, but does not include:


(a) health insurance business within the meaning of Division 121 of the Private Health Insurance Act 2007 carried on by a private health insurer within the meaning of that Act; or


(b) business undertaken by a person, being an innkeeper or lodging-house keeper, relating only to the person's liability in respect of goods belonging to another person and in the possession or under the control of a guest at the inn or lodging-house of which the first-mentioned person is the innkeeper or lodging-house keeper or deposited with the innkeeper or lodging-house keeper for safe custody; or


(c) the business of insuring property of a registered religious institution (within the meaning of the Fringe Benefits Tax Assessment Act 1986) where the person carrying on the business does not carry on any other insurance business.

insurance intermediary
means a person who:


(a) for reward; and


(b) as an agent for one or more insurers or as an agent of intending insureds;

arranges contracts of insurance in Australia or elsewhere, and includes an insurance broker.

insured
means a person (other than the insurer) who is entitled to a benefit under a contract of life insurance.

insurer
means a person who carries on an insurance business.

Integrity Commissioner
has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

Inter-Governmental Committee
(Repealed by No 170 of 2006)

international funds transfer instruction
means an instruction for a transfer of funds that is transmitted into or out of Australia electronically or by telegraph, but does not include an instruction of a prescribed kind.

international travel document
means:


(a) a current passport; or


(b) an expired passport that:


(i) was not cancelled; and

(ii) was current within the preceding 2 years; or


(c) another current identity document, having the characteristics of a passport, issued by a government, the United Nations or an Agency of the United Nations for the purposes of international travel.

member of the NCA
(Repealed by No 125 of 2002)

member of the staff of the ACC
has the same meaning as in the Australian Crime Commission Act 2002.

member of the staff of the NCA
(Repealed by No 125 of 2002)

member of the staff of the Police Integrity Commission
(Repealed by No 170 of 2006)

minimum retention period
has the meaning given by section 40E.

NCA
(Repealed by No 125 of 2002)

NCA Act
(Repealed by No 125 of 2002)

non-reportable cash transaction
means a cash transaction:


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


(b) that is not a significant cash transaction or is an exempt cash transaction; and


(c) that is not a designated service transaction that occurred after the commencement of Division 3 of Part 3 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

non-reportable currency transfer
(Repealed by No 144 of 2005)

non-reportable transfer
, in relation to currency, means a transfer of currency out of Australia or into Australia in respect of which a report under section 15 is not required.

official
, in relation to a Royal Commission, means:


(a) a legal practitioner appointed to assist the Commission; or


(b) a person otherwise assisting the Commission and authorised in writing by the sole Commissioner or a member of the Commission.

paper money
means money comprising a note written, printed or otherwise made on paper or any other material.

Police Integrity Commission
(Repealed by No 170 of 2006)

police officer
means:


(a) an AFP member; or


(b) a member of the police force of a State or Territory.

prescribed commercial instrument
means:


(a) a cheque, bill of exchange, promissory note or other like instrument creating an entitlement to currency; or


(b) any instrument (including an electronic instrument) that is declared to be a prescribed commercial instrument for the purposes of this definition.

primary identification document
, in relation to a person, in a particular name, means:


(a) a certified copy, or an extract, of a birth certificate of the person; or


(b) a certified copy of a citizenship certificate of the person; or


(c) an international travel document for the person; or


(d) any other prescribed document;

that shows that name as the person's name.

produce
includes permit access to.

public authority
means an authority or body, whether a body corporate or not, established or incorporated for a public purpose by or under a law of the Commonwealth or of a State or Territory.

reporting entity
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

reporting period
, in relation to asignificant cash transaction, means:


(a) if the transaction involves foreign currency - the period ending at the end of the day after the day on which the transaction takes place or such longer period as is prescribed by the regulations;


(b) if the transaction does not involve foreign currency - the period ending at the end of 15 days after the day on which the transaction takes place.

required details
, in relation to an identification document, means:


(a) in the case of a birth certificate - the name and date of birth of the person in respect of whose birth the certificate is given and the date and office of issue of the certificate;


(b) in the case of a citizenship certificate - the name and date of birth of the person in respect of whom the certificate is issued, the date of issue of the certificate and the name of the person who issued the certificate;


(c) in the case of a passport - the name and date of birth of the person to whom the passport is issued and the country and date of issue and the number of the passport; and


(d) in the case of a secondary identification document - the name shown in the document as the name of the person to whom or in respect of whom the document was issued, the date of birth of that person (if shown), the address of that person (if shown), the kind of document, the person who or the authority that issued the document, the identifying number (if any) of the document and the date of issue or expiry (if any) of the document.

retail business
means a business:


(a) the principal element of which is the provision of goods to ultimate consumers; and


(b) the takings or receipts of which include substantial amounts of currency.

Royal Commission
(Repealed by No 170 of 2006)

Royal Commission into the New South Wales Police Service
(Repealed by No 170 of 2006)

RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.

secondary identification document
, in relation to a person in a particular name, means a document (other than a primary identification document) which establishes the identity of the person in that name.

securities dealer
(Repealed by No 123 of 2001)

send
, in relation to currency, includes send through the post.

signatory
, in relation to an account with a cash dealer, means the person, or one of the persons, on whose instructions (whether required to be in writing or not and whether required to be signed or not) the cash dealer conducts transactions in relation to the account.

signatory information
, in relation to a signatory to an account with a cash dealer, means information and documents (whether obtained by the cash dealer in relation to that account or another account), as follows:


(a) the name used by the signatory as his or her name in relation to that account;


(b) if the account is held in the name of an unincorporated association - a copy of the instrument authorising the signatory to sign;


(c) any other name by which the signatory is commonly known, being a name disclosed to the cash dealer;


(d) an identification record for the signatory in accordance with section 20A.

significant cash transaction
means a cash transaction involving the transfer of currency of not less than $10,000 in value.

solicitor
means a person who practises as a solicitor, whether by himself or herself, as a member of a solicitor corporation or as a member of a partnership of solicitors, and whether or not the person also practises as a barrister.

staff member of ACLEI
has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

State
includes the Northern Territory.

surname
includes a family name.

taxation law
has the same meaning as in the Taxation Administration Act 1953.

taxation officer
means:


(a) a Second Commissioner of Taxation;


(b) a Deputy Commissioner of Taxation; and


(c) a person appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.

Territory
does not include the Northern Territory.

totalisator agency board
means a board or authority established by or under a law of a State or Territory for purposes that include the purpose of operating a betting service.

transaction
, in Division 2 of Part II, has a meaning affected by subsection 3(7).

unit trust
means a trust to which a unit trust scheme relates and includes:


(a) a cash management trust;


(b) a property trust; and


(c) an arrangement declared by the Minister, by notice in writing published in the Gazette, to be a unit trust for the purposes of this definition;

but does not include an arrangement declared by the Minister, by notice in writing published in the Gazette, not to be a unit trust for the purposes of this definition.

unit trust scheme
means any arrangement made for the purpose, or having the effect, of providing, for a person having funds available for investment, facilities for the participation by the person as a beneficiary under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property pursuant to the trust.

3(2)  
A reference in this Act to a document being signed by a party to a transaction includes a reference to the document being signed on the party's behalf.

3(3)  
A reference in this Act to transferring currency out of Australia is a reference to taking or sending currency out of Australia.

3(4)  
A reference in this Act to transferring currency into Australia is a reference to bringing or sending currency into Australia.

3(5)  
For the purposes of this Act, where a person's name consists of one or more given names and a surname, the following names shall be taken not to be different from one another:


(a) a name consisting of that given name or those given names and that surname;


(b) a name consisting of any one or more of those given names and that surname;


(c) a name consisting of a nickname of the person and that surname;


(d) a name consisting of a nickname of the person, that given name or those given names and that surname;


(e) a name consisting of a nickname of the person, one or more of those given names and that surname.

3(6)  
A reference in subsection (5) to a given name of a person includes a reference to a diminutive form or Anglicised form of a given name of the person.

3(7)  


Division 2 of Part II applies in relation to a proposal for a transaction, or negotiations for a transaction, in the same way as it applies in relation to a completed transaction.

SECTION 3A   3A   TRANSLATION OF FOREIGN CURRENCY TO AUSTRALIAN CURRENCY  


In determining, for the purposes of this Act, whether an amount of foreign currrency (including an amount in which a bearer negotiable instrument or other document is denominated) is not less than an Australian dollar amount, the amount of foreign currency is to be translated to Australian currency at the exchange rate applicable at the relevant time.

SECTION 4   OBJECTS OF ACT  

4(1)   [Principal object]  

The principal object of this Act is to facilitate the administration and enforcement of taxation laws.

4(2)   [Administration and enforcement of Commonwealth laws]  

A further object of this Act is to facilitate the administration and enforcement of laws of the Commonwealth and of the Territories (other than taxation laws).

4(3)   [Administration and enforcement of State laws]  

Without prejudice to the effect of this Act by virtue of subsections (1) and (2), a further object of this Act is to make information collected for the purposes referred to in subsection (1) or (2) available to State authorities to facilitate the administration and enforcement of the laws of the States.

SECTION 5   ACT TO BIND CROWN  

5(1)  


This Act binds the Crown in right of the Commonwealth, of each of the States and of the Australian Capital Territory.

5(2)  


Nothing in this Act renders the Crown in right of the Commonwealth, of a State or of the Australian Capital Territory liable to be prosecuted for an offence.

SECTION 6   6   ACT TO APPLY BOTH WITHIN AND OUTSIDE AUSTRALIA  
This Act applies throughout the whole of Australia and also applies outside Australia.

SECTION 6A   6A   APPLICATION OF THE CRIMINAL CODE  
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

PART II - TRANSACTION REPORTS  

Division 1 - Cash transaction reports by cash dealers  

SECTION 7   REPORTS OF SIGNIFICANT CASH TRANSACTIONS BY CASH DEALERS  

7(1)   [Obligation of cash dealer]  

Where a cash dealer is a party to a significant cash transaction, the dealer shall, before the end of the reporting period:


(a) prepare a report of the transaction; and


(b) communicate the information contained in the report to the AUSTRAC CEO;

unless:


(c) the transaction is, at the time when it occurs, an exempt transaction; or


(d) the transaction is, at the time when it occurs, eligible for exemption and becomes, before the end of the reporting period, an exempt transaction; or


(e) the cash dealer is an approved cash carrier; or


(f) all of the following conditions are satisfied:


(i) the cash dealer is a reporting entity;

(ii) the transaction occurred after 11 March 2010;

(iii) the transaction is a designated service transaction.

7(1A)   [Reports of threshold transactions]  

Subsection (1) does not apply in relation to a transaction if the cash dealer complies with section 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in relation to the transaction.

7(2)   [Form and contents of report]  

The report shall be prepared in the approved form, contain the reportable details of the transaction and be signed by the cash dealer or otherwise authenticated by the cash dealer in a way approved by the AUSTRAC CEO.

7(3)   [Communication to AUSTRAC CEO]  

The communication 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.

7(4)   ["reportable details"]  

In this section:

"reportable details"
, in relation to a transaction, means the details of the transaction that are referred to in Schedule 1.

SECTION 8   APPROVED CASH CARRIERS  

8(1)   [Declaration by AUSTRAC CEO]  

The AUSTRAC CEO may, by notice published in the Gazette, declare a cash dealer, being a person referred to in paragraph (k) of the definition of cash dealer in subsection 3(1), to be an approved cash carrier if the AUSTRAC CEO is satisfied that:


(a) the cash dealer maintains records containing reportable details of significant cash transactions to which the cash dealer is a party; and


(b)the declaration of the cash dealer as an approved cash carrier would not be inconsistent with the objects of this Act.

8(2)   [``reportable details'']  

In this section:

"reportable details"
has the same meaning as in section 7.

SECTION 8A   IDENTIFYING CASH DEALERS  

8A(1)   [Application by cash dealer]  

A cash dealer may apply in writing to the AUSTRAC CEO to be declared an identifying cash dealer.

8A(2)   [Written undertaking]  

An application must be accompanied by a written undertaking in the approved form, by which the applicant undertakes:


(a) to carry out the verification procedures under paragraph 20A(1)(b), where that paragraph applies, and to take all reasonable steps to complete the procedures promptly in each case; and


(b) to report under section 16 in relation to information obtained by the applicant as a result of carrying out the procedures mentioned in paragraph (a); and


(c) to give the AUSTRAC CEO, in respect of such periods as are determined by the AUSTRAC CEO, written reports on the applicant's compliance with this Act; and


(d) to do such other things (if any) as are specified in the form.

8A(3)   [Signature by applicant]  

An application, and the undertaking accompanying it, must be signed by the applicant personally or, if the applicant is a body corporate, by its principal executive officer.

8A(4)   [Declaration by AUSTRAC CEO]  

On receipt of an application and an undertaking, the AUSTRAC CEO may, by notice in the Gazette, declare the applicant to be an identifying cash dealer if satisfied that such a declaration would not be inconsistent with the objects of this Act.

8A(5)   [Revocation or suspension of declaration]  

The AUSTRAC CEO may, by notice in the Gazette, revoke a declaration, or suspend it for a specified period or until a specified act is done, if satisfied that the relevant identifying cash dealer has failed to honour the undertaking given by the cash dealer under this section.

8A(6)   [Effect of revocation or suspension]  

A declaration stops being in force on its revocation or during a period when it is suspended.

8A(7)   [Forms to be used]  

The AUSTRAC CEO may, for the purposes of this section, approve different forms to be used by different classes of applicants.

8A(8)   [Definition]  

In this section:

"principal executive officer"
, in relation to a body corporate means the person who is for the time being its principal executive officer, whether or not the person is a director of the body corporate.

SECTION 9   EXEMPT CASH TRANSACTIONS  

9(1)   [Transactions between financial institution and another person]  

Subject to subsection (2), a significant cash transaction between a financial institution and another person is an exempt transaction, so far as the institution is concerned, if:


(a) the transaction has been entered in the institution's exemption register; or


(b) the transaction falls within a class of transactions entered in the institution's exemption register against the name of that person.

9(2)   [Exemption inconsistent with direction]  

Where the AUSTRAC CEO gives a financial institution a direction under subsection 11(3), a significant cash transaction between the financial institution and another person is not an exempt transaction, so far as the institution is concerned, if exemption of the transaction would be inconsistent with the direction.

9(3)   [Transactions between financial institution and cash dealer]  

Where:


(a) a significant cash transaction between a financial institution and another person is an exempt transaction so far as the financial institution is concerned; and


(b) the other person is a cash dealer;

the transaction is also an exempt transaction so far as the cash dealer is concerned.

9(4)   [Transactions between licensee and clearing facility]  

A significant cash transaction is also an exempt transaction if it is between:


(a) a financial services licensee (as defined by section 761A of the Corporations Act 2001) whose licence covers dealing in derivatives (as defined by that section); and


(b) a clearing and settlement facility (as defined by that section) that is associated with a financial market (as defined by that section) of which the financial services licensee is a member.

SECTION 10   TRANSACTIONS ELIGIBLE FOR EXEMPTION  

10(1)   [Transactions between financial institutions]  

A significant cash transaction is eligible for exemption if:


(a) the transaction is between a financial institution and another financial institution; or


(b) the transaction is between a cash dealer (not being a financial institution) and a financial institution.

10(2)   [Transactions with customers carrying on certain businesses]  

A significant cash transaction is also eligible for exemption if:


(a) the transaction is between a financial institution and another person (in this subsection called the ``customer'' );


(b) the customer is, at the time when the transaction takes place, an established customer of the institution;


(c) the transaction consists of a deposit into, or a withdrawal from, an account maintained by the customer with the institution;


(d) the customer carries on:


(i) a retail business (other than a business that includes the selling of vehicles, vessels, farm machinery or aircraft);

(ii) a business declared by the Minister, by notice in writing published in the Gazette, to be an entertainment business or a hospitality business for the purposes of this Act; or

(iii) a business of providing vending machines;


(e) the account is maintained for the purposes of that business; and


(f) the amount of currency involved in the transaction does not exceed an amount that is reasonably commensurate with the lawful business activities of the customer.

10(3)   [Withdrawals for pay-roll purposes]  

A significant cash transaction is also eligible for exemption if:


(a) the transaction is between a financial institution and another person (in this subsection called the ``customer'' );


(b) the customer is, at the time when the transaction takes place, an established customer of the institution;


(c) the transaction consists of a withdrawal from an account maintained by the customer with the institution;


(d) the withdrawal is made for pay-roll purposes;


(e) the customer regularly withdraws, from that account, currency of a value not less than $10,000 to pay the customer's staff and employees; and


(f) the amount of currency involved in the transaction does not exceed an amount that is reasonably commensurate with the lawful business activities of the customer.

10(4)   [Transactions between financial institution and public authority]  

A significant cash transaction to which a financial institution is a party is also eligible for exemption if:


(a) the other party to the transaction is a public authority; and


(b) the amount of currency involved in the transaction does not exceed an amount that is reasonably commensurate with the authorised activities of the authority.

10(5)   [Transactions declared eligible by Minister]  

A significant cash transaction is also eligible for exemption if it is declared by the Minister, by notice in writing published in the Gazette, to be eligible for exemption for the purposes of this Act.

10(6)   [Transfer of account between institutions]  

Where:


(a) a person (in this subsection called the ``customer'' ) has closed an account with a financial institution (in this subsection called the ``transferor institution'' ) and transferred the money that stood to the credit of that account to an account held by the person with another financial institution (in this subsection called the ``transferee institution'' ); and


(b) a significant cash transaction is conducted through the account held with the transferee institution at a time when the customer is not an established customer of the transferee institution;

the transaction is eligible for exemption if:


(c) the transaction would, if the customer were an established customer of the transferee institution at that time, be eligible for exemption under another subsection of this section;


(d) transactions falling within a particular class and conducted through the account held with the transferor institution were exempt transactions immediately before that account was closed; and


(e) either:


(i) the transaction is a transaction that would, had it been conducted through the account held with the transferor institution, have fallen within that class; or

(ii) the customer has been a customer of the transferee institution for not less than 3 months immediately preceding that time.

SECTION 11   FINANCIAL INSTITUTION MAY ENTER TRANSACTIONS IN EXEMPTION REGISTER  

11(1)  
Where:


(a) a financial institution is a party to a significant cash transaction;


(b) the institution believes that the transaction is eligible for exemption in accordance with section 10; and


(c) if the other party to the transaction is not a financial institution - the other party signs a written statement to the effect that:


(i) the party believes that the transaction is eligible for exemption in accordance with section 10; and

(ii) the information provided by the party to the institution in relation to the transaction is, to the best of his or her knowledge and belief, true and correct in all material particulars;

the institution may enter the transaction in its exemption register.

11(2)  
Where:


(a) a financial institution is a party to a significant cash transaction;


(b) the institution believes that the transaction is eligible for exemption in accordance with section 10;


(c) the institution believes that:


(i) the other party to the transaction is likely to enter, on a regular basis, into transactions of a similar kind with the institution; and

(ii) all cash transactions of that kind are eligible for exemption in accordance with section 10; and


(d) if the other party to the transaction is not a financial institution - the other party signs a written statement to the effect that:


(i) the party believes that the transaction and proposed transactions of that kind are eligible for exemption in accordance with section 10; and

(ii) the information provided by the party to the institution in relation to the transaction and in relation to proposed transactions of that kind is, to the best of his or her knowledge and belief, true and correct in all material particulars;

the institution may enter the class of transactions consisting of transactions of that kind, against the name of the other party, in its exemption register.

11(2A)  


Despite subsections (1) and (2), a financial institution must not enter a designated service transaction, or a class of designated service transactions, in its exemption register after 11 March 2010.

11(3)  


Where a financial institution has entered a class of transactions in its exemption register against the name of a person, the AUSTRAC CEO may, by written notice to the institution, direct the institution:


(a) to delete the entry from the exemption register; or


(b) to amend the entry so that it ceases to apply to transactions of a kind specified in the notice.

11(4)  


Where the AUSTRAC CEO gives a financial institution a direction under subsection (3), the institution:


(a) shall forthwith comply with the direction;


(b) if the direction is given under paragraph (3)(a) - shall not enter in its exemption register, against the name of the person concerned, the same or substantially the same class of transactions, or transactions falling within the same or substantially the same class of transactions, while the direction remains in force; and


(c) if the direction is given under paragraph (3)(b) - shall not enter in its exemption register, against the name of the person concerned, transactions of the kind, or a class of transactions of the kind, specified in the notice.

11(5)  


A financial institution that contravenes subsection (4) commits an offence against this subsection punishable, upon conviction, by a fine not exceeding 50 penalty units.

11(6)  
Subject to subsection (4), a financial institution may, at any time, delete an entry from, or amend an entry in, its exemption register.

SECTION 12   FINANCIAL INSTITUTION TO MAINTAIN EXEMPTION REGISTER  

12(1)   [Exemption register]  

A financial institution shall maintain a register in which the institution enters transactions, and classes of transactions, for the purposes of section 11.

12(2)   [Manner and form]  

The register shall be maintained in the approved manner and form.

12(3)   [Register to include prescribed details]  

The register shall include the prescribed details in relation to each transaction, or class of transactions, that is entered in the register.

12(4)   [Entry not in approved manner and form]  

Where:


(a) a transaction, or class of transactions, is entered in a financial institution's exemption register;


(b) the entry contains the prescribed details in relation to the transaction or class of transactions; and


(c) the entry is not in the approved manner and form;

the fact that the entry is not in the approved manner and form shall be disregarded in determining whether or not the transaction, or any transaction falling within that class, is an exempt transaction.

12(5)   [``prescribed details'']  

In this section:

"prescribed details"
, in relation to a transaction or class of transactions, means the details of the transaction or class of transactions that are referred to in Schedule 2.

SECTION 13   AUSTRAC CEO TO HAVE ACCESS TO EXEMPTION REGISTERS  

13(1)   [Notice to give access to register]  

The AUSTRAC CEO may, by written notice to a financial institution, require the institution to give an authorised officer specified in the notice access to its exemption register on the day and during the hours specified in the notice.

13(2)   [Compliance with subsec (1) notice]  

Where the AUSTRAC CEO gives a financial institution notice under subsection (1), the institution shall comply with the notice.

13(3)   [Hours to be specified in notice]  

The hours specified in a notice under subsection (1) shall be during the normal business hours of the financial institution to which the notice is given.

13(4)   [Copies or extracts of register]  

Where an authorised officer may inspect an exemption register, the officer may also make a copy of, or take extracts from, the register.

13(5)   [Notice to give copy of register]  

The AUSTRAC CEO may, by written notice to a financial institution, require the institution to give the AUSTRAC CEO, or an authorised officer specified in the notice, a copy of:


(a) its exemption register; or


(b) entries in its exemption register falling within the class of entries specified in the notice;

together with any other information relating to the register, or to the entries, that is specified in the notice.

13(6)   [Compliance with subsec (5) notice]  

Where the AUSTRAC CEO gives a financial institution notice under subsection (5), the institution shall comply with the notice within 30 days after receiving the notice.

SECTION 14   14   DIRECTOR TO HAVE ACCESS TO CERTAIN RECORDS  
(Repealed by No 33 of 1997)

SECTION 14A   14A   INSPECTION OF RECORD SYSTEMS ETC.  
(Repealed by No 33 of 1997)

Division 1A -Reports about transfers of currency  

SECTION 15   REPORTS IN RELATION TO TRANSFER OF CURRENCY INTO OR OUT OF AUSTRALIA  

15(1)   [Transfer of currency]  

Where:


(a) a person:


(i) transfers Australian currency or foreign currency out of Australia; or

(ii) transfers Australian currency or foreign currency into Australia; and


(b) the amount of currency involved in the transfer is not less than $10,000 in value; and


(c) a report in respect of the transfer has not been given in accordance with this section;

the person, subject to subsections (2), (3) and (4), commits an offence against this subsection.

15(1A)   [Strict liability]  

Strict liability applies to paragraph (1)(c).

Note:

For strict liability , see section 6.1 of the Criminal Code.

15(1B)   [Application]  

Subsection (1) does not apply if the transfer occurred after the commencement of Division 1 of Part 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

15(2)   [Commercial passenger carrier]  

A commercial passenger carrier need not make a report in respect of currency in the possession of the carrier's passengers.

15(3)   [Commercial goods carrier]  

A commercial goods carrier need not make a report in respect of currency carried on behalf of another person unless the other person has disclosed to the carrier that the goods include currency.

15(4)   [ADIs]  

An ADI need not make a report in respect of currency transferred, on behalf of the ADI, by a commercial goods carrier.

15(5)   [Receipt of currency from outside Australia]  

Where:


(a) a person (other than an ADI) receives Australian currency or foreign currency transferred to the person from outside Australia; and


(b) the amount of currency received is not less than $10,000 in value; and


(c) a report in respect of the transfer of the currency into Australia has not been made in accordance with subsection (1) before the transfer; and


(d) a report in respect of the receipt of currency is not given in accordance with this section before the end of the period of 30 days commencing on the day of the receipt of the currency;

the person commits an offence against this subsection.

15(5A)   [Strict liability]  

Strict liability applies to paragraphs (5)(c) and (d).

Note:

For strict liability , see section 6.1 of the Criminal Code.

15(5B)   [Application ]  

Subsection (5) does not apply if the currency was transferred after the commencement of Division 1 of Part 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (5B) (see subsection 13.3(3) of the Criminal Code).

15(6)   [Penalty]  

A person who commits an offence against subsection (1) or (5) is 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.

15(7)   [Form and contents of report]  

A report under this section shall:


(a) be in the approved form;


(b) contain the reportable details in relation to the matter being reported;


(c) be signed by the person giving the report; and


(d) be given to:


(i) if the transfer is effected by a person taking the currency out of, or bringing it into, Australia with the person - a customs officer; and

(ii) in any other case - the AUSTRAC CEO or a customs officer.

15(7A)   [When report must be given]  

A report under this section, other than a report mentioned in paragraph (5)(c) or (d), must be given:


(a) if subparagraph (7)(d)(i) applies - at the time the currency concerned is brought into, or taken out of, Australia; and


(b) in any other case - at any time before the transfer takes place.

15(7AA)   [Consignment of currency]  

For the purposes of subsection (7A), if currency is taken out of Australia by a person by consignment of the currency:


(a) through the post to a place outside Australia; or


(b) to another person for carriage to a place outside Australia by that other person or by a third person;

the time when the currency is taken out of Australia is the time when it is irrevocably committed by the first-mentioned person to the Australian Postal Corporation or to the other person, as the case may be.

15(7B)   [When currency is brought into Australia]  

For the purposes of paragraph (7A)(a), the time at which currency is brought into Australia by a person is:


(a) if the person:


(i) transfers the currency into Australia when a passenger on an aircraft or ship; and

(ii) after disembarking, goes through an area set apart for customs officers to examine the passports and personal baggage of, and perform other duties in respect of, disembarking passengers and for such passengers to collect personal baggage;
as soon as the person reaches the place in that area at which customs officers examine personal baggage or, if the person does not go to that place, when the person leaves that area; or


(b) in any other case - the first opportunity after arrival in Australia that the person has to give the report under this section.

15(7C)   [When currency is taken out of Australia]  

For the purposes of paragraph (7A)(a), the time at which currency is taken out of Australia by a person is:


(a) if the person:


(i) transfers the currency out of Australia when a passenger on an aircraft or ship; and

(ii) before embarking, goes through an area set apart for customs officers to examine the passports of, and perform other duties in respect of, embarking passengers;
when the person is at the place in that area at which customs officers examine passports; or


(b) in any other case - as soon as the person reaches the customs officer who is to examine the person's passport in relation to the person leaving Australia or, if there is no such examination, the last opportunity before leaving Australia that the person has to give the report under this section.

15(8)   [Report to be forwarded to AUSTRAC CEO]  

Where a report under this section is given to a customs officer, the officer shall, as soon as practicable after receipt of the report, forward the report to the AUSTRAC CEO.

15(8A)   [Deemed transfer of currency out of Australia]  

For the purposes of this section, if a person:


(a) arranges to leave Australia as a passenger on an aircraft or ship; and


(b) for the purpose of leaving Australia, goes towards an aircraft or ship through an area described in paragraph (7C)(a); and


(c) either:


(i) takes currency into that area; or

(ii) has currency in his or her personal baggage; and


(d) does not give a report about the currency when at the place described in that paragraph;

the person is taken to have transferred the currency out of Australia.

15(8B)   [Currency spent before embarking]  

Subparagraph (8A)(c)(i) does not apply to an amount of currency if the person:


(a) informs a customs officer at the place described in paragraph (7C)(a) of an intention to spend that amount before embarking; and


(b) spends that amount before embarking.

15(9)   [Definitions]  

In this section:

"customs officer"
includes a police officer;

"reportable details"
, in relation to a matter being reported, means the details of the matter that are referred to in Schedule 3.

Division 1B - Cash transaction reports by solicitors  

SECTION 15A   REPORTS OF SIGNIFICANT CASH TRANSACTIONS  

15A(1)   [Solicitors]  

Subject to subsections (3A) and (3B), if a significant cash transaction is entered into by or on behalf of a solicitor, a solicitor corporation, or a partnership of solicitors, in the course of practising as a solicitor or solicitors, the solicitor, corporation or partnership must, before the end of the reporting period:


(a) prepare a report of the transaction; and


(b) communicate the information in the report to the AUSTRAC CEO.

15A(2)   [Form of report]  

The report must:


(a) be prepared in the approved form; and


(b) contain the reportable details of the transaction; and


(c) be signed, or otherwise authenticated in an approved way, by the solicitor, a member of the corporation or a member of the partnership, as the case may be.

15A(3)   [Report to AUSTRAC CEO]  

The communication must be made to the AUSTRAC CEO:


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


(b) in any other manner and form approved in relation to the solicitor, the solicitor corporation or the partnership or in relation to solicitors generally.

15A(3A)   [Application]  

Subsection (1) does not impose any obligations on a solicitor, a solicitor corporation, or a partnership of solicitors, in relation to a transaction if:


(a) the solicitor, corporation or partnership is a reporting entity; and


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


(c) the transaction is a designated service transaction.

15A(3B)   [Reports of threshold transactions]  

Subsection (1) does not apply in relation to a transaction if the solicitor, corporation or partnership complies with section 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in relation to the transaction.

15A(4)   [Reportable details]  

In this section:

reportable details
, in relation to a transaction, means the details of the transaction that are referred to in Schedule 3A.

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.

SECTION 17   17   PROTECTION FOR CASH DEALER ETC. WHERE INFORMATION COMMUNICATED UNDER SECTION 16  
Where a cash dealer, or a person who is an officer, employee or agent of a cash dealer, communicates or gives information under section 16, the cash dealer or person shall be taken, for the purposes of Division 400 of the Criminal Code, not to have been in possession of that information at any time.

SECTION 17A   17A   INSPECTION OF IDENTIFYING SYSTEMS ETC.  
(Repealed by No 33 of 1997)

Division 3 - Reports of international funds transfer instructions  

SECTION 17B   REPORTS OF INTERNATIONAL FUNDS TRANSFER INSTRUCTIONS  

17B(1)   [Cash dealers required to report]  

If:


(a) before 12 March 2010, a cash dealer in Australia is:


(i) the sender of an international funds transfer instruction transmitted out of Australia; or

(ii) the recipient of an international funds transfer instruction transmitted into Australia; and


(b) at least one of the following applies:


(i) the cash dealer is acting on behalf of, or at the request of, another person who is not an ADI;

(ii) the cash dealer is not an ADI;

the dealer must, before the reporting time, prepare a report of the instruction.

17B(1A)   [Reports of international funds transfer instructions]  

Subsection (1) does not apply in relation to an instruction if the cash dealer complies with section 45 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in relation to the instruction.

17B(2)   [Form and contents of report]  

The report must be in the approved form and include the prescribed details.

17B(3)   [Report to be sent to AUSTRAC CEO]  

Subject to subsection (4), the report must be sent to the AUSTRAC CEO in the approved way and form before the reporting time.

17B(4)   [Exemption by AUSTRAC CEO]  

The AUSTRAC CEO may, by notice in the Gazette, declare that subsection (3) does not apply in relation to a cash dealer in relation to a report or a class of report.

17B(5)   [Retention of report]  

If, because of the operation of subsection (4), subsection (3) does not apply in relation to a report, the cash dealer must retain the report for 7 years.

17B(6)   [Instructions transmitted by cash dealer]  

For the purposes of this section, if a cash dealer transmits an instruction on behalf of, or at the request of, another person, the cash dealer is taken to be the sender of the instruction.

17B(7)   [Instructions transmitted by non-cash dealer]  

For the purposes of this section, if a person, not being a cash dealer, transmits an instruction on behalf of, or at the request of, a cash dealer, the cash dealer is taken to be the sender of the instruction.

17B(8)   ["reporting time"]  

In this section:

"reporting time"
, in relation to an instruction, means:


(a) if the instruction is transmitted into Australia - 14 days after the day that the transmission is received or such later time as is specified in the regulations;


(b) if the instruction is transmitted out of Australia - 14 days after the day that the instruction is transmitted or such later time as is specified in the regulations.

SECTION 17C   17C   ADI ACTING ON BEHALF OF ANOTHER ADI  
For the purposes of this Division, if:


(a) an ADI (the first ADI ) is acting on behalf of, or at the request of, another ADI (the second ADI ); and


(b) the second ADI is (whether or not as a result of one or more previous applications of this section) acting on behalf of, or at the request of, a person who is not an ADI;

the first ADI is taken to be acting on behalf of that person.

SECTION 17D   17D   NO CAUSE OF ACTION ARISES FROM COMPLIANCE WITH SECTION 17B  
A cause of action does not arise in Australia in relation to action taken by a cash dealer or person:


(a) under section 17B; or


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

SECTION 17E   17E   LEGAL ACTION NOT TO BE TAKEN UNDER A FOREIGN LAW AS A RESULT OF CASH DEALERS ETC. PROVIDING INFORMATION  
An action, suit or proceeding arising under a law of, or of a part of, a foreign country does not lie in Australia against:


(a) a cash dealer; or


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

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


(c) under section 17B; or


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

SECTION 17F   CERTAIN FOREIGN JUDGMENTS NOT TO BE RECOGNISED OR ENFORCED IN AUSTRALIA  

17F(1)   [Foreign judgments re reporting requirements]  

If:


(a) a foreign court has given a judgment against a person; and


(b) the judgment was in connection with action taken by the person under section 17B;

the judgment must not be recognised or enforced in Australia.

17F(2)   [Definitions]  

In this section:

"foreign court"
means any court or authority of a foreign country or a part of a foreign country;

"judgment"
includes a decree, an order and an injunction.

SECTION 17G   17G   INSPECTION OF RECORD SYSTEMS ETC.  
(Repealed by No 33 of 1997)

Division 4 - Information provided under other law  

SECTION 17H   17H   INFORMATION PROVIDED UNDER ANOTHER LAW OF THE COMMONWEALTH OR A LAW OF A STATE OR TERRITORY  
For the purposes of this Act, information received by AUSTRAC under another Act or under a law of a State or a Territory is taken to be obtained under this Part.

SECTION 17J   17J   INFORMATION PROVIDED TO AUSTRAC FROM A FOREIGN COUNTRY  
For the purposes of this Act, information concerning a specific financial transaction that is received by AUSTRAC as a result of a request to a foreign country or to an agency of a foreign country is taken to have been obtained under this Act.

PART III - ACCOUNTS  

SECTION 18   18   OPENING ETC. OF ACCOUNT WITH A CASH DEALER  
(Repealed by No 12 of 2015)

SECTION 19   19   UNBLOCKING OR FORFEITURE OF ACCOUNT  
(Repealed by No 12 of 2015)

SECTION 20   CASH DEALERS TO HOLD INFORMATION  

20(1)  


A cash dealer must maintain, in relation to each account, in a way that can be audited:


(a) any account information obtained by the cash dealer for the purposes of compliance with this Part; and


(b) any signatory information obtained by the cash dealer for the purposes of compliance with this Part in relation to each signatory to the account.

20(2)  
Subsection (1) does not apply to information obtained by the cash dealer before the commencement of Part 2 of the Crimes Legislation Amendment Act 1992.

SECTION 20A   IDENTIFICATION RECORD  

20A(1)   [What comprises identification record]  

For the purposes of this Act, a cash dealer has an identification record for a signatory to an account if, and only if:


(a) the cash dealer has an identification reference for the signatory (whether or not the reference was obtained in connection with that account); or


(b) the cash dealer is an identifying cash dealer and:


(i) the cash dealer has carried out, and has a record of, the prescribed verification procedure to identify the signatory; or

(ii) the cash dealer has carried out, and has a record of, a verification procedure to identify the signatory, being a procedure approved by the AUSTRAC CEO for the cash dealer;
(whether or not the verification procedure was carried out in connection with that account).
Example:

A solicitor administered the estate of a deceased person who held an account with an identifying cash dealer. The cash dealer carried out the prescribed verification procedure to identify the solicitor when the solicitor closed the deceased person's account.

The solicitor is now administering the estate of another deceased person who also held an account with the cash dealer. If the cash dealer has a record of the verification procedure used to identify the solicitor in relation to the first deceased person's account, it also has an identification record for the solicitor in relation to the other deceased person's account.

20A(2)   [Prescribed verification procedure]  

A verification procedure that was prescribed for the purposes of subsection 20(8) before the commencement of this section is taken to have been prescribed for the purposes of subparagraph (1)(b)(i).

SECTION 21   IDENTIFICATION REFERENCES  

21(1)   [Written reference]  

An identification reference for a signatory to an account is a written reference by an acceptable referee, signed by the referee and setting out the name to be used by the signatory in relation to the account and stating that:


(a) the referee has known the signatory for the period specified in the reference;


(b) during the whole of that period, or for so much of that period as is specified in the reference, the signatory has been commonly known by that name; and


(c) the referee has examined:


(i) a specified primary identification document for the signatory in that name;

(ii) a specified secondary identification document for the signatory in that name and a specified primary identification document for the signatory in a former name of the person; or

(iii) only a specified secondary identification document for the signatory in that name.

21(2)   [Other details to be set out in identification reference]  

An identification reference for a person by an acceptable referee shall also set out:


(a) the name, address and occupation of the referee and the basis on which the referee claims to be an acceptable referee;


(b) if the reference states that the referee examined a primary identification document for the person in a name different from the name to be used by the person in relation to the account - the explanation that the person gave the referee for the difference in names;


(c) if the reference states that the referee examined only a secondary identification document for the person - the explanation that the person gave the referee for the failure to produce a primary identification document; and


(d) the required details of the identification document or documents examined by the referee.

21(3)   [Signature by person]  

An identification reference for a person by an acceptable referee shall be signed by the person in the presence of the referee and shall contain a statement by the referee to the effect that the reference was so signed.

21(3A)   [Offence re false or misleading statement]  

An acceptable referee, or any other person, must not:


(a) intentionally make a statement in an identification reference, reckless as to the fact that the statement is false or misleading in a material particular; or


(b) intentionally omit from an identification reference any matter or thing, reckless as to the fact that without the matter or thing the reference is misleading in a material particular.

Penalty: Imprisonment for 4 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.

21(4)   [Failure to produce primary identification document]  

For the purposes of this Act, a failure by a person to produce a primary identification document shall not be taken to be sufficiently explained merely by the assertion that a primary identification document is not presently available to the person if the person could obtain a primary identification document within a reasonable time if the person took reasonable steps to obtain it.

21(5)   [Citizenship or passport application not required]  

Nothing in subsection (4) shall be taken to require a person to apply for the issue of a citizenship certificate or a passport.

SECTION 21A   CHANGE OF NAME  

21A(1)  


Subject to subsections (1A) and (1B), this section applies to an individual ( "signatory" ) who wishes to open, or become a signatory to, an account with an identifying cash dealer in a name by which the signatory intends to be commonly known ( "new name" ), being a name:


(a) which the signatory has adopted by marriage; or


(b) if the signatory has changed the surname by which the signatory is known to that of the signatory's spouse or de facto spouse - by which the signatory was known before making that change; or


(c) which the signatory, being a person who has been the victim of violence or threats of violence, or the dependent child of such a person, has adopted or intends to adopt to ensure his or her personal safety; or


(d) if the signatory is an Aborigine or Torres Strait Islander - which is a traditional name of the signatory.

21A(1A)  


This section does not apply to an individual who wishes to open an account if the account is opened after the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in circumstances that amount to the provision of a designated service.

21A(1B)  


This section does not apply to an individual who wishes to become a signatory to an account with an identifying cash dealer in a name by which the individual intends to be commonly known if:


(a) the individual wishes to become a signatory to the account in that name after the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006; and


(b) either:


(i) the account is opened after the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in circumstances that amount to the provision of a designated service; or

(ii) the account was opened before the commencement of that Division in circumstances that would have amounted to the provision of a designated service if all the provisions of Parts 1 and 2 of that Act had been in force at the relevant time.

21A(2)  
If the signatory gives to the identifying cash dealer change of name statements signed by the signatory and by a prescribed person:


(a) the new name is taken to be a name by which the signatory is commonly known; and


(b) the statements are taken to constitute an identification reference for the signatory in the new name.

21A(3)  
A person must not:


(a) intentionally make a statement in a change of name statement,reckless as to the fact that it is false or misleading in a material particular; or


(b) intentionally omit from a change of name statement any matter or thing, reckless as to the fact that without the matter or thing the change of name statement is misleading in a material particular.

Penalty: Imprisonment for 4 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.

21A(4)  
For the purposes of this section:

"change of name statement"
, in relation to a signatory, means a statement that:


(a) sets out the name or names by which the signatory has been commonly known; and


(b) states which paragraph of subsection (1) applies to the signatory; and


(c) sets out the reasons why this section applies to the signatory; and


(d) sets out the new name; and


(e) states that the new name is one by which the signatory will be commonly known.

SECTION 22   NOTICE TO AUSTRAC CEO IF NO PRIMARY IDENTIFICATION DOCUMENT EXAMINED  

22(1)  


If an identification reference for a signatory to an account is given to a cash dealer for the purposes of compliance with this Part and the reference states that the referee examined only a secondary identification document for the signatory, the cash dealer must give the AUSTRAC CEO written notice:


(a) (Omitted by No 164 of 1992)


(b) (Omitted by No 164 of 1992)


(c) setting out sufficient details of the account for the account to be identified;


(d) setting out the name used by the signatory in relation to the account; and


(e) stating that the identification reference for the signatory was not supported by a primary identification document.

22(2)  


A cash dealer who contravenes subsection (1) commits an offence against this subsection punishable, upon conviction, by imprisonment for a period of 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.

SECTION 23   CASH DEALER TO KEEP DOCUMENTS  

23(1)   [Retention of record for 7 years]  

If a cash dealer makes or obtains a record of any information in the course of obtaining account information or signatory information for the purpose of compliance with this Part, the cash dealer must retain the record or a copy of it for 7 years after the day on which the relevant account is closed.

23(1A)  
(Omitted by No 164 of 1992)

23(2)  
(Omitted by No 164 of 1992)

23(3)  


(Repealed by No 33 of 1997)

23(4)   [Information for more than one account]  

If any information is part of the account information or signatory information of more than one account with the cash dealer, subsection (1) applies as if the reference to the day on which the account is closed were a reference to the day on which the last of those accounts is closed.

23(4A)  
(Omitted by No 164 of 1992)

23(5)   [Requirement for storing and retrieval of documents]  

A cash dealer required to retain documents under subsection (1) shall retain and store them in a way that makes retrieval of the documents reasonably practical.

23(6)   [Other obligations of cash dealer]  

Subsection (1) does not limit any other obligation of a cash dealer to retain documents.

23(7)   [Where cash dealer required to release document]  

Where a cash dealer is required by law to release a document to which subsection (1) applies before the end of the period referred to in that subsection, the cash dealer shall retain a complete copy of the document until the period has ended or the document is returned, whichever occurs first.

23(8)   [Register of documents]  

The cash dealer shall maintain a register of documents released under subsection (7).

Penalty: Imprisonment for 1 year.

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.

23(9)  


(Repealed by No 33 of 1997)

SECTION 23A   ACTIVE ADI ACCOUNTS TRANSFERRED TO ANOTHER ADI - OBLIGATIONS OF ADIs IN RELATION TO RECORDS OF INFORMATION  

23A(1)   When section applies.  

This section applies to a record of information if:


(a) the record is in the possession of an ADI (the transferor ADI ) in fulfilment of an obligation imposed on the transferor ADI by subsection 23(1) or (7); and


(b) the record relates wholly or partly to an account (the transferred account ) that has been, or is proposed to be, transferred to another ADI (the transferee ADI ) under:


(i) a law of the Commonwealth or of a State or Territory; or

(ii) an arrangement between the transferor ADI and the transferee ADI.

23A(2)   Transferor ADI to give records to transferee ADI.  

The transferor ADI must comply with whichever of the following rules is applicable:


(a) if the record relates wholly to the transferred account - the transferor ADI must give the record to the transferee ADI within the 120-day period beginning 30 days before the transfer;


(b) if the record relates partly to the transferred account and partly to an account that is not so transferred or proposed to be so transferred - the transferor ADI must:


(i) make a copy of so much of the record as relates to the transferred account; and

(ii) give the copy to the transferee ADI;
within the 120-day period beginning 30 days before the transfer.

23A(3)   Offence.  

A person who intentionally contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.

Note:

The amount of a penalty unit is stated in section 4AA of the Crimes Act 1914. 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.

23A(4)   Transferor ADI released from obligations under section 23.  

If the transferor ADI complies with subsection (2) of this section in relation to the record, the transferor ADI does not contravene section 23 in relation to so much of the record as relates to the transferred account.

23A(5)   Obligations of transferee ADI - section 23.  

If the transferee ADI is given a document under subsection (2) of this section, section 23 applies to the transferee ADI in relation to the document as if the document were a record made or obtained by the transferee ADI in the course of obtaining account information or signatory information about the transferred account.

23A(6)   Certain records to be treated as identification records in the hands of the transferee ADI.  

If the transferee ADI is given a document under subsection (2) of this section, section 20A applies to the transferee ADI in relation to the document as follows:


(a) if the document (or its original) was covered by paragraph 20A(1)(a) - as if the document were an identification reference for the signatory to the transferred account;


(b) if the document (or its original) was covered by subparagraph 20A(1)(b)(i) - as if:


(i) the transferee ADI had carried out the prescribed verification procedure (within the meaning of that subparagraph) to identify the signatory to the transferred account; and

(ii) the document were a record of that procedure;


(c) if the document (or its original) was covered by subparagraph 20A(1)(b)(ii) - as if:


(i) the transferee ADI had carried out a verification procedure to identify the signatory to the transferred account; and

(ii) the procedure had been approved by the AUSTRAC CEO for the transferee ADI; and

(iii) the document were a record of that procedure.

23A(7)   Definition.  

In this section:

"record"
includes a copy of a record.

SECTION 23B   CLOSED ADI ACCOUNTS TRANSFERRED TO ANOTHER ADI - OBLIGATIONS OF ADIs IN RELATION TO RECORDS OF INFORMATION  

23B(1)   When section applies.  

This section applies to a record of information if:


(a) the record is in the possession of an ADI (the transferor ADI ) in fulfilment of an obligation imposed on the transferor ADI by subsection 23(1) or (7); and


(b) the record relates wholly or partly to a closed account; and


(c) the transferor ADI complies with an obligation imposed on it under subsection 23A(2) in relation to another ADI (the transferee ADI ) during the 120-day period mentioned in that subsection; and


(d) the transferor ADI and the transferee ADI agree in writing that so much of the record as relates to the closed account should be transferred by the transferor ADI to the transferee ADI during that 120-day period.

23B(2)   Transferor ADI may give records to transferee ADI.  

The transferor ADI may:


(a) if the record relates wholly to the closed account - give the record to the transferee ADI within that 120-day period; or


(b) if the record relates partly to the closed account and partly to some other account (whether active or otherwise):


(i) make a copy of so much of the record as relates to the closed account; and

(ii) give the copy to the transferee ADI;
within that 120-day period.

23B(3)   Transferor ADI released from obligations under section 23.  

If the transferor ADI gives a document to the transferee ADI under subsection (2) of this section, the transferor ADI does not contravene section 23 in relation to so much of the document as relates to the closed account.

23B(4)   Obligations of transferee ADI - section 23.  

If the transferee ADI is given a document under subsection (2) of this section, section 23 applies to the transferee ADI in relation to the document as if the document were a record made or obtained by the transferee ADI in the course of obtaining account information or signatory information about the closed account.

23B(5)   Certain records to be treated as identification records in the hands of the transferee ADI.  

If the transferee ADI is given a document under subsection (2) of this section, section 20A applies to the transferee ADI in relation to the document as follows:


(a) if the document (or its original) was covered by paragraph 20A(1)(a) - as if the document were an identification reference for the signatory to the closed account;


(b) if the document (or its original) was covered by subparagraph 20A(1)(b)(i) - as if:


(i) the transferee ADI had carried out the prescribed verification procedure (within the meaning of that subparagraph) to identify the signatory to the closed account; and

(ii) the document were a record of that procedure;


(c) if the document (or its original) was covered by subparagraph 20A(1)(b)(ii) - as if:


(i) the transferee ADI had carried out a verification procedure to identify the signatory to the closed account; and

(ii) the procedure had been approved by the AUSTRAC CEO for the transferee ADI; and

(iii) the document were a record of that procedure.

23B(6)   Definition.  

In this section:

"record"
includes a copy of a record.

SECTION 24   OPENING ACCOUNT ETC. IN FALSE NAME  

24(1)  
A person shall not open an account with a cash dealer in a false name.

24(2)  
A person shall not operate an account with a cash dealer in a false name.

24(2A)  


A person must not operate, or authorise the operation of, an account with a cash dealer if the account is in a false name.

24(3)  
Where a person is commonly known by 2 or more different names, the person shall not use one of those names in opening an account with a cash dealer unless the person has previously disclosed the other name or names to the cash dealer.

24(4)  
Where a person is commonly known by 2 or more different names, the person shall not use one of those names in operating an account with a cash dealer unless the person has previously disclosed the other name or names to the cash dealer.

24(5)  


Where a person using a particular name in dealings with a cash dealer discloses to the dealer a different name or different names by which the person is commonly known, the dealer shall make a record of the disclosure and shall, upon request in writing from the AUSTRAC CEO, give the AUSTRAC CEO a copy of that record.

24(6)  


A person who contravenes subsection (1), (2), (2A), (3), (4) or (5) commits an offence against this subsection 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.

24(7)  


For the purposes of this section:


(a) a person opens an account in a false name if the person, in opening the account, or becoming a signatory to the account, uses a name other than a name by which the person is commonly known; and


(b) a person operates an account in a false name if the person does any act or thing in relation to the account (whether by way of making a deposit or withdrawal or by way of communication with the cash dealer concerned or otherwise) and, in doing so, uses a name other than a name by which the person is commonly known; and


(c) an account is in a false name if it was opened in a false name, whether before or after the commencement of this paragraph.

24(8)  


This section does not apply in relation to a person and an account that is an RSA within the meaning of the Retirement Savings Accounts Act 1997 if:


(a) the person (the employer ) is an employer, within the meaning of that Act, of another person (the employee ); and


(b) the employer made the application for the account on behalf of the employee.

24(9)  


This section does not apply in relation to the opening of an account if the account is opened after the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 in circumstances that amount to the provision of a designated service.

24(10)  


This section does not apply in relation to the operation of an account after the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 if:


(a) the account was opened in circumstances that amount to the provision of a designated service; or


(b) allowing a transaction in relation to the account would amount to the provision of a designated service.

PART IIIA - BULLION SELLERS  

SECTION 24A   24A   DEFINITIONS  


bullion transaction
means a transaction (other than an exempt transaction) in relation to bullion.

exempt transaction
, in relation to bullion, means a transaction in relation to bullion in respect of which an exemption is in force under section 24B.

SECTION 24B   24B   EXEMPTIONS  


The AUSTRAC CEO may, by signed writing, exempt from the application of this Part all transactions, or a particular class of transactions, in relation to bullion that may be entered into by a particular bullion seller.

SECTION 24C   BULLION SELLER TO HOLD IDENTIFICATION RECORD FOR OTHER PARTIES TO BULLION TRANSACTION  

24C(1)   [Identification record]  

A bullion seller must not, before the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, enter into a bullion transaction unless the seller has an identification record for the other party, or for each other party, to the transaction.

Penalty: Imprisonment for 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.

24C(2)   [Verification procedures]  

For the purposes of subsection (1), a bullion seller has an identification record for a party to a bullion transaction if, and only if, the seller is an identifying cash dealer and:


(a) has carried out, and has a record of, the prescribed verification procedure to identify the party; or


(b) has carried out, and has a record of, a verification procedure to identify the party, being a procedure approved by the AUSTRAC CEO for the seller;

whether or not the procedure was carried out in connection with the transaction.

SECTION 24D   BULLION SELLER TO KEEP DOCUMENTS  

24D(1)   [Retention of record]  

If a bullion seller makes or obtains a record of any information in the course of obtaining information identifying a party to a bullion transaction that occurred before the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the seller must retain the record or a copy of it for seven years after the day on which the transaction occurs.

24D(2)   [Transaction date]  

If any information is part of information identifying a party to 2 or more bullion transactions entered into by the bullion seller, subsection (1) applies as if the reference to the day on which the transaction occurs were a reference to the day on which the last of those transactions occurs.

24D(3)   [Retrieval of documents]  

A bullion seller who is required to retain documents under subsection (1) must retain and store them in a way that makes retrieval of the documents reasonably practicable.

24D(4)   [Obligations]  

Subsection (1) does not limit any other obligation of a bullion seller to retain documents.

24D(5)   [Release of document]  

If a bullion seller is required by law to release a document to which subsection (1) applies before the end of the period referred to in that subsection, the seller must retain a complete copy of the document until the period has ended or the document is returned, whichever occurs first.

24D(6)   [Register]  

The bullion seller must keep a register of documents released under subsection (5).

Penalty: Imprisonment for 1 year.

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.

PART IV - SECRECY AND ACCESS  

SECTION 25   25   SECRECY  
(Repealed by No 170 of 2006)

SECTION 26   26   SPECIAL PROVISIONS IN RELATION TO REPORTS OF SUSPECT TRANSACTIONS  
(Repealed by No 170 of 2006)

SECTION 27   27   ACCESS TO FTR INFORMATION  
(Repealed by No 170 of 2006)

SECTION 27AA   27AA   ACCESS BY ASIO TO FTR INFORMATION  
(Repealed by No 170 of 2006)

PART IVA - POWERS OF INSPECTION  

SECTION 27A   27A   AUTHORISED OFFICERS  


The AUSTRAC CEO may, by signed writing, appoint a member of the staff of AUSTRAC to be an authorised officer for the purposes of this Act.

SECTION 27B   IDENTITY CARDS  

27B(1)  


The AUSTRAC CEO must cause each authorised officer to be issued with an identity card in a form approved by the AUSTRAC CEO and bearing a recent photograph of the officer.

27B(2)  


A person who ceases to be an authorised officer must, as soon as practicable, return his or her identity card to the AUSTRAC CEO.

27B(3)  
A person must not fail to comply with subsection (2).

27B(4)  


A person who contravenes subsection (2) or (3) commits an offence against this subsection punishable, upon conviction, by a fine of not more than 1 penalty unit.

27B(4A)  
Subsections (3) and (4) do not apply if the person has a reasonable excuse.

Note:

A defendant bears an evidential burden in relationto the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

27B(4B)  
Subsection (4) is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

27B(5)  
An authorised officer is not entitled to exercise any powers under this Part in relation to premises if:


(a) the occupier of the premises has required the officer to produce his or her identity card for inspection by the occupier; and


(b) the officer fails to comply with the requirement.

SECTION 27C   POWERS OF INSPECTION OF PREMISES OF A CASH DEALER  

27C(1)   [Access]  

This section applies if an authorised officer is given access to business premises of a cash dealer in compliance with a notice under section 27E.

27C(2)   [Compliance]  

For the purpose of monitoring a cash dealer's compliance with sections 7, 16 and 17B, the officer may inspect:


(a) any records kept at, or accessible from, the premises that relate to the dealer's obligations under those sections; and


(b) any system used by the dealer at the premises for keeping those records; and


(c) any reports retained at, or accessible from, the premises under those sections; and


(d) any system used by the dealer in connection with:


(i) preparing reports under those sections; or

(ii) sending such reports to the AUSTRAC CEO; or

(iii) retaining such reports.

27C(2A)   [Monitoring compliance]  

For the purpose of monitoring the compliance of a cash dealer who is an approved cash carrier with the record-keeping obligations referred to in section 8, the officer may inspect:


(a) records containing reportable details (within the meaning of that section) of significant cash transactions to which the cash dealer is a party that are kept at, or accessible from, the premises; and


(b) any system used by the dealer at those premises for keeping such records.

27C(3)   [Inspection of records]  

For the purpose of monitoring a cash dealer's compliance with section 20 and any undertaking given under section 8A, the officer may inspect:


(a) records of account information and signatory information kept at, or accessible from, the premises; and


(b) any system used by the dealer at those premises for keeping such records.

27C(4)   [Bullion seller's records]  

For the purpose of monitoring compliance, by a cash dealer who is a bullion seller, with sections 24C and 24D, the officer may inspect:


(a) records of information compiled or obtained in the course of obtaining an identification record for a party to a bullion transaction, being records kept at, or accessible from, the premises; and


(b) any system used by the bullion seller at the premises for keeping such records.

27C(5)   [Copies/extracts]  

An authorised officer who is empowered under this section to inspect records or reports of a cash dealer may also receive or make copies of, or take extracts from, those records or reports.

SECTION 27D   POWERS OF INSPECTION OF PREMISES OF A SOLICITOR  

27D(1)   [Access]  

This section applies if an authorised officer is given access to business premises of a solicitor, a solicitor corporation or a partnership of solicitors in compliance with a notice under section 27E.

27D(2)   [Compliance]  

For the purpose of monitoring compliance by the solicitor, corporation or partnership with section 15A, the officer may inspect:


(a) any records kept at, or accessible from, the premises that relate to the obligations of the solicitor, corporation or partnership under that section; and


(b) any system used by the solicitor, corporation or partnership at the premises for keeping those records; and


(c) any reports retained at, or accessible from, the premises under that section; and


(d) any system used by the solicitor, corporation or partnership in connection with:


(i) preparing reports under that section; or

(ii) sending such reports to the AUSTRAC CEO; or

(iii) retaining such reports.

27D(3)   [Copies/extracts]  

An authorised officer who is empowered under this section to inspect records or reports of a solicitor, a solicitor corporation or a partnership of solicitors may also receive or make copies of, or take extracts from, those records or reports.

SECTION 27E   NOTICE TO GIVE ACCESS TO BUSINESS PREMISES  

27E(1)   [Written notice]  

The AUSTRAC CEO may, by written notice to a cash dealer, a solicitor, a solicitor corporation or a partnership of solicitors, require the dealer, solicitor, corporation or partnership to give the authorised officer named in the notice access on the day and during the hours stated in the notice to the business premises described in the notice of the dealer, solicitor, corporation or partnership.

27E(2)   [Hours]  

The hours stated in the notice must occur during business hours in the place where the business premises are situated.

27E(3)   [Compliance]  

A cash dealer, a solicitor, a solicitor corporation or a partnership of solicitors to whom or to which a notice is given under subsection (1) must comply with the notice.

27E(4)   [Accompanied by consultant]  

If an authorised officer is given access to business premises in compliance with a notice under this section, the officer is entitled to be accompanied by a person engaged under section 40A for the purpose of receiving advice from the person in connection with the exercise of the officer's powers under this Part.

PART V - ENFORCEMENT  

SECTION 28   FAILURE TO PROVIDE INFORMATION  

28(1)   [Offence by cash dealer]  

A cash dealer commits an offence against this section if the cash dealer refuses or fails:


(a) to communicate information to the AUSTRAC CEO when and as required under Part II or III; or


(b) to comply with a notice as required by subsection 27E(3).


(c) to retain reports as required under subsection 17B(5).

28(2)   [Offence by financial institution]  

A financial institution commits an offence against this section if the institution:


(a) fails to maintain an exemption register as required under Division 1 of Part II; or


(b) refuses or fails to comply with a notice under subsection 13(1) or (5).

28(3)   [Failure to communicate information]  

If a solicitor, a solicitor corporation or a partnership of solicitors refuses or fails:


(a) to communicate information to the AUSTRAC CEO when required under section 15A; or


(b) to comply with a notice as required by subsection 27E(3);

the solicitor or corporation, or each member of the partnership, as the case may be, commits an offence against this section.

28(4)   [Penalty]  

A person who commits an offence against this section is 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.

SECTION 29   FALSE OR MISLEADING INFORMATION  

29(1)  


A cash dealer shall not, in communicating information to the AUSTRAC CEO as required under Part II or III:


(a) intentionally make a statement that the cash dealer knows is false or misleading in a material particular; or


(b) intentionally omit from a statement any matter or thing without which the cash dealer knows the statement is misleading in a material particular.

29(2)  
A financial institution shall not, in maintaining the institution's exemption register as required under Division 1 of Part II:


(a) intentionally make a statement that the financial institution knows is false or misleading in a material particular; or


(b) intentionally omit from a statement any matter or thing without which the financial institution knows the statement is misleading in a material particular.

29(2A)  


A person must not, in communicating information to the AUSTRAC CEO as required under section 15A:


(a) intentionally make a statement that the person knows is false or misleading in a material particular; or


(b) intentionally omit from a statement anything without which the person knows the statement is misleading in a material particular.

29(3)  
A person must not:


(a) intentionally make a report for the purposes of section 15, or a declaration for the purposes of section 33, that the person knows is false or misleading in a material particular; or


(b) intentionally omit from such a report or declaration any matter or thing without which the person knows the report or declaration is misleading in a material particular.

29(4)  
A person shall not make a statement, either orally or in writing, or present a document that is, to the person's knowledge, false or misleading in a material particular and is capable of:


(aa) misleading an identifying cash dealer in the carrying out of a verification procedure under paragraph 20A(1)(b); or


(ab) misleading a bullion seller in the carrying out of a verification procedure under paragraph 24C(2)(a) or (b); or


(a) being used for the purposes of inducing a financial institution to enter a transaction or a class of transactions in the institution's exemption register; or


(b) causing a cash dealer to make a report of a cash transaction, or of an international funds transfer instruction, that is false or misleading in a material particular; or


(c) causing a carrier not to make a report under section 15.

29(5)  


A person who contravenes subsection (1), (2), (2A), (3) or (4) commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 5 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.

SECTION 30   INCOMPLETE INFORMATION  

30(1)   [Incomplete information by cash dealer]  

A cash dealer commits an offence against this section if the dealer, in communicating information to the AUSTRAC CEO in relation to a transaction as required under Part II, knows that the information is incomplete in relation to the transaction.

30(2)   [Incomplete information by financial institution]  

A financial institution commits an offence against this section if the institution, in maintaining the institution's exemption register as required under Division 1 of Part II, knows that the register is incomplete.

30(3)   [Offence]  

A person commits an offence against this section if the person, in communicating information to the AUSTRAC CEO in relation to a transaction as required under section 15A, knows that the information is incomplete in relation to the transaction.

30(4)   [Penalty]  

A person who commits an offence against this section is punishable, upon conviction, by a fine of not more than 10 penalty units.

Note:

If a body corporate is convicted of an offence, subsection 4B(3) of the Crimes Act 1914 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. The amount of a penalty unit is stated in section 4AA of that Act.

SECTION 31   OFFENCE TO CONDUCT TRANSACTIONS SO AS TO AVOID REPORTING REQUIREMENTS  

31(1)   [Offence re conduct of cash transactions]  

A person commits an offence against this section if:


(a) the person is a party to 2 or more non-reportable cash transactions; and


(b) having regard to:


(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:

(A) the value of the currency involved in each transaction;

(B) the aggregated value of the transactions;

(C) the period of time over which the transactions took place;

(D) the interval of time between any of the transactions;

(E) the locations at which the transactions took place; and

(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;
it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:

(iii) would not give rise to a significant cash transaction; or

(iv) would give rise to exempt cash transactions.

31(2)   [Offence re conduct of currency transfers]  

A person commits an offence against this section if:


(a) the person conducts 2 or more non-reportable transfers of currency; and


(b) having regard to:


(i) the manner and form in which the transfers were conducted, including, without limiting the generality of this, all or any of the following:

(A) the value of the currency involved in each transfer;

(B) the aggregated value of the currency involved in the transfers;

(C) the period of time over which the transfers occurred;

(D) the interval of time between any of the transfers;

(E) the locations at which the transfers were initiated or conducted; and

(ii) any explanation made by the person as to the manner or form in which the transfers were conducted;
it would be reasonable to conclude that the person conducted the transfers in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that no report in relation to the currency involved in the transfers would be made under section 15.

31(3)   [Penalty]  

A person who commits an offence against this section is punishable, upon conviction, by imprisonment for not more than 5 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.

SECTION 32   INJUNCTION  

32(1)   [Power of prescribed court]  

Where, on the application of the AUSTRAC CEO, a prescribed court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:


(a) a contravention of Part II or III or this Part;


(b) attempting to contravene such a provision;


(c) aiding, abetting, counselling or procuring a person to contravene such a provision;


(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;


(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or


(f) conspiring with others to contravene such a provision;

the court may grant an injunction in such terms as the court determines to be appropriate.

32(2)   [Interim injunction]  

Where, in the opinion of a prescribed court, it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1).

32(3)   [Rescission or variation of injunction]  

The court may rescind or vary an injunction granted under subsection (1) or (2).

32(4)   [Prohibitory injunction]  

The power of a prescribed court to grant an injunction restraining a person from engaging in conduct may be exercised:


(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and


(b) whether or not the person has previously engaged in conduct of that kind.

32(5)   [Mandatory injunction]  

The power of a prescribed court to grant an injunction requiring a person to do an act or thing may be exercised:


(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and


(b) whether or not the person has previously refused or failed to do that act or thing.

32(6)   ["prescribed court"]  

In this section:

"prescribed court"
means the High Court of Australia or the Federal Court of Australia.

SECTION 33   QUESTIONING AND SEARCH POWERS  

33(1)   [Person about to leave Australia]  

Any person who is about to leave Australia before the commencement of Division 1 of Part 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 shall, if requested to do so by an officer:


(a) declare whether or not the person has with him or her any Australian currency or foreign currency;


(b) declare the amount of any Australian currency or foreign currency that the person has with him or her;


(c) declare whether or not, to the best of the person's knowledge and belief, a report under section 15 has been given in respect of any Australian currency or foreign currency that the person has with him or her; and


(d) produce to the officer any Australian currency or foreign currency that the person has with him or her.

33(2)   [Person arriving in Australia]  

Any person who arrives in Australia before the commencement of Division 1 of Part 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 shall, if requested to do so by an officer:


(a) declare whether or not the person has with him or her any Australian currency or foreign currency;


(b) declare the amount of any Australian currency or foreign currency that the person has with him or her;


(c) declare whether or not, to the best of the person's knowledge and belief, a report under section 15 has been given in respect of any Australian currency or foreign currency that the person has with him or her; and


(d) produce to the officer any Australian or foreign currency that the person has with him or her.

33(3)   [Power to examine article]  

An officer may, with such assistance as is reasonable and necessary, examine an article which a person has with him or her if the person:


(a) is about to leave Australia or has arrived in Australia; or


(b) is about to board or leave, or has boarded or left, any ship or aircraft;

for the purpose of finding out whether the person has with him or her any currency in respect of which a report under section 15 is required.

33(3A)   [Power to search person]  

A police officer or a customs officer (being an officer in respect of whom a declaration under section 219ZA of the Customs Act 1901 is in force) may, with such assistance as is reasonable and necessary, search a person if:


(a) the person is about to leave Australia, or has arrived in Australia, or the person is about to board or leave, or has boarded or left, any ship or aircraft; and


(b) the officer has reasonable grounds to suspect that there is on the person, or in clothing being worn by the person, currency in respect of which a report under section 15 is required;

for the purpose of finding out whether the person has with him or her any such currency.

33(4)   [Power to seize currency]  

Where an officer has reasonable grounds to believe that currency found in the course of an examination or search under subsection (3) or (3A) may afford evidence as to the commission of an offence against section 15, the officer may seize the currency.

33(5)   [Search to be by person of same sex]  

A person shall not be searched under subsection (3A) except by a person of the same sex.

33(6)   [Power to board ship or aircraft]  

An officer, and any person assisting an officer, may board any ship or aircraft for the purpose of exercising the powers conferred by subsection (1), (2), (3), (3A) or (4).

33(7)   [Search for currency in ship or aircraft]  

An officer may, with such assistance as is reasonable and necessary, board any ship or aircraft and examine or search the ship or aircraft and any goods found on the ship or aircraft for the purpose of ascertaining whether there is on board the ship or aircraft any currency in respect of which a report under section 15 is required.

33(7A)   [Power to enter and examine prescribed place]  

An officer may, with such assistance as is reasonable and necessary, go onto or enter any prescribed place and examine the place, and any goods found at or in it, for the purpose of finding out whether there is at or in the place, or the goods, any currency in respect of which a report under section 15 is required.

33(8)   [Seizure of currency found]  

Where an officer has reasonable grounds to believe that currency found in the course of an examination or search under subsection (7) or (7A) may afford evidence as to the commission of an offence against section 15, the officer may seize the currency.

33(9)   [Offence]  

A person who contravenes subsection (1) or (2) commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 1 year.

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.

33(10)   [Definitions]  

In this section:

offence against section 15
includes an offence against section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against section 15 of this Act.

"officer"
means:


(a) a police officer; or


(b) a customs officer;

"prescribed place"
means:


(a) a place for the examination of goods on landing, being a place appointed under section 17 of the Customs Act 1901; or


(b) a warehouse in respect of which a warehouse licence, within the meaning of Part V of that Act, is in force; or


(c) a port, airport, wharf or boarding station appointed under section 15 of that Act.

SECTION 33A   ARREST WITHOUT WARRANT  

33A(1)  
Where an officer has reasonable grounds to believe that a person has committed an offence against section 15, the officer may arrest the person without warrant.

33A(2)  
Where an officer has reasonable grounds to believe that a person has assaulted any officer in the execution of that officer's duties, the first-mentioned officer may arrest the person without warrant.

33A(3)  
A person must not resist, obstruct or prevent the arrest of any person under this section.

Penalty: 10 penalty units.

Note:

The amount of a penalty unit is stated in section 4AA of the Crimes Act 1914.

33A(4)  


Where a person is arrested under this section, section 212 of the Customs Act 1901 applies as though the person had been arrested under section 210 of that Act.

33A(5)  
In this section:

"offence against section 15"
and "officer" have the same respective meanings as in section 33.

SECTION 34   CONDUCT BY DIRECTORS, EMPLOYEES OR AGENTS  

34(1)  


Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.

34(2)  


Any conduct engaged in on behalf of a body corporate:


(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or


(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

34(3)  


Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.

34(4)  


Conduct engaged in on behalf of a person other than a body corporate:


(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or


(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged in by the first-mentioned person unless the first-mentioned person establishes that that person took reasonable precautions and exercised due diligence to avoid the conduct.

34(5)  
A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the reasons for the intention, opinion, belief or purpose.

34(6)  
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

PART VI - ADMINISTRATION  

SECTION 35   35   ESTABLISHMENT OF AUSTRAC  
(Repealed by No 170 of 2006)

SECTION 36   36   DIRECTOR  
(Repealed by No 170 of 2006)

SECTION 36A   36A   REMUNERATION OF DIRECTOR  
(Repealed by No 170 of 2006)

SECTION 36B   36B   LEAVE OF ABSENCE OF DIRECTOR  
(Repealed by No 170 of 2006)

SECTION 37   37   ACTING DIRECTOR  
(Repealed by No 170 of 2006)

SECTION 38   FUNCTIONS OF AUSTRAC CEO  

38(1)   [Functions]  

The functions of the AUSTRAC CEO include:


(a) (Repealed by No 170 of 2006)


(ab) (Repealed by No 170 of 2006)


(b) to collect, retain, compile, analyse and disseminate FTR information; and


(c) to monitor entries made in financial institutions' exemption registers; and


(d) to provide advice and assistance to the Commissioner in relation to FTR information; and


(e) to issue guidelines to cash dealers about their obligations under this Act and the regulations.

38(2)   [Consultationswith cash dealers]  

In performing the AUSTRAC CEO's functions under this Act, the AUSTRAC CEO must:


(a) consult with cash dealers, or the representatives of cash dealers, in relation to the performance of the AUSTRAC CEO's functions under this Act; and


(b) take into account any comments made in the course of consultations referred to in paragraph (a).

38(3)   [Matters to which AUSTRAC CEO shall have regard]  

In performing the AUSTRAC CEO's functions under this Act, the AUSTRAC CEO must have regard to the desirability of:


(a) avoiding duplication in the analysis of information by the AUSTRAC CEO and the Commissioner;


(b) attaining compatibility and integration of FTR information and other information held by the Commissioner;


(c) maximising the utilisation of FTR information for taxation purposes; and


(d) consulting with the Commissioner in relation to the performance of the AUSTRAC CEO's functions under this Act.

38(4)   [Commissioner's comments and request]  

In performing the AUSTRAC CEO's functions under this Act, the AUSTRAC CEO must:


(a) take into account any comments made by the Commissioner in the course of consultations referred to in subsection (3); and


(b) carry out, as far as is practicable, analysis of FTR information at the request of the Commissioner.

38(5)   [Failure to comply]  

Any failure to comply with the requirements of subsection (2) in relation to the performance of a function of the AUSTRAC CEO does not affect the validity of the performance of the function.

SECTION 39   39   DELEGATION  
(Repealed by No 170 of 2006)

SECTION 40   40   STAFF  
(Repealed by No 170 of 2006)

SECTION 40A   40A   CONSULTANTS  
(Repealed by No 170 of 2006)

SECTION 40B   40B   ANNUAL REPORT  
(Repealed by No 170 of 2006)

PART VIA - RETAINING FINANCIAL TRANSACTION DOCUMENTS  

Division 1- Meaning of key terms used in this Part  

SECTION 40C   40C   DEFINITIONS  


In this Part:

account
means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals, and includes a facility or arrangement for:


(a) an interest bearing deposit lodged for a fixed period; and


(b) a safety deposit box.

financial transaction document
, in relation to a financial institution, means any document that relates to a financial transaction carried out, before the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, by the institution in its capacity as a financial institution and, without limiting the generality of this, includes a document relating to:


(a)the opening, operating or closing of an account held with the institution; and


(b) the opening or use of a safety deposit box held with the institution.

SECTION 40D   40D   MEANING OF CUSTOMER-GENERATED FINANCIAL TRANSACTION DOCUMENT  


In this Part:

customer-generated financial transaction document
, in relation to a financial institution, means a financial transaction document of the institution:


(a) that relates to one or more of the following financial transactions carried out before the commencement of Division 1 of Part 2 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006:


(i) the opening or closing by a person of an account with the institution;

(ii) the operation by a person of an account with the institution;

(iii) the opening or use by a person of a safety deposit box held by the institution;

(iv) the telegraphic or electronic transfer of funds by the institution on behalf of a person to another person;

(v) the transmission of funds between Australia and a foreign country or between foreign countries on behalf of a person;

(vi) an application by a person for a loan from the institution (where a loan is made to the person pursuant to the application); and


(b) that is given to the institution by or on behalf of the person (whether or not the document is signed by or on behalf of the person).

SECTION 40E   40E   MEANING OF MINIMUM RETENTION PERIOD  


The minimum retention period , in relation to a financial transaction document of a financial institution, is:


(a) if the document relates to the opening of an account with the institution - the period of 7 years after the day on which the account is closed; or


(b) if the document relates to the opening by a person of a safety deposit box held by the institution - the period of 7 years after the day on which the safety deposit box ceases to be used by the person; or


(c) in any other case - the period of 7 years after the day on which the transaction takes place.

Division 2 - Retaining financial transaction documents  

SECTION 40F   CUSTOMER-GENERATED FINANCIAL TRANSACTION DOCUMENTS NOT RELATING TO OPERATION OF ACCOUNTS  

40F(1)  


A financial institution commits an offence if:


(a) it does not retain, for the minimum retention period, the original of a customer-generated financial transaction document; and


(b) the document does not relate to the operation of an account held with the institution; and


(c) the document is not a cheque or payment order; and


(d) the financial institution is not required by law to release the original before the end of the minimum retention period.

Penalty: 100 penalty units.

40F(2)  
An offence against this section is an offence of strict liability.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

This section does not apply to documents relating to certain transferred accounts (see sections 40L and 40P).

SECTION 40G   RELEASING ORIGINAL DOCUMENTS IF REQUIRED BY LAW  

40G(1)  


A financial institution commits an offence if:


(a) before the end of the minimum retention period, it releases the original of a document that, but for paragraph 40F(1)(d), it would be obliged by section 40F to retain; and


(b) it does not retain a complete copy of the document until one of the following occurs:


(i) the period ends;

(ii) the original is returned.

Penalty: 100 penalty units.

40G(2)  


A financial institution commits an offence if it does not maintain a register of documents released as mentioned in paragraph (1)(a).

Penalty: 100 penalty units.

40G(3)  
An offence against this section is an offence of strict liability.

Note 1:

For strict liability , see section 6.1 of the Criminal Code.

Note 2:

This section does not apply to documents relating to certain transferred accounts (see sections 40L and 40P).

SECTION 40H   CUSTOMER-GENERATED FINANCIAL TRANSACTION DOCUMENTS RELATING TO OPERATION OF ACCOUNTS  

40H(1)  


A financial institution commits an offence if:


(a) it does not retain, for the minimum retention period, either the original or a copy of a customer-generated financial transaction document; and


(b) the document relates to the operation of an account held with the institution; and


(c) the document is not a cheque or payment order.

Penalty: 100 penalty units.

40H(2)  
Subsection (1) does not apply to a document that relates to a single deposit, credit, withdrawal, debit or transfer of an amount not exceeding:


(a) $200; or


(b) such higher amount as is specified in the regulations for the purposes of this subsection.

Note 1:

A defendant bears an evidential burden in relation to the defence in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

Subsection (1) also does not apply to documents relating to certain transferred accounts (see sections 40L and 40P).

40H(3)  
An offence against this section is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

SECTION 40J   RETAINING OTHER FINANCIAL TRANSACTION DOCUMENTS  

40J(1)  


A financial institution commits an offence if:


(a) it does not retain, for the minimum retention period, either the original or a copy of a financial transaction document that is not a customer-generated financial transaction document; and


(b) retaining the document is necessary to preserve a record of the transactions concerned; and


(c) the document is not a cheque or payment order.

Penalty: 100 penalty units.

40J(2)  
Subsection (1) does not apply to a document that relates to a single deposit, credit, withdrawal, debit or transfer of an amount not exceeding:


(a) $200; or


(b) such higher amount as is specified in the regulations for the purposes of this subsection.

Note 1:

A defendant bears an evidential burden in relation to the defence in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

Subsection (1) also does not apply to documents relating to certain transferred accounts (see sections 40L and 40P).

40J(3)  
An offence against this section is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

Division 3 - Obligations relating to active ADI accounts transferred to another ADI  

SECTION 40K   40K   TRANSFEROR ADI MUST GIVE DOCUMENTS TO TRANSFEREE ADI  


An ADI (the transferor ADI ) commits an offence if:


(a) a document is in its possession in fulfilment of an obligation imposed on it by section 40F, subsection 40G(1) or section 40H or 40J; and


(b) the document relates to an active account that has been, or is proposed to be, transferred to another ADI (the transferee ADI ) under:


(i) a law of the Commonwealth or of a State or Territory; or

(ii) an arrangement between the transferor ADI and the transferee ADI; and


(c) the transferor ADI intentionally fails to give the relevant document to the transferee ADI within the 120-day period beginning 30 days before the transfer of the account.

Penalty: 10 penalty units.

SECTION 40L   40L   COMPLIANT TRANSFEROR ADIs RELEASED FROM RETENTION OBLIGATIONS  


Sections 40F to 40J do not apply to the transferor ADI, in relation to the document, if it gave the original and all copies of the document to the transferee ADI within the 120-day period beginning 30 days before the transfer of the account.
Note:

A defendant bears an evidential burden in relation to the defence in this section (see subsection 13.3(3) of the Criminal Code).

SECTION 40M   40M   RETENTION OBLIGATIONS OF TRANSFEREE ADIs  


If the transferee ADI is given the original and all copies of the document within the 120-day period beginning 30 days before the transfer of the account, this Part applies to the transferee ADI in relation to the document as follows:


(a) if the document was covered by paragraphs 40F(1)(a) to (d) - as if the document were covered by those paragraphs in relation to the transferee ADI;


(b) if the document was covered by subsection 40H(1) - as if the document were covered by that subsection in relation to the transferee ADI;


(c) if the document was covered by subsection 40J(1) - as if the document were covered by that subsection in relation to the transferee ADI;


(d) in any case - as if the minimum retention period applicable to the document were the period of 7 years after the day on which the transferred account is closed.

Division 4 - Obligations relating to closed ADI accounts transferred to another ADI  

SECTION 40N   40N   TRANSFEROR ADI MAY GIVE DOCUMENTS TO TRANSFEREE ADI  


An ADI (the transferor ADI) may give the original and copies of a document (the second document ) relating to an account to another ADI (the transferee ADI ) if:


(a) the transferor ADI has given another document (the first document ) relating to the same account to the transferee ADI in accordance with section 40K; and

Note:

Paragraph 40K(1)(c) requires the document to have been given during a 120-day period.


(b) the second document is in the transferor ADI's possession in fulfilment of an obligation imposed on it by section 40F, subsection 40G(1) or section 40H or 40J; and


(c) the second document relates to a closed account; and


(d) the transferor ADI and the transferee ADI agree in writing that the second document should be given by the transferor ADI to the transferee ADI within the 120-day period relating to the giving of the first document.

SECTION 40P   40P   COMPLIANT TRANSFEROR ADIs RELEASED FROM RETENTION OBLIGATIONS  


Sections 40F to 40J do not apply to the transferor ADI, in relation to the second document, if it gave the original or a copy of that document to the transferee ADI within the 120-day period relating to the giving of the first document.
Note:

A defendant bears an evidential burden in relation to the defence in this section (see subsection 13.3(3) of the Criminal Code).

SECTION 40Q   40Q   RETENTION OBLIGATIONS OF TRANSFEREE ADIs  


If the transferee ADI is given the original or a copy of the second document within the 120-day period relating to the giving of the first document, this Part applies to the transferee ADI in relation to the second document as follows:


(a) if the second document was covered by paragraphs 40F(1)(a) to (d) - as if the second document were covered by those paragraphs in relation to the transferee ADI;


(b) if the second document was covered by subsection 40H(1) - as if the second document were covered by that subsection in relation to the transferee ADI;


(c) if the document was covered by subsection 40J(1) - as if the document were covered by that subsection in relation to the transferee ADI;


(d) in any case - as if the minimum retention period applicable to the second document were the period of 7 years after the day on which the account was closed.

Division 5 - Miscellaneous  

SECTION 40R   RETRIEVING DOCUMENTS MUST BE REASONABLY PRACTICABLE  

40R(1)  


A financial institution commits an offence if:


(a) it is required to retain documents under this Part; and


(b) does not retain and store them in a way that makes their retrieval reasonably practicable.

Penalty: 100 penalty units.

40R(2)  
An offence against this section is an offence of strict liability.

Note:

For strict liability , see section 6.1 of the Criminal Code.

SECTION 40S   40S   THIS PART DOES NOT LIMIT ANY OTHER RETENTION OBLIGATIONS  


This Part does not limit any other obligation of a financial institution to retain documents.

PART VII - MISCELLANEOUS  

SECTION 41   41   ACT NOT TO LIMIT COMMISSIONER'S POWERS  
Nothing in this Act limits any power that the Commissioner has, under any other law, to obtain information.

SECTION 41A   EXEMPTIONS BY THE AUSTRAC CEO  

41A(1)  
The AUSTRAC CEO may, by written instrument, exempt a specified person from one or more specified provisions of this Act.

Note:

For specification by class, see the Acts Interpretation Act 1901.

41A(2)  
An exemption may apply:


(a) unconditionally; or


(b) subject to specified conditions.

41A(3)  
A person to whom a condition specified in an exemption applies must comply with the condition.

41A(4)  
A copy of an exemption must be made available on AUSTRAC's website.

41A(5)  
An instrument under subsection (1) is not a legislative instrument.

SECTION 42   42   ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 NOT TO APPLY TO DECISIONS UNDER THIS ACT