An Act to combat money laundering and the financing of terrorism, and for other purposes
Part 1—Introduction
1 Short title
This Act may be cited as the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 12 December 2006 |
2. Sections 3 to 26 | The day after this Act receives the Royal Assent. | 13 December 2006 |
3. Part 2, Divisions 1 to 5 | The first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2007 |
4. Part 2, Division 6 | The first day after the end of the period of 24 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2008 |
5. Part 2, Division 7 | The first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2007 |
6. Part 3, Divisions 1 to 4 | The first day after the end of the period of 24 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2008 |
7. Part 3, Division 5 | The first day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. | 12 June 2007 |
8. Part 3, Division 6 | The first day after the end of the period of 24 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2008 |
9. Parts 4, 5 and 6 | The day after this Act receives the Royal Assent. | 13 December 2006 |
10. Part 7 | The first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2007 |
11. Part 8 | The first day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. | 12 June 2007 |
12. Part 9 | The day after this Act receives the Royal Assent. | 13 December 2006 |
13. Part 10, Divisions 1 and 2 | The day after this Act receives the Royal Assent. | 13 December 2006 |
14. Part 10, Division 3 | The first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2007 |
15. Part 10, Division 4 | The day after this Act receives the Royal Assent. | 13 December 2006 |
16. Part 10, Division 5 | The first day after the end of the period of 12 months beginning on the day on which this Act receives the Royal Assent. | 12 December 2007 |
17. Part 10, Division 6 | The first day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent. | 12 June 2007 |
18. Part 10, Division 7 | The day after this Act receives the Royal Assent. | 13 December 2006 |
19. Parts 11 to 18 | The day after this Act receives the Royal Assent. | 13 December 2006 |
20. Schedule 1 | The day after this Act receives the Royal Assent. | 13 December 2006 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Objects
(1) The objects of this Act include:
(aa) to provide for measures to detect, deter and disrupt money laundering, the financing of terrorism, and other serious financial crimes; and
(ab) to provide relevant Australian government bodies and their international counterparts with the information they need to investigate and prosecute money laundering offences, offences constituted by the financing of terrorism, and other serious crimes; and
(ac) to support cooperation and collaboration among reporting entities, AUSTRAC and other government agencies, particularly law enforcement agencies, to detect, deter and disrupt money laundering, the financing of terrorism, and other serious crimes; and
(ad) to promote public confidence in the Australian financial system through the enactment and implementation of controls and powers to detect, deter and disrupt money laundering, the financing of terrorism, and other serious crimes; and
(a) to fulfil Australia’s international obligations, including:
(i) Australia’s international obligations to combat money laundering; and
(ii) Australia’s international obligations to combat financing of terrorism; and
(b) to address matters of international concern, including:
(i) the need to combat money laundering; and
(ii) the need to combat financing of terrorism; and
(c) by addressing those matters of international concern, to affect beneficially Australia’s relations with:
(i) foreign countries; and
(ii) international organisations.
Note 1: The objects of this Act are achieved by (among other things) requiring information to be given to the AUSTRAC CEO and by allowing certain other agencies to access information collected by the AUSTRAC CEO.
Note 2: The objects mentioned in paragraphs (1)(a),(b) and (c) relate to the external affairs power. Schedule 1 (alternative constitutional basis) contains provisions designed to attract other legislative powers (including the taxation power).
(2) Relevant international obligations include obligations under the following:
(a) the United Nations Convention Against Corruption, done at New York on 31 October 2003 [2006] ATS 2;
(b) the United Nations Convention Against Transnational Organized Crime, done at New York on 15 November 2000 [2004] ATS 12;
(c) the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, done at Strasbourg on 8 November 1990 [1997] ATS 21;
(d) United Nations Security Council Resolution 1267 S/RES/1267 (1999);
(e) United Nations Security Council Resolution 1373 S/RES/1373 (2001);
(f) United Nations Security Council Resolution 1617 S/RES/1617 (2005).
(3) The following reflect international concern:
(a) the FATF Recommendations;
(b) the United Nations Convention Against Corruption, done at New York on 31 October 2003 [2006] ATS 2;
(c) the United Nations Convention Against Transnational Organized Crime, done at New York on 15 November 2000 [2004] ATS 12;
(d) the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, done at Strasbourg on 8 November 1990 [1997] ATS 21;
(e) the International Convention for the Suppression of the Financing of Terrorism, done at New York on 9 December 1999 [2002] ATS 23;
(f) United Nations General Assembly Resolution 51/210 A/RES/51/210 (1996);
(g) United Nations Security Council Resolution 1267 S/RES/1267 (1999);
(h) United Nations Security Council Resolution 1269 S/RES/1269 (1999);
(i) United Nations Security Council Resolution 1373 S/RES/1373 (2001);
(j) United Nations Security Council Resolution 1456 S/RES/1456 (2003);
(k) United Nations Security Council Resolution 1617 S/RES/1617 (2005).
Note 1: FATF Recommendations is defined in section 5.
Note 2: In 2006, the text of international agreements in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Note 3: In 2006, the text of United Nations Security Council resolutions and United Nations General Assembly resolutions was accessible through the United Nations website (www.un.org).
4 Simplified outline
The following is a simplified outline of this Act:
• A reporting entity is a financial institution, or other person, who provides designated services. (Designated services are listed in section 6.)
• A reporting entity must carry out a procedure to verify a customer’s identity before providing a designated service to the customer. However, in special cases, the procedure may be carried out after the provision of the designated service.
• Certain pre‑commencement customers are subject to modified identification procedures.
• Certain low‑risk services are subject to modified identification procedures.
• Reporting entities must report the following to the Chief Executive Officer of AUSTRAC (the Australian Transaction Reports and Analysis Centre):
(a) suspicious matters;
(b) certain transactions above a threshold.
• Certain international funds transfer instructions must be reported to the AUSTRAC CEO.
• Cross‑border movements of monetary instruments must be reported to the AUSTRAC CEO, a customs officer or a police officer if the total amount moved is above a threshold.
• Electronic funds transfer instructions must include certain information about the origin of the transferred money.
• Providers of registrable designated remittance services or registrable remittance network services must be registered with the AUSTRAC CEO.
• Providers of registrable digital currency exchange services must be registered with the AUSTRAC CEO.
• Reporting entities must have and comply with anti‑money laundering and counter‑terrorism financing programs.
• Financial institutions are subject to restrictions in connection with entering into correspondent banking relationships.
5 Definitions
In this Act:
account includes:
(a) a credit card account; and
(b) a loan account (other than a credit card account); and
(c) an account of money held in the form of units in:
(i) a cash management trust; or
(ii) a trust of a kind prescribed by the AML/CTF Rules.
To avoid doubt, it is immaterial whether:
(d) an account has a nil balance; or
(e) any transactions have been allowed in relation to an account.
account provider: if an account is with a person, the person is the account provider for the account.
acquiring: in determining whether something is a designated service, acquiring includes anything that, under the regulations, is taken to be acquiring for the purposes of this definition.
ADI (short for 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.
administrative action: see subsection 228A(9).
AFP member (short for Australian Federal Police member) means a member or special member of the Australian Federal Police.
agency:
(a) a Department of the Commonwealth is taken to be an agency of the Commonwealth for the purposes of this Act;
(b) a Department of a State is taken to be an agency of the State for the purposes of this Act;
(c) a Department of a Territory is taken to be an agency of the Territory for the purposes of this Act.
AGO means that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation, and includes any part of the Defence Force that performs functions on behalf of that part of the Department.
allowing a transaction: in determining whether a person has allowed a transaction, it is immaterial whether the person was obliged to allow the transaction.
AML/CTF Rules (short for Anti‑Money Laundering/Counter‑Terrorism Financing Rules) means the rules made under section 229.
anti‑money laundering and counter‑terrorism financing program has the meaning given by section 83.
applicable customer identification procedure: for the purposes of the application of this Act to customers of a reporting entity, applicable customer identification procedure has the meaning ascertained in accordance with:
(a) if all of the designated services provided by the reporting entity are covered by item 54 of table 1 in section 6, and there is no joint anti‑money laundering and counter‑terrorism financing program that applies to, and has been adopted by, the reporting entity:
(i) a special anti‑money laundering and counter‑terrorism financing program that applies to, and has been adopted by, the reporting entity; or
(ii) if the program has been varied on one or more occasions—the program as varied; or
(b) in any other case:
(i) Part B of an anti‑money laundering and counter‑terrorism financing program that applies to, and has been adopted by, the reporting entity; or
(ii) if the program has been varied on one or more occasions—Part B of the program as varied.
Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
approved means approved by the AUSTRAC CEO, in writing, for the purposes of the provision in which the term occurs.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
approved third‑party bill payment system means a bill payment system prescribed by the AML/CTF Rules.
arrangement includes:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
ASD means the Australian Signals Directorate.
ASIO means the Australian Security Intelligence Organisation.
ASIS means the Australian Secret Intelligence Service.
assessment, in relation to an individual, means an assessment prepared or provided by a credit reporting body under paragraph 35B(1)(a) in relation to the individual.
Attorney‑General’s Department means the Department administered by the Attorney‑General.
AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by section 209.
AUSTRAC CEO means the Chief Executive Officer of AUSTRAC.
AUSTRAC entrusted person means:
(a) the AUSTRAC CEO; or
(b) a member of the staff of AUSTRAC; or
(c) a person engaged as a consultant under subsection 225(1); or
(d) a person whose services are made available to the AUSTRAC CEO under subsection 225(3); or
(e) a member of a task force established by the AUSTRAC CEO under paragraph 212(1)(db); or
(f) the Director of AUSTRAC; or
(g) a person engaged as a consultant under repealed section 40A of the Financial Transaction Reports Act 1988.
Note: The former office of Director of AUSTRAC was established under the Financial Transaction Reports Act 1988.
AUSTRAC information means the following:
(a) information obtained by, or generated by, an AUSTRAC entrusted person under or for the purposes of this Act;
(b) information obtained by an AUSTRAC entrusted person under or for the purposes of any other law of the Commonwealth or a law of a State or a Territory;
(c) information obtained by an AUSTRAC entrusted person from a government body;
(d) FTR information (within the meaning of the Financial Transaction Reports Act 1988).
Australia, when used in a geographical sense, includes the external Territories.
Australian account means an account held in Australia.
Australian carbon credit unit has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011.
Australian financial services licence has the same meaning as in the Corporations Act 2001.
Australian government body means:
(a) the Commonwealth, a State or a Territory; or
(b) an agency or authority of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory.
authorised officer means:
(a) the AUSTRAC CEO; or
(b) a person for whom an appointment as an authorised officer is in force under section 145.
batched electronic funds transfer instruction means an electronic funds transfer instruction accepted by an ADI or a bank from a particular payer, where:
(a) the transfer instruction is one of a particular batch of electronic funds transfer instructions accepted by the ADI or bank from the payer; and
(b) the batch is, or is to be, passed on or dispatched in a single file that includes the complete payer information in respect of each of the electronic funds transfer instructions in the batch.
bearer negotiable instrument has the meaning given by section 17.
beneficiary institution, in relation to an electronic funds transfer instruction:
(a) in the case of a multiple‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(1); or
(b) in the case of a same‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(2); or
(c) in the case of a multiple‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(1); or
(d) in the case of a same‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(2).
bet includes wager.
betting instrument means a thing (whether real or virtual):
(a) that represents monetary value or digital currency value; and
(b) that is designed to be used for the purpose of, or for purposes which include:
(i) placing or making a bet; or
(ii) paying out winnings in respect of a bet;
but does not include:
(c) a gaming chip or token; or
(d) a thing that, under the AML/CTF Rules, is taken not to be a betting instrument.
bill of exchange has the same meaning as in paragraph 51(xvi) of the Constitution, but does not include a cheque unless the cheque is a cheque that an ADI, bank or other institution draws on itself.
borrow has a meaning corresponding to loan.
building society includes a society registered or incorporated as a co‑operative housing society or similar society under:
(a) a law of a State or Territory; or
(b) a law of a foreign country or a part of a foreign country.
bullion includes anything that, under the regulations, is taken to be bullion for the purposes of this Act.
business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.
business day means a day other than a Saturday, a Sunday or a public or bank holiday in the place concerned.
civil penalty order means an order under section 175.
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
commence to provide a designated service means:
(a) if the designated service is provided at an instant of time—provide the service; or
(b) if the designated service is provided over a period of time—begin to provide the service.
commercial goods carrier means a person who, in the normal course of a business, carries goods or mail for reward.
commercial passenger carrier means a person who, in the normal course of a business, carries passengers for reward.
Commonwealth place means:
(a) a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970; or
(b) a place in a Territory, where the place is owned by the Commonwealth.
Commonwealth Royal Commission means a Royal Commission within the meaning of the Royal Commissions Act 1902.
Commonwealth, State or Territory agency means any of the following:
(a) an agency, authority, body or organisation of the Commonwealth, a State or a Territory that has functions in relation to, or that is responsible for or deals with, law enforcement or investigation of corruption;
(b) an agency, authority, body or organisation of the Commonwealth, a State or a Territory that has functions in relation to, or that is responsible for or deals with, criminal intelligence, security intelligence, foreign intelligence or financial intelligence;
(c) an agency, authority, body or organisation of the Commonwealth, a State or a Territory that has functions in relation to the protection of the public revenue of the Commonwealth, a State or a Territory;
(d) an agency, authority, body or organisation of the Commonwealth, a State or a Territory that has regulatory functions;
(e) an agency, authority, body or organisation of the Commonwealth, a State or a Territory that has oversight functions under a law of the Commonwealth, a State or a Territory;
(f) a Department of the Commonwealth;
(g) a Commonwealth Royal Commission whose terms of reference include inquiry into whether unlawful conduct (however described) has, or might have, occurred;
(h) a State/Territory Royal Commission:
(i) whose terms of reference include inquiry into whether unlawful conduct (however described) has, or might have, occurred; and
(ii) that is specified in the AML/CTF Rules;
(i) any other agency, authority, body or organisation of the Commonwealth, a State or a Territory, being an agency, authority, body or organisation prescribed by the AML/CTF Rules;
(j) a task force that:
(i) is established by a Minister of the Commonwealth or of a State or Territory or established under a law of the Commonwealth, a State or a Territory; and
(ii) has functions of a kind described in paragraph (a), (b), (c) or (d);
(k) a person who holds an office or appointment under a law of the Commonwealth, a State or a Territory, being an office or appointment prescribed by the AML/CTF Rules.
company has the same meaning as in the Income Tax Assessment Act 1997.
Note: Under the Income Tax Assessment Act 1997, company includes an unincorporated association or body of persons.
complete payer information has the meaning given by section 71.
compliance record of a reporting entity means:
(a) a record that relates to the obligations under this Act, the regulations or the AML/CTF Rules of the reporting entity; or
(b) a record, copy or extract retained under Part 10 by the reporting entity.
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.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
contribution, in relation to an RSA, has the same meaning as in the Retirement Savings Accounts Act 1997.
controller of an eligible gaming machine venue has the meaning given by section 13.
control test: passing the control test has the meaning given by section 11.
corporate group has the meaning given by subsection 123(12).
correspondent banking relationship means a relationship that involves the provision by a financial institution (the first financial institution) of banking services to another financial institution, where:
(a) the first financial institution carries on an activity or business at or through a permanent establishment of the financial institution in a particular country; and
(b) the other financial institution carries on an activity or business at or through a permanent establishment of the other financial institution in another country; and
(c) the correspondent banking relationship relates, in whole or in part, to those permanent establishments; and
(d) the relationship is not of a kind specified in the AML/CTF Rules; and
(e) the banking services are not of a kind specified in the AML/CTF Rules.
For this purpose, banking service includes anything that, under the AML/CTF Rules, is taken to be a banking service for the purposes of this definition.
Note: For geographical links, see section 100.
country means Australia or a foreign country.
credit card has the same meaning as in Schedule 2 to the Competition and Consumer Act 2010.
credit reporting body has the same meaning as in the Privacy Act 1988.
custodial or depository service: see the definition of providing a custodial or depository service.
customer has the meaning given by section 6, and includes a prospective customer.
customs officer means an officer of Customs within the meaning of the Customs Act 1901.
damage, in relation to data, includes damage by erasure of data or addition of other data.
data includes:
(a) information in any form; or
(b) any program (or part of a program).
data storage device means a thing containing, or designed to contain, data for use by a computer.
debit card has the same meaning as in Schedule 2 to the Competition and Consumer Act 2010.
debit card account: if a debit card enables the holder of an account to debit the account, the account is a debit card account.
Defence Department means the Department administered by the Defence Minister.
Defence Minister means the Minister responsible for administering the Defence Act 1903.
Department of Foreign Affairs and Trade means the Department administered by the Foreign Affairs Minister.
derivative has the same meaning as in Chapter 7 of the Corporations Act 2001.
designated business group means a group of 2 or more persons, where:
(a) each member of the group has elected, in writing, to be a member of the group, and the election is in force; and
(b) each election was made in accordance with the AML/CTF Rules; and
(c) no member of the group is a member of another designated business group; and
(d) each member of the group satisfies such conditions (if any) as are specified in the AML/CTF Rules; and
(e) the group is not of a kind that, under the AML/CTF Rules, is ineligible to be a designated business group.
designated infringement notice provision has the meaning given by subsection 184(4).
designated remittance arrangement has the meaning given by section 10.
designated service has the meaning given by section 6.
digital currency means:
(a) a digital representation of value that:
(i) functions as a medium of exchange, a store of economic value, or a unit of account; and
(ii) is not issued by or under the authority of a government body; and
(iii) is interchangeable with money (including through the crediting of an account) and may be used as consideration for the supply of goods or services; and
(iv) is generally available to members of the public without any restriction on its use as consideration; or
(b) a means of exchange or digital process or crediting declared to be digital currency by the AML/CTF Rules;
but does not include any right or thing that, under the AML/CTF Rules, is taken not to be digital currency for the purposes of this Act.
Digital Currency Exchange Register has the meaning given by section 76B.
DIO means that part of the Defence Department known as the Defence Intelligence Organisation, and includes any part of the Defence Force that performs functions on behalf of that part of the Department.
director of a company includes a member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Director‑General of National Intelligence means the Director‑General of National Intelligence holding office under the Office of National Intelligence Act 2018.
disclose means divulge or communicate.
disposing of: in determining whether something is a designated service, disposing of includes anything that, under the regulations, is taken to be disposing of for the purposes of this definition.
electronic communication has the same meaning as in the Criminal Code.
electronic funds transfer instruction means:
(a) a multiple‑institution person‑to‑person electronic funds transfer instruction; or
(b) a same‑institution person‑to‑person electronic funds transfer instruction; or
(c) a multiple‑institution same‑person electronic funds transfer instruction; or
(d) a same‑institution same‑person electronic funds transfer instruction.
eligible gaming machine venue has the meaning given by section 13.
eligible international emissions unit has the same meaning as in the Australian National Registry of Emissions Units Act 2011.
eligible place means:
(b) a warehouse in respect of which a warehouse licence (within the meaning of Part V of the Customs Act 1901) is in force; or
(c) a port, airport, wharf or boarding station appointed under section 15 of the Customs Act 1901.
embarkation area means a section 234AA place within the meaning of the Customs Act 1901.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
enrolment details, in relation to a person, means such information relating to the person as is specified in the AML/CTF Rules.
entrusted investigating official means:
(a) the Commissioner of the Australian Federal Police; or
(b) the Chief Executive Officer of the Australian Crime Commission; or
(c) the Commissioner of Taxation; or
(d) the Comptroller‑General of Customs; or
(e) the National Anti‑Corruption Commissioner; or
(f) an investigating officer.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
examiner of the Australian Crime Commission means an examiner within the meaning of the Australian Crime Commission Act 2002.
exempt financial market operator issue of a security or derivative means the making available of the security or derivative, by the operator of a financial market (within the meaning of Chapter 7 of the Corporations Act 2001), in the course of operating the financial market.
exempt legal practitioner service means a service that, under the AML/CTF Rules, is taken to be an exempt legal practitioner service for the purposes of this Act.
external auditor means a person authorised under section 164 to be an external auditor for the purposes of this Act.
factoring includes anything that, under the regulations, is taken to be factoring for the purposes of this Act.
false customer name means a name other than a name by which the customer is commonly known.
FATF Recommendations (short for Financial Action Task Force Recommendations) means:
(a) all of the following Recommendations:
(i) the Forty Recommendations adopted by the Financial Action Task Force on Money Laundering (FATF) at its plenary meeting on 20 June 2003;
(ii) the Special Recommendations on Terrorist Financing adopted by the Financial Action Task Force on Money Laundering (FATF) at its special plenary meeting on 31 October 2001;
(iii) Special Recommendation IX on Terrorist Financing adopted by the Financial Action Task Force on Money Laundering (FATF) at its plenary meeting on 20‑22 October 2004; or
(b) if any or all of those Recommendations are amended—the Recommendations as so amended.
Note: In 2006, the text of the FATF Recommendations was available on the FATF website (www.fatf‑gafi.org).
Federal Court means the Federal Court of Australia.
financial institution means:
(a) an ADI; or
(b) a bank; or
(c) a building society; or
(d) a credit union; or
(e) a person specified in the AML/CTF Rules.
The AML/CTF Rules made under paragraph (e) may specify different persons to be financial institutions for the purposes of different provisions of this Act.
financing of terrorism means conduct that amounts to:
(a) an offence against section 102.6 or Division 103 of the Criminal Code; or
(b) an offence against section 20 or 21 of the Charter of the United Nations Act 1945; or
(c) an offence against a law of a State or Territory that corresponds to an offence referred to in paragraph (a) or (b); or
(d) an offence against a law of a foreign country or a part of a foreign country that corresponds to an offence referred to in paragraph (a) or (b).
Foreign Affairs Minister means the Minister responsible for administering the Diplomatic Privileges and Immunities Act 1967.
foreign agency means:
(a) a government body that has responsibility for:
(i) intelligence gathering for a foreign country; or
(ii) the security of a foreign country; or
(b) a government body that has responsibility for law enforcement or investigation of corruption in a foreign country or a part of a foreign country; or
(c) a government body that has responsibility for the protection of the public revenue of a foreign country; or
(d) a government body that has regulatory functions in a foreign country; or
(e) the European Police Office (Europol); or
(f) the International Criminal Police Organization (Interpol); or
(g) an international body prescribed by the regulations for the purposes of this paragraph.
foreign country includes a region where:
(a) the region is a colony, territory or protectorate of a foreign country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the region; or
(e) a foreign country is responsible for the region’s international relations.
foreign exchange contract means a contract:
(a) to buy or sell currency (whether Australian or not); or
(b) to exchange one currency (whether Australian or not) for another (whether Australian or not).
funds transfer chain has the meaning given by subsection 64(2).
game includes an electronic game, but does not include a lottery.
gaming chip or token means a chip or token for playing a game, where:
(a) the game is played for money or anything else of value; and
(b) the game is a game of chance or of mixed chance and skill.
gaming machine means a machine for playing a game, where:
(a) the game is played for money or anything else of value; and
(b) the game is a game of chance or of mixed chance and skill.
government body means:
(a) the government of a country; or
(b) an agency or authority of the government of a country; or
(c) the government of part of a country; or
(d) an agency or authority of the government of part of a country.
guarantee includes anything that, under the regulations, is taken to be a guarantee for the purposes of this Act.
incorporated includes formed. This definition does not apply to the expression unincorporated.
information obtained includes information obtained as a result of the production of a document.
infringement notice means an infringement notice under section 184.
infringement notice provision has the meaning given by subsection 184(1A).
international funds transfer instruction has the meaning given by section 46.
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) an examiner of the Australian Crime Commission; or
(e) a member of the staff of the Australian Crime Commission; or
(f) a National Anti‑Corruption Commission officer.
involves includes relates to.
issue, when used in relation to a security or derivative, includes grant or otherwise make available. The time when a derivative is issued is to be worked out under subsection 761E(3) of the Corporations Act 2001.
joint anti‑money laundering and counter‑terrorism financing program has the meaning given by subsection 85(1).
lease, when used in relation to goods, includes hire.
life policy means a life policy (within the meaning of the Life Insurance Act 1995), but does not include:
(a) a policy for which there is no prescribed minimum surrender value (other than that which may be provided for in the policy documentation and promotional material); or
(b) a regular premium policy to which paragraph (a) does not apply, where the amount, or the total of the amounts, payable by way of premium each year is not more than:
(i) $1,500; or
(ii) if a greater amount is specified in the AML/CTF Rules—that greater amount; or
(c) a single premium policy to which paragraph (a) does not apply, where the amount of the single premium is not more than:
(i) $3,000; or
(ii) if a greater amount is specified in the AML/CTF Rules—that greater amount; or
(d) a contract of consumer credit insurance (within the meaning of the Insurance Contracts Act 1984).
For the purposes of this definition, the question of whether a policy has a prescribed minimum surrender value is to be determined in accordance with prudential standards made under section 230A of the Life Insurance Act 1995 as in force from time to time.
loan includes:
(a) an advance of money; and
(b) the provision of credit or any other form of financial accommodation; and
(c) the payment of an amount for, on account of, on behalf of or at the request of a person where there is an obligation (whether expressed or implied) to repay the amount; and
(d) a transaction (whatever its terms or form) which in substance effects a loan of money;
but does not include:
(e) if goods (within the meaning of the Competition and Consumer Act 2010) are sold on credit—the provision by the seller of that credit; or
(f) if services (within the meaning of the Competition and Consumer Act 2010) are provided on credit—the provision by the provider of the service of that credit; or
(g) anything that, under the AML/CTF Rules, is taken not to be a loan for the purposes of this Act.
make available, when used in relation to money, includes reducing the balance of a loan account.
managed investment scheme has the same meaning as in the Corporations Act 2001.
Note: A notified foreign passport fund is a managed investment scheme for the purposes of that Act, see section 1213E of that Act.
member of the staff of the Australian Crime Commission has the same meaning as in the Australian Crime Commission Act 2002.
modifications includes additions, omissions and substitutions.
monetary instrument means any of the following:
(a) physical currency;
(b) a bearer negotiable instrument;
(c) a thing prescribed by the AML/CTF Rules.
monetary instrument amount for a monetary instrument means:
(a) for physical currency—the amount of the currency; or
(b) for a bearer negotiable instrument—the amount payable under the instrument; or
(c) for a thing prescribed by the AML/CTF Rules for the purposes of paragraph (c) of the definition of monetary instrument in this section—the amount worked out in accordance with the AML/CTF Rules.
money includes:
(a) physical currency; and
(b) money held in an account, whether denominated in Australian currency or any other currency; and
(c) money held on deposit, whether denominated in Australian currency or any other currency.
money laundering means conduct that amounts to:
(a) an offence against Division 400 of the Criminal Code; or
(b) an offence against a law of a State or Territory that corresponds to an offence referred to in paragraph (a); or
(c) an offence against a law of a foreign country or of a part of a foreign country that corresponds to an offence referred to in paragraph (a).
money laundering and terrorism financing risk assessment has the meaning given by subsection 165(6).
monitoring powers has the meaning given by section 148.
monitoring warrant means a warrant issued under section 159.
move:
(a) move a monetary instrument into Australia has the meaning given by section 55; and
(b) move a monetary instrument out of Australia has the meaning given by section 56.
multiple‑institution person‑to‑person electronic funds transfer instruction has the meaning given by subsection 8(1).
multiple‑institution same‑person electronic funds transfer instruction has the meaning given by subsection 9(1).
National Anti‑Corruption Commissioner means the Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
National Anti‑Corruption Commission officer means a staff member of the NACC within the meaning of the National Anti‑Corruption Commission Act 2022.
non‑financier means a person who is not:
(a) an ADI; or
(b) a bank; or
(c) a building society; or
(d) a credit union; or
(e) a person specified in the AML/CTF Rules.
non‑reportable cross‑border movement of monetary instruments means:
(a) a movement of one or more monetary instruments into Australia; or
(b) a movement of one or more monetary instruments out of Australia;
for which a report under section 53 is not required.
non‑reportable transaction: if:
(a) a reporting entity commences to provide, or provides, a designated service to a customer; and
(b) the provision of the service involves a transaction; and
(c) the transaction is not a threshold transaction;
the transaction is a non‑reportable transaction.
notified foreign passport fund has the same meaning as in the Corporations Act 2001.
offence:
(a) a reference in this Act to an offence against a law of the Commonwealth (including this Act) includes a reference to an offence against section 6 of the Crimes Act 1914 that relates to such an offence; and
(b) a reference in this Act to a particular offence includes a reference to an offence against section 6 of the Crimes Act 1914 that relates to that particular offence.
Note: For other ancillary offences, see section 11.6 of the Criminal Code.
officer:
(a) a director or secretary of a company is taken to be an officer of the company for the purposes of this Act;
(b) a partner of a partnership is taken to be an officer of the partnership for the purposes of this Act;
(c) a trustee or manager of a trust is taken to be an officer of the trust for the purposes of this Act.
official has the meaning given by section 22.
ONI means the Office of National Intelligence.
opening, in relation to an account, means creating the account. To avoid doubt, it is immaterial whether:
(a) the account number has been given to the holder of the account; or
(b) the holder of the account, or any other signatory to the account, can conduct a transaction in relation to the account.
ordering institution, in relation to an electronic funds transfer instruction:
(a) in the case of a multiple‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(1); or
(b) in the case of a same‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(2); or
(c) in the case of a multiple‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(1); or
(d) in the case of a same‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(2).
owner‑managed branch of an ADI has the meaning given by section 12.
partnership has the same meaning as in the Income Tax Assessment Act 1997.
payee, in relation to an electronic funds transfer instruction:
(a) in the case of a multiple‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(1); or
(b) in the case of a same‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(2); or
(c) in the case of a multiple‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(1); or
(d) in the case of a same‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(2).
payer, in relation to an electronic funds transfer instruction:
(a) in the case of a multiple‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(1); or
(b) in the case of a same‑institution person‑to‑person electronic funds transfer instruction—has the meaning given by subsection 8(2); or
(c) in the case of a multiple‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(1); or
(d) in the case of a same‑institution same‑person electronic funds transfer instruction—has the meaning given by subsection 9(2).
permanent establishment has the meaning given by section 21.
person means any of the following:
(a) an individual;
(b) a company;
(c) a trust;
(d) a partnership;
(e) a corporation sole;
(f) a body politic.
Note: See also sections 237 (partnerships), 238 (unincorporated associations) and 239 (trusts with multiple trustees).
personal information has the same meaning as in the Privacy Act 1988.
physical currency means the coin and printed money (whether 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.
police officer means:
(a) an AFP member; or
(b) a member of the police force or police service of a State or Territory.
prescribed foreign country means a foreign country declared by the regulations to be a prescribed foreign country for the purposes of this Act.
printed money means money comprising a note printed, written or otherwise made on polymer, paper or any other material.
produce includes permit access to.
promissory note has the same meaning as in paragraph 51(xvi) of the Constitution.
property means any legal or equitable estate or interest in real or personal property, including a contingent or prospective one, but does not include money or digital currency.
provide includes supply, grant or confer.
providing a custodial or depository service includes engaging in conduct that, under subsection 766E(1) of the Corporations Act 2001, constitutes providing a custodial or depository service, but does not include:
(a) conduct covered by subsection 766E(3) of that Act; or
(b) conduct specified in the AML/CTF Rules.
public official means:
(a) an employee or official of a government body; or
(b) an individual who holds or performs the duties of an appointment, office or position under a law of a country or of part of a country; or
(c) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a country or of part of a country; or
(d) an individual who is otherwise in the service of a government body (including service as a member of a military force, police force or police service); or
(e) a member of the executive, judiciary or magistracy of a country or of part of a country.
qualified accountant means a person who is a member of:
(a) CPA Australia; or
(b) Chartered Accountants Australia and New Zealand; or
(c) a body specified in the AML/CTF Rules.
receives a designated service: if a reporting entity provides a designated service to a customer, the customer receives the designated service from the reporting entity.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
registered digital currency exchange provider means a person registered under section 76E as a digital currency exchange provider.
registered independent remittance dealer means a person registered under section 75C as an independent remittance dealer.
registered remittance affiliate, of a registered remittance network provider, means a person registered under section 75C as a remittance affiliate of the registered remittance network provider.
registered remittance network provider means a person registered under section 75C as a remittance network provider.
registrable designated remittance service means a designated service that:
(a) is covered by item 31 or 32 of table 1 in section 6; and
(b) is provided by a person at or through a permanent establishment of the person in Australia; and
(c) is not of a kind specified in the AML/CTF Rules.
registrable details, in relation to a person, means such information relating to the person as is specified in the AML/CTF Rules.
Note: A person’s business name and business address are examples of information that could be specified in the AML/CTF Rules.
registrable digital currency exchange service means a designated service that:
(a) is covered by item 50A of table 1 in section 6; and
(b) is not of a kind specified in the AML/CTF Rules.
registrable remittance network service means a designated service that:
(a) is covered by item 32A of table 1 in section 6; and
(b) is not of a kind specified in the AML/CTF Rules.
registration means:
(a) in, or in relation to, Part 6—registration as any of the following:
(i) a remittance network provider;
(ii) an independent remittance dealer;
(iii) a remittance affiliate of a registered remittance network provider; or
(b) in, or in relation to, Part 6A—registration as a digital currency exchange provider.
remittance arrangement has the meaning given by section 10.
Remittance Sector Register has the meaning given by section 75.
reporting entity means a person who provides a designated service.
reporting entity business premises means:
(a) premises, or a part of premises, used wholly or partly for the purposes of the business operations of:
(i) a reporting entity; or
(ii) an agent of a reporting entity; or
(b) premises, or a part of premises, used wholly or partly for the purposes of the storage (whether in electronic form or otherwise) of records relating to the business operations of:
(i) a reporting entity; or
(ii) an agent of a reporting entity;
where the occupier of the premises, or the part of premises, carries on a business of storing records at the premises or the part of premises.
required transfer information has the meaning given by section 70.
resident of a country has the meaning given by section 14.
reviewable decision has the meaning given by section 233B.
RSA (short for retirement savings account) has the same meaning as in the Retirement Savings Accounts Act 1997.
RSA provider (short for retirement savings account provider) has the same meaning as in the Retirement Savings Accounts Act 1997.
same‑institution person‑to‑person electronic funds transfer instruction has the meaning given by subsection 8(2).
same‑institution same‑person electronic funds transfer instruction has the meaning given by subsection 9(2).
Secretary means the Secretary of the Department.
security has the meaning given by subsections 92(1) and (2) of the Corporations Act 2001.
Note: Security includes an interest in a managed investment scheme (or a notified foreign passport fund which is a managed investment scheme for the purposes of that Act, see section 1213E of that Act).
self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
send, in relation to a monetary instrument, includes send through the post.
service includes anything covered by an item of a table in section 6.
shell bank has the meaning given by section 15.
signatory, in relation to an account with an account provider, means the account holder or a person authorised by the account holder to manage or exercise effective control of the account, whether alone or jointly with one or more other persons.
sinking fund policy has the same meaning as in the Life Insurance Act 1995.
special anti‑money laundering and counter‑terrorism financing program has the meaning given by subsection 86(1).
standard anti‑money laundering and counter‑terrorism financing program has the meaning given by subsection 84(1).
state of mind of a person includes:
(a) the knowledge, intention, opinion, suspicion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
State/Territory Royal Commission means:
(a) a Royal Commission of a State or Territory; or
(b) a commission of inquiry of a State or Territory.
stored value card means a thing (whether real or virtual):
(a) that stores monetary value in a form other than physical currency; or
(b) that gives access to monetary value stored in a form other than physical currency; or
(c) that is declared to be a stored value card by the AML/CTF Rules;
but does not include:
(d) a debit card or a credit card (whether real or virtual) linked to an account provided by a financial institution; or
(e) unless declared under paragraph (c):
(i) a thing that is intended to give access to monetary value in a debit card or credit card account provided by a financial institution; or
(ii) a gaming chip or token, or a betting instrument; or
(iii) a thing that stores, or gives access to, digital currency; or
(f) a thing that, under the AML/CTF Rules, is taken not to be a stored value card.
subject to a requirement includes subject to a prohibition.
subsidiary has the same meaning as in the Corporations Act 2001.
superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
suspicious matter reporting obligation has the meaning given by subsection 41(1).
taxation law has the same meaning as in the Taxation Administration Act 1953.
taxation officer means:
(a) a Second Commissioner of Taxation; or
(b) a Deputy Commissioner of Taxation; or
(c) a person appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.
threshold transaction means:
(a) a transaction involving the transfer of physical currency, where the total amount of physical currency transferred is not less than $10,000; or
(c) if:
(i) the regulations provide that this definition applies to a specified transaction involving money; and
(ii) the regulations provide that a specified amount is the transaction threshold for the specified transaction;
the specified transaction, where the total amount transferred is not less than the transaction threshold for the transaction; or
(ca) if:
(i) the regulations provide that this definition applies to a specified transaction involving digital currency; and
(ii) the regulations provide that a specified amount is the transaction threshold for the specified transaction;
the specified transaction, where the total amount transferred is not less than the transaction threshold for the transaction; or
(d) if:
(i) the regulations provide that this definition applies to a specified transaction involving the transfer of property; and
(ii) the regulations provide that a specified amount is the transaction threshold for the specified transaction;
the specified transaction, where the total value transferred is not less than the transaction threshold for the transaction.
Paragraph (a) does not limit paragraph (c).
Note 1: See also section 18 (translation of foreign currency to Australian currency).
Note 2: See also section 19 (translation of digital currency to Australian currency).
Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003.
tracing information has the meaning given by section 72.
transaction includes a transaction of a non‑commercial nature.
transfer includes any act or thing, or any series or combination of acts or things, that may reasonably be regarded as the economic equivalent of a transfer (for example, debiting an amount from a person’s account and crediting an equivalent amount to another person’s account).
transferor entity, in relation to a remittance arrangement, has the meaning given by paragraph 10(3)(a).
trust means a person in the capacity of trustee or, as the case requires, a trust estate.
trustee has the same meaning as in the Income Tax Assessment Act 1997.
trust estate has the same meaning as in the Income Tax Assessment Act 1997.
ultimate transferee entity, in relation to a remittance arrangement, has the meaning given by paragraph 10(3)(b).
unincorporated association means an unincorporated association or body of persons.
unique reference number, for an electronic funds transfer instruction, means a combination of any or all of the following:
(a) letters;
(b) digits;
(c) characters;
(d) symbols;
which distinguishes the transfer instruction in a way that, either:
(e) alone; or
(f) in conjunction with any other information in the transfer instruction;
enables the ordering institution to identify the payer.
Examples:
(a) a combination of a BSB and account number;
(b) a reference number generated by the ordering institution.
value, in relation to transferred property, means the market value of the property as at the time of the transfer. In working out the market value of the property, disregard anything that would prevent or restrict conversion of the property to money.
verification request, in relation to an individual, means a request made by a reporting entity under paragraph 35A(1)(b) for an assessment in relation to the individual.
warrant premises, in relation to a monitoring warrant, means the premises to which the warrant relates.
6 Designated services
(1) For the purposes of this Act, the following tables define:
(a) the provision of a designated service; and
(b) the person (the customer) to whom the designated service is provided.
Table 1—Financial services
(2) Table 1 is as follows:
Table 1—Financial services |
Item | Provision of a designated service | Customer of the designated service |
1 | in the capacity of account provider, opening an account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the holder of the account |
2 | in the capacity of account provider for a new or existing account, allowing a person to become a signatory to the account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the signatory |
3 | in the capacity of account provider for an account, allowing a transaction to be conducted in relation to the account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | both: (a) the holder of the account; and (b) each other signatory to the account |
4 | accepting money on deposit (otherwise than by way of deposit to an account), where the deposit‑taker is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the person in whose name the deposit is held |
5 | in the capacity of deposit‑taker for a deposit, allowing a transaction to be conducted in relation to the deposit, where the deposit‑taker is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the person in whose name the deposit is held |
6 | making a loan, where the loan is made in the course of carrying on a loans business | the borrower |
7 | in the capacity of: (a) lender for a loan; or (b) assignee (whether immediate or otherwise) of the lender for a loan; allowing the borrower to conduct a transaction in relation to the loan, where the loan was made in the course of carrying on a loans business | the borrower |
8 | factoring a receivable, where the receivable is factored in the course of carrying on a factoring business | the person whose receivable is factored |
9 | forfaiting: (a) a bill of exchange; or (b) a promissory note; where the bill or note is forfaited in the course of carrying on a forfaiting business | the person whose bill or note is forfaited |
10 | supplying goods by way of lease under a finance lease, where: (a) the goods are not acquired by a consumer (within the meaning of section 4B of the Competition and Consumer Act 2010); and (b) the supply is in the course of carrying on a finance leasing business | the lessee |
11 | in the capacity of lessor under a finance lease, allowing the lessee to conduct a transaction in relation to the lease, where: (a) the goods were not acquired by a consumer (within the meaning of section 4B of the Competition and Consumer Act 2010); and (b) the supply was in the course of carrying on a finance leasing business | the lessee |
12 | supplying goods to a person by way of hire‑purchase, where: (a) the goods are not acquired by a consumer (within the meaning of section 4B of the Competition and Consumer Act 2010); and (b) the supply is in the course of carrying on a business of supplying goods | the person |
13 | in the capacity of supplier of goods to a person by way of hire‑purchase, allowing the person to conduct a transaction in relation to the hire‑purchase agreement concerned, where: (a) the goods were not acquired by a consumer (within the meaning of section 4B of the Competition and Consumer Act 2010); and (b) the supply was in the course of carrying on a business of supplying goods | the person |
14 | in the capacity of account provider for an account, providing a chequebook, or a similar facility, that enables the holder of the account to draw a cheque on the account | the holder of the account |
15 | in the capacity of building society or credit union, providing a chequebook, or a similar facility, that enables the holder of an account with the building society or credit union to draw a cheque on an account held by the building society or credit union | the holder of the account with the building society or credit union |
16 | in the capacity of trustee or manager of a trust, providing a chequebook, or a similar facility, that enables the holder of a beneficial interest in the trust to draw a cheque on an account held by the trustee or manager of the trust | the holder of the beneficial interest in the trust |
17 | issuing: (a) a bill of exchange; or (b) a promissory note; or (c) a letter of credit; to a person, where the bill, note or letter is issued by: (d) an ADI; or (e) a bank; or (f) a building society; or (g) a credit union; or (h) a person specified in the AML/CTF Rules | the person |
18 | issuing a debit card that enables the holder of an account to debit the account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the holder of the account |
18A | issuing a debit card that enables a signatory to an account (other than the holder of the account) to debit the account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the signatory |
19 | in the capacity of building society or credit union, issuing a debit card that enables the holder of an account with the building society or credit union to debit an account held by the building society or credit union, where the account provider of the last‑mentioned account is: (a) an ADI; or (b) a bank; or (c) a person specified in the AML/CTF Rules | the holder of the account with building society or credit union |
19A | in the capacity of building society or credit union, issuing a debit card that enables a signatory to an account with the building society or credit union (other than the holder of the account with the building society or credit union) to debit an account held by the building society or credit union, where the account provider of the last‑mentioned account is: (a) an ADI; or (b) a bank; or (c) a person specified in the AML/CTF Rules | the signatory |
20 | in the capacity of trustee or manager of a trust, issuing a debit card that enables the holder of a beneficial interest in the trust to debit an account held by the trustee or manager of the trust, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the holder of the beneficial interest in the trust |
20A | in the capacity of trustee or manager of a trust, issuing a debit card that enables a signatory authorised by the holder of a beneficial interest in the trust to debit an account held by the trustee or manager of the trust, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules | the signatory |
21 | issuing a stored value card to a person, where: (a) the whole or a part of the monetary value stored in connection with the card may be withdrawn in cash; and (b) the monetary value stored in connection with the card is not less than: (i) $1,000; or (ii) if another amount is specified in the regulations—that other amount | the person |
22 | increasing the monetary value stored in connection with a stored value card held by a person, where: (a) the whole or a part of the monetary value stored in connection with the card may be withdrawn in cash; and (b) the increased monetary value is not less than: (i) $1,000; or (ii) if another amount is specified in the regulations—that other amount | the person |
23 | issuing a stored value card to a person, where: (a) no part of the monetary value stored in connection with the card may be withdrawn in cash; and (b) the monetary value stored in connection with the card is not less than: (i) $5,000; or (ii) if another amount is specified in the regulations—that other amount | the person |
24 | increasing the monetary value stored in connection with a stored value card held by a person, where: (a) no part of the monetary value stored in connection with the card may be withdrawn in cash; and (b) the increased monetary value is not less than: (i) $5,000; or (ii) if another amount is specified in the regulations—that other amount | the person |
25 | issuing a traveller’s cheque to a person | the person |
26 | in the capacity of issuer of a traveller’s cheque, cashing or redeeming a traveller’s cheque held by a person | the person |
27 | issuing a money order, postal order or similar order to a person, where the face value of the order is not less than: (a) $1,000; or (b) if another amount is specified in the regulations—that other amount | the person |
28 | in the capacity of issuer of a money order, postal order or similar order, cashing or redeeming a money order, postal order or similar order held by a person, where the face value of the order is not less than: (a) $1,000; or (b) if another amount is specified in the regulations—that other amount | the person |
29 | in the capacity of ordering institution, accepting an electronic funds transfer instruction from the payer | the payer |
30 | in the capacity of beneficiary institution, making money available to the payee as a result of an electronic funds transfer instruction | the payee |
31 | in the capacity of a non‑financier carrying on a business of giving effect to remittance arrangements, accepting an instruction from a transferor entity for the transfer of money or property under a designated remittance arrangement | the transferor entity |
32 | in the capacity of a non‑financier carrying on a business of giving effect to remittance arrangements, making money or property available, or arranging for it to be made available, to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement | the ultimate transferee entity |
32A | operating a network of persons by providing a platform or operating system (however described), where: (a) the persons in the network provide a designated service referred to in item 31 or 32 by means of the platform or operating system; and (b) the operator is a non‑financier. | the person who provides designated services as part of the network |
33 | in the capacity of agent of a person, acquiring or disposing of: (a) a security; or (b) a derivative; or (ba) an Australian carbon credit unit; or (bb) an eligible international emissions unit; or (c) a foreign exchange contract; on behalf of the person, where: (d) the acquisition or disposal is in the course of carrying on a business of acquiring or disposing of securities, derivatives, Australian carbon credit units, eligible international emissions units or foreign exchange contracts in the capacity of agent; and (e) the service is not specified in the AML/CTF Rules | the person |
34 | in the capacity of agent of a person, acquiring or disposing of: (a) a bill of exchange; or (b) a promissory note; or (c) a letter of credit; on behalf of the person, where: (d) the acquisition or disposal is in the course of carrying on a business of acquiring or disposing of bills of exchange, promissory notes or letters of credit in the capacity of agent; and (e) the service is not specified in the AML/CTF Rules | the person |
35 | issuing or selling a security or derivative to a person, where: (a) the issue or sale is in the course of carrying on a business of issuing or selling securities or derivatives; and (b) in the case of an issue of a security or derivative—the issue does not consist of the issue by a company of either of the following: (i) a security of the company (other than an interest in a managed investment scheme); or (ii) an option to acquire a security of the company (other than an option to acquire an interest in a managed investment scheme); and (ba) in the case of an issue of a security or derivative—the issue does not consist of the issue by a government body of a security of the government body or of an option to acquire a security of the government body; and (c) in the case of an issue of a security or derivative—the issue is not an exempt financial market operator issue; and (d) such other conditions (if any) as are set out in the AML/CTF Rules are satisfied | the person |
36 | in the capacity of issuer of a bearer bond, redeeming a bearer bond | the person to whom the proceeds of the redemption are paid |
37 | issuing, or undertaking liability as the insurer under, a life policy or sinking fund policy | the holder of the policy |
38 | in the capacity of insurer for a life policy or sinking fund policy, accepting a premium in relation to the policy | the holder of the policy |
39 | in the capacity of insurer for a life policy or sinking fund policy, making a payment to a person under the policy | the person |
40 | in the capacity of provider of a pension or annuity, accepting payment of the purchase price for a new pension or annuity, where: (a) the provider is not a self managed superannuation fund; or (b) the pension or annuity is provided in the course of carrying on a business of providing pensions or annuities | the person to whom the pension or annuity is to be paid |
41 | in the capacity of provider of a pension or annuity, making a payment to a person by way of: (a) a payment of the pension or annuity; or (b) an amount resulting from the commutation, in whole or in part, of the pension or annuity; or (c) the residual capital value of the pension or annuity; where the provider is not a self managed superannuation fund | the person |
42 | in the capacity of trustee of: (a) a superannuation fund (other than a self managed superannuation fund); or (b) an approved deposit fund; accepting a contribution, roll‑over or transfer in respect of a new or existing member of the fund | the member |
43 | in the capacity of trustee of: (a) a superannuation fund (other than a self managed superannuation fund); or (b) an approved deposit fund; cashing the whole or a part of an interest held by a member of the fund | the member, or if the member has died, the person, or each of the persons, who receives the cashed whole or a cashed part of the relevant interest |
44 | in the capacity of RSA provider, accepting a contribution, roll‑over or transfer to an RSA in respect of a new or existing RSA holder | the RSA holder |
45 | in the capacity of RSA provider, cashing the whole or a part of an interest held by an RSA holder | the RSA holder, or if the RSA holder has died, the person, or each of the persons, who receives the cashed whole or a cashed part of the relevant interest |
46 | providing a custodial or depository service, where: (a) the service is provided in the course of carrying on a business of providing custodial or depository services; and (b) the service is not an exempt legal practitioner service | the client of the service |
47 | providing a safe deposit box, or similar facility, where: (a) the service is provided in the course of carrying on a business of providing safe deposit boxes or similar facilities; and (b) the service is not an exempt legal practitioner service | the person who is, or each of the persons who are, authorised to lodge items in the safe deposit box or similar facility |
48 | guaranteeing a loan, where the guarantee is given in the course of carrying on a business of guaranteeing loans | both: (a) the lender; and (b) the borrower |
49 | in the capacity of guarantor of a loan, making a payment to the lender, where the guarantee was given in the course of carrying on a business of guaranteeing loans | both: (a) the lender; and (b) the borrower |
50 | exchanging one currency (whether Australian or not) for another (whether Australian or not), where the exchange is provided in the course of carrying on a currency exchange business | the person whose currency is exchanged |
50A | exchanging digital currency for money (whether Australian or not) or exchanging money (whether Australian or not) for digital currency, where the exchange is provided in the course of carrying on a digital currency exchange business | the person whose digital currency or money is exchanged |
52 | preparing a pay‑roll, on behalf of a person, in whole or in part from physical currency collected, where the service is provided in the course of carrying on a business of preparing pay‑rolls | the person |
54 | in the capacity of holder of an Australian financial services licence, making arrangements for a person to receive a designated service (other than a service covered by this item) | the person |
Note 1: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Note 2: For the purposes of item 35 of the table, a notified foreign passport fund is a managed investment scheme, see the definition of managed investment scheme in section 5.
Table 2—Bullion
(3) Table 2 is as follows:
Table 2—Bullion |
Item | Provision of a designated service | Customer of the designated service |
1 | buying bullion, where the buying is in the course of carrying on a bullion‑dealing business | the person from whom the bullion is bought |
2 | selling bullion, where the selling is in the course of carrying on a bullion‑dealing business | the person to whom the bullion is sold |
Table 3—Gambling services
(4) Table 3 is as follows:
Table 3—Gambling services |
Item | Provision of a designated service | Customer of the designated service |
1 | receiving or accepting a bet placed or made by a person, where the service is provided in the course of carrying on a gambling business | the person |
2 | placing or making a bet on behalf of a person, where the service is provided in the course of carrying on a gambling business | the person |
3 | introducing a person who wishes to make or place a bet to another person who is willing to receive or accept the bet, where the service is provided in the course of carrying on a gambling business | both: (a) the person who wishes to make or place the bet; and (b) the person who is willing to receive or accept the bet |
4 | paying out winnings in respect of a bet, where the service is provided in the course of carrying on a gambling business | the person to whom the winnings are paid |
5 | in the capacity of controller of an eligible gaming machine venue, allowing a person to play a game on a gaming machine located at the venue, where the service is provided in the course of carrying on a business | the person |
6 | accepting the entry of a person into a game, where: (a) the game is played for money or anything else of value; and (b) the game is a game of chance or of mixed chance and skill; and (c) the service is provided in the course of carrying on a gambling business; and (d) the game is not played on a gaming machine located at an eligible gaming machine venue | the person |
7 | exchanging money or digital currency for gaming chips or tokens, or betting instruments, where the service is provided in the course of carrying on a business | the person whose money or digital currency is exchanged |
8 | exchanging gaming chips or tokens, or betting instruments, for money or digital currency, where the service is provided in the course of carrying on a business | the person whose gaming chips or tokens, or betting instruments, are exchanged |
9 | paying out winnings, or awarding a prize, in respect of a game, where: (a) the game is played for money or anything else of value; and (b) the game is a game of chance or of mixed chance and skill; and (c) the service is provided in the course of carrying on a gambling business; and (d) the game is not played on a gaming machine located at an eligible gaming machine venue | the person to whom the winnings are paid or the prize is awarded |
10 | in the capacity of controller of an eligible gaming machine venue, paying out winnings, or awarding a prize, in respect of a game, where: (a) the game is played on a gaming machine located at the venue; and (b) the winnings are paid out, or the prize is awarded, by the controller as agent of the owner or lessee of the gaming machine; and (c) the service is provided in the course of carrying on a business | the person to whom the winnings are paid or the prize is awarded |
11 | in the capacity of account provider, opening an account, where: (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a gambling business | the holder of the account |
12 | in the capacity of account provider for a new or existing account, allowing a person to become a signatory to the account, where: (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a gambling business | the signatory |
13 | in the capacity of account provider for an account, allowing a transaction to be conducted in relation to the account, where: (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a gambling business | both: (a) the holder of the account; and (b) each other signatory to the account |
14 | exchanging one currency (whether Australian or not) for another (whether Australian or not), where: (a) the exchange is provided by a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the service is provided in the course of carrying on a business | the person whose currency is exchanged |
Table 4—Prescribed services
(5) Table 4 is as follows:
Table 4—Prescribed services |
Item | Provision of a designated service | Customer of the designated service |
1 | providing a service specified in the regulations | the person who, under the regulations, is taken to be the person to whom the service is provided |
Geographical link
(6) An item of a table in this section, other than item 32A of table 1, does not apply to the provision by a person of a service to a customer unless:
(a) the service is provided at or through a permanent establishment of the person in Australia; or
(b) both of the following subparagraphs apply:
(i) the person is a resident of Australia;
(ii) the service is provided at or through a permanent establishment of the person in a foreign country; or
(c) both of the following subparagraphs apply:
(i) the person is a subsidiary of a company that is a resident of Australia;
(ii) the service is provided at or through a permanent establishment of the person in a foreign country.
Note: For resident, see section 14.
Amendment of items
(7) The regulations may amend an item of a table in this section.
7 Services provided jointly to 2 or more customers
(1) For the purposes of this Act, if a designated service is provided jointly to 2 or more customers, the service is taken to have been provided to each of those customers.
(2) For the purposes of this Act, if 2 or more persons are prospective joint customers in relation to a designated service, each of those persons is taken to be a prospective customer in relation to the designated service.
Note: See also the definition of customer in section 5.
8 Person‑to‑person electronic funds transfer instructions
Multiple‑institution person‑to‑person electronic funds transfer instruction
(1) For the purposes of this Act, if:
(a) a person (the payer) instructs a person (the ordering institution) to transfer money controlled by the payer to a third person (the payee) on the basis that the transferred money will be made available to the payee by:
(i) being credited to an account held by the payee with a fourth person (the beneficiary institution); or
(ii) being paid to the payee by a fourth person (the beneficiary institution); and
(b) either:
(i) the transfer is to be carried out wholly or partly by means of one or more electronic communications; or
(ii) the transfer instruction is to be passed on wholly or partly by means of one or more electronic communications; and
(c) the ordering institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules; and
(d) the beneficiary institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules;
then:
(e) the instruction is a multiple‑institution person‑to‑person electronic funds transfer instruction; and
(f) if there are one or more persons interposed between the ordering institution and the beneficiary institution—disregard those interposed persons in working out the identities of the following:
(i) the payer;
(ii) the ordering institution;
(iii) the payee;
(iv) the beneficiary institution.
Note: Transfer has an extended meaning—see section 5.
Same‑institution person‑to‑person electronic funds transfer instruction
(2) For the purposes of this Act, if:
(a) a person (the payer) instructs a person (the ordering institution) to transfer money controlled by the payer to a third person (the payee) on the basis that the transferred money will be made available to the payee by:
(i) being credited to an account held by the payee with the ordering institution; or
(ii) being paid to the payee by the ordering institution; and
(b) the transfer is to be carried out wholly or partly by means of one or more electronic communications; and
(c) the ordering institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules;
then:
(d) the instruction is a same‑institution person‑to‑person electronic funds transfer instruction; and
(e) for the purposes of the application of this Act to making the money available to the payee, the ordering institution may also be known as the beneficiary institution.
Note: Transfer has an extended meaning—see section 5.
9 Same‑person electronic funds transfer instructions
Multiple‑institution same‑person electronic funds transfer instruction
(1) For the purposes of this Act, if:
(a) a person (the payer) instructs a person (the ordering institution) to transfer money controlled by the payer to a third person (the beneficiary institution) on the basis that the transferred money will be made available to the payer by:
(i) being credited to an account held by the payer with the beneficiary institution; or
(ii) being paid to the payer by the beneficiary institution; and
(b) either:
(i) the transfer is to be carried out wholly or partly by means of one or more electronic communications; or
(ii) the transfer instruction is to be passed on wholly or partly by means of one or more electronic communications; and
(c) the ordering institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules; and
(d) the beneficiary institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules;
then:
(e) the instruction is a multiple‑institution same‑person electronic funds transfer instruction; and
(f) for the purposes of the application of this Act to making the money available to the payer, the payer may also be known as the payee; and
(g) if there are one or more persons interposed between the ordering institution and the beneficiary institution—disregard those interposed persons in working out the identities of the following:
(i) the payer;
(ii) the ordering institution;
(iii) the beneficiary institution.
Note: Transfer has an extended meaning—see section 5.
Same‑institution same‑person electronic funds transfer instruction
(2) For the purposes of this Act, if:
(a) a person (the payer) instructs a person (the ordering institution) to make money controlled by the payer available to the payer by:
(i) being credited to an account held by the payer with the ordering institution; or
(ii) being paid to the payer by the ordering institution; and
(b) the transfer is to be carried out wholly or partly by means of one or more electronic communications; and
(c) the ordering institution is:
(i) an ADI; or
(ii) a bank; or
(iii) a building society; or
(iv) a credit union; or
(v) a person specified in the AML/CTF Rules;
then:
(d) the instruction is a same‑institution same‑person electronic funds transfer instruction; and
(e) for the purposes of the application of this Act to making the money available to the payer:
(i) the payer may also be known as the payee; and
(ii) the ordering institution may also be known as the beneficiary institution.
10 Designated remittance arrangements etc.
(1) A reference in this Act to a designated remittance arrangement is a reference to a remittance arrangement, where:
(a) at least one of the persons described in the following subparagraphs is a non‑financier:
(i) a person who accepts an instruction from the transferor entity for the transfer of money or property under the remittance arrangement;
(ii) a person who makes money or property available, or arranges for it to be made available, to an ultimate transferee entity as a result of a transfer under the remittance arrangement; and
(c) the remittance arrangement satisfies such other conditions (if any) as are specified in the AML/CTF Rules.
Remittance arrangement
(2) A reference in this Act to a remittance arrangement is a reference to an arrangement that is for the transfer of money or property, and includes a reference to an arrangement that, under the regulations, is taken to be a remittance arrangement for the purposes of this Act.
Note: Transfer has an extended meaning—see section 5.
Transferor entity and ultimate transferee entity
(3) For the purposes of the application of this Act to a remittance arrangement:
(a) the transferor entity is the person from whom an instruction is accepted for the transfer of money or property under the arrangement; and
(b) the ultimate transferee entity is the person to whom money or property is ultimately transferred under the arrangement.
Note: Transfer has an extended meaning—see section 5.
11 Control test
(1) For the purposes of this Act, the question whether an individual passes the control test in relation to a company is to be determined in the same manner in which that question is determined for the purposes of section 1207Q of the Social Security Act 1991.
(2) For the purposes of this Act, the question whether an individual passes the control test in relation to a trust is to be determined in the same manner in which that question is determined for the purposes of section 1207V of the Social Security Act 1991.
(3) For the purposes of subsections (1) and (2) of this section, assume that paragraph 1207C(1)(g) and subsections 1207C(2), (3) and (4) of the Social Security Act 1991 had not been enacted.
Note: The control test is used in sections 14 (residency) and 15 (shell banks).
12 Owner‑managed branches of ADIs
(1) For the purposes of this Act, if a person is a party to an exclusive arrangement with an ADI to offer designated services advertised or promoted under a single brand, trade mark or business name, the person is an owner‑managed branch of the ADI.
(2) For the purposes of this Act, if an owner‑managed branch of an ADI proposes to provide, commences to provide, or provides, such a designated service, the designated service is taken to have been proposed to be provided, to have been commenced to have been provided, or to have been provided, as the case requires, by the ADI.
13 Eligible gaming machine venues
For the purposes of this Act, if:
(a) a person (the first person) is in control of a particular venue; and
(b) one or more gaming machines are located at the venue; and
(c) the first person is neither the owner nor the lessee of the gaming machines; and
(d) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
then:
(e) the venue is an eligible gaming machine venue; and
(f) the first person is the controller of the venue.
14 Residency
Individual
(1) For the purposes of this Act, an individual (including an individual in the capacity of trustee) is a resident of a particular country if, and only if, the individual is ordinarily resident in that country.
Note: See also subsections (7), (8) and (9).
Company
(2) For the purposes of this Act, a company (including a company in the capacity of trustee) is a resident of a particular country if, and only if:
(a) the company is incorporated in that country; or
(b) both:
(i) an individual passes the control test in relation to the company; and
(ii) the individual is a resident of that country.
Trust
(3) For the purposes of this Act, a trust is a resident of a particular country if, and only if:
(a) the trustee, or any of the trustees, is a resident of that country; or
(b) both:
(i) an individual passes the control test in relation to the trust; and
(ii) the individual is a resident of that country; or
(c) both:
(i) a person benefits or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting under the trust, either directly or through any interposed companies, partnerships or trusts; and
(ii) the person is a resident of that country.
Partnership
(4) For the purposes of this Act, a partnership is a resident of a particular country if, and only if, a partner is a resident of that country.
Corporation sole
(5) For the purposes of this Act, a corporation sole is a resident of a particular country if, and only if, the corporation sole was established in that country.
Body politic
(6) For the purposes of this Act, a body politic of, or of a part of, a particular country is a resident of that country.
When an individual is ordinarily resident in a particular country
(7) The AML/CTF Rules may specify matters that are to be taken into account in determining, for the purposes of this section, whether an individual (including an individual in the capacity of trustee) is ordinarily resident in a particular country.
(8) The AML/CTF Rules may provide that an individual (including an individual in the capacity of trustee) is taken, for the purposes of this section, to be ordinarily resident in a particular country if the individual satisfies one or more specified conditions.
(9) The AML/CTF Rules may provide that an individual (including an individual in the capacity of trustee) is taken, for the purposes of this section, not to be ordinarily resident in a particular country if the individual satisfies one or more specified conditions.
Note: The expression resident is used in subsection 6(6) (designated services) and sections 100 (correspondent banking) and 102 (countermeasures).
15 Shell banks
(1) For the purposes of this Act, a shell bank is a corporation that:
(a) is incorporated in a foreign country; and
(b) is authorised to carry on banking business in its country of incorporation; and
(c) does not have a physical presence in its country of incorporation; and
(d) is not an affiliate of another corporation that:
(i) is incorporated in a particular country; and
(ii) is authorised to carry on banking business in its country of incorporation; and
(iii) has a physical presence in its country of incorporation.
When a corporation has a physical presence in a country
(2) For the purposes of determining what is a shell bank, a corporation has a physical presence in a country if, and only if:
(a) the corporation carries on banking business at a place in that country; and
(b) at least one full‑time employee of the corporation performs banking‑related duties at that place.
When a corporation is affiliated with another corporation
(3) For the purposes of determining what is a shell bank, a corporation is affiliated with another corporation if, and only if:
(a) the corporation is a subsidiary of the other corporation; or
(b) at least one individual passes the control test in relation to both corporations; or
(c) under the regulations, both corporations are taken to be under common control.
16 Electronic communications
(1) Unless the contrary intention appears, in determining the application of a provision of this Act, it is immaterial whether any act or thing is or was done wholly or partly by means of one or more electronic communications.
(2) Subsection (1) is enacted for the avoidance of doubt.
17 Bearer negotiable instruments
(1) For the purposes of this Act, a bearer negotiable instrument is:
(a) a bill of exchange; or
(b) a cheque; or
(c) a promissory note; or
(d) a bearer bond; or
(e) a traveller’s cheque; or
(f) a money order, postal order or similar order; or
(g) a negotiable instrument not covered by any of the above paragraphs.
Incomplete documents
(2) For the purposes of determining whether a document is covered by paragraph (1)(f) or (g), it is immaterial that the document is incomplete because the document does not specify:
(a) an amount to be paid; or
(b) a payee.
18 Translation of foreign currency to Australian currency
In determining, for the purposes of this Act, whether an amount of foreign currency (including an amount in which a 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.
19 Translation of digital currency to Australian currency
In determining, for the purposes of this Act, whether an amount of digital currency is not less than an Australian dollar amount, the amount of digital currency is to be translated to Australian currency in accordance with the method specified in the AML/CTF Rules.
20 Clubs and associations
For the purposes of this Act, the fact that a club or association provides services to its members does not prevent those services from being services provided in the course of carrying on a business.
21 Permanent establishment
(1) For the purposes of this Act, a permanent establishment of a person is a place at or through which the person carries on any activities or business, and includes a place where the person is carrying on activities or business through an agent.
Mobile services etc.
(2) For the purposes of this Act, if:
(a) a person; or
(b) an agent of a person acting on behalf of the person;
provides a service while:
(c) operating on a mobile basis; or
(d) travelling;
in a particular country, the person is taken to provide the service at or through a permanent establishment of the person in that country.
Electronic communications
(3) The regulations may provide that, if:
(a) a person provides a specified service wholly or partly by means of one or more electronic communications; and
(b) the conditions set out in the regulations are taken to be satisfied in relation to a particular country;
then:
(c) the service is taken, for the purposes of this Act, to be provided at or through a permanent establishment of the person in that country; and
(d) the service is taken, for the purposes of this Act, not to be provided at or through a permanent establishment of the person in another country.
22 Officials of Commonwealth, State or Territory agencies
(1) For the purposes of this Act, an official of a Commonwealth, State or Territory agency covered by paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i) or (j) of the definition of Commonwealth, State or Territory agency in section 5 is:
(a) the head (however described) of the Commonwealth, State or Territory agency; or
(b) a member or acting member of the Commonwealth, State or Territory agency; or
(c) a member of the staff of the Commonwealth, State or Territory agency; or
(d) an officer or employee of the Commonwealth, State or Territory agency; or
(e) an officer, employee or other individual under the direction of the head (however described) of the Commonwealth, State or Territory agency; or
(f) an individual who, under the AML/CTF Rules, is taken to be an official of the Commonwealth, State or Territory agency for the purposes of this Act;
and, in the case of a Commonwealth Royal Commission or a State/Territory Royal Commission, includes the following:
(g) a legal practitioner (however described) appointed to assist the Commission;
(h) a person authorised under subsection (3).
(2) For the purposes of this Act, an official of a Commonwealth, State or Territory agency covered by paragraph (k) of the definition of Commonwealth, State or Territory agency in section 5 is:
(a) the person who holds the office or appointment; or
(b) an individual who, under the AML/CTF Rules, is taken to be an official in relation to the Commonwealth, State or Territory agency for the purposes of this Act.
Royal Commissions
(3) Either:
(a) the sole Commissioner of a Commonwealth Royal Commission or a State/Territory Royal Commission; or
(b) a member of a Commonwealth Royal Commission or a State/Territory Royal Commission;
may, in writing, authorise a person assisting the Commission for the purposes of paragraph (1)(h).
Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(4) An authorisation under subsection (3) is not a legislative instrument.
23 Continuity of partnerships
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
24 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
25 Extension to external Territories
This Act extends to every external Territory.
26 Extra‑territorial application
(1) Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.
Note: Subsection 6(6) is an example of a contrary intention.
(2) Section 14.1 of the Criminal Code does not apply to an offence against this Act.
Part 2—Identification procedures etc.
Division 1—Introduction
27 Simplified outline
The following is a simplified outline of this Part:
• A reporting entity must carry out a procedure to verify a customer’s identity before providing a designated service to the customer. However, in special cases, the procedure may be carried out after the provision of the designated service.
• Certain pre‑commencement customers are subject to modified identification procedures.
• Certain low‑risk services are subject to modified identification procedures.
• A reporting entity must carry out ongoing customer due diligence.
Division 2—Identification procedures for certain pre‑commencement customers
28 Identification procedures for certain pre‑commencement customers
Scope
(1) This section applies to the provision by a reporting entity of a designated service (the post‑commencement designated service) to a customer if, at a time before the commencement of this section, the reporting entity commenced to provide a designated service to the customer.
Exemption
(2) Sections 32 and 34 do not apply to the provision by the reporting entity of the post‑commencement designated service to the customer.
Note: For special rules about verification of identity etc., see section 29.
Interpretation
(3) For the purposes of this section, assume that Part 1 had been in force at all material times before the commencement of this section.
29 Verification of identity of pre‑commencement customer etc.
Scope
(1) This section applies to a reporting entity if:
(a) at a time before the commencement of this section, the reporting entity commenced to provide a designated service to a customer; and
(b) after the commencement of this section, a suspicious matter reporting obligation arises for the reporting entity in relation to the customer.
Note 1: For suspicious matter reporting obligation, see section 41.
Note 2: For tipping‑off offences, see section 123.
Requirement
(2) The reporting entity must:
(a) take such action as is specified in the AML/CTF Rules; and
(b) do so within the time limit allowed under the AML/CTF Rules.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Interpretation
(4) For the purposes of this section, assume that Part 1 had been in force at all material times before the commencement of this section.
Division 3—Identification procedures for certain low‑risk services
30 Identification procedures for certain low‑risk services
Scope
(1) This section applies to the provision by a reporting entity of a designated service to a customer if, under the AML/CTF Rules, the service is taken to be a low‑risk designated service.
(2) Sections 32 and 34 do not apply to the provision by the reporting entity of the designated service to the customer.
Note: For special rules about verification of identity etc., see section 31.
31 Verification of identity of low‑risk service customer etc.
Scope
(1) This section applies to a reporting entity if:
(a) at a particular time (the relevant time), the reporting entity commences to provide a designated service to a customer; and
(b) under the AML/CTF Rules, the service is taken to be a low‑risk designated service; and
(c) at the relevant time or a later time, a suspicious matter reporting obligation arises for the reporting entity in relation to the customer.
Note 1: For suspicious matter reporting obligation, see section 41.
Note 2: For tipping‑off offences, see section 123.
Requirement
(2) The reporting entity must:
(a) take such action as is specified in the AML/CTF Rules; and
(b) do so within the time limit allowed under the AML/CTF Rules.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Division 4—Identification procedures etc.
32 Carrying out applicable customer identification procedure before commencement of provision of designated service
(1) A reporting entity must not commence to provide a designated service to a customer unless the reporting entity has carried out the applicable customer identification procedure in respect of the customer.
Note 1: See the definition of commence to provide a designated service in section 5.
Note 2: See sections 37A and 38 (when applicable customer identification procedure taken to be carried out by a reporting entity).
Note 3: See section 41 for reports of suspicious matters when a reporting entity proposes to provide a designated service to a customer.
Exceptions
(2) Subsection (1) does not apply if:
(a) there are special circumstances that justify carrying out the applicable customer identification procedure in respect of the customer after the commencement of the provision of the designated service (see section 33); or
(b) the reporting entity has previously carried out the applicable customer identification procedure in respect of the customer; or
(c) section 28 or 30 applies to the provision of the designated service.
Civil penalty
(3) Subsection (1) is a civil penalty provision.
33 Special circumstances that justify carrying out the applicable customer identification procedure after the commencement of the provision of a designated service
For the purposes of this Act, if a reporting entity commences to provide a designated service to a customer, there are taken to be special circumstances that justify the carrying out of the applicable customer identification procedure in respect of the customer after the commencement of the provision of the service if, and only if:
(a) the service is specified in the AML/CTF Rules; and
(b) such other conditions (if any) as are set out in the AML/CTF Rules are satisfied.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
34 Carrying out the applicable customer identification procedure after the commencement of the provision of a designated service etc.
(1) If:
(a) a reporting entity has commenced to provide a designated service to a customer; and
(b) when the reporting entity commenced to provide the designated service to the customer, there were special circumstances that justified the carrying out of the applicable customer identification procedure in respect of the customer after the commencement of the provision of the service (see section 33); and
(c) the reporting entity has not previously carried out the applicable customer identification procedure in respect of the customer; and
(d) the reporting entity has not carried out the applicable customer identification procedure in respect of the customer within whichever of the following periods is applicable:
(i) if the designated service is specified in the AML/CTF Rules—the period ascertained in accordance with the AML/CTF Rules; or
(ii) in any other case—the period of 5 business days after the day on which the reporting entity commenced to provide the service; and
(e) neither section 28 nor section 30 applies to the provision of the service;
then, after the end of the period referred to in whichever of subparagraphs (d)(i) or (ii) is applicable, the reporting entity must not continue to provide, and must not commence to provide, any designated services to the customer until the reporting entity carries out the applicable customer identification procedure in respect of the customer.
Note 1: See also the definition of commence to provide a designated service in section 5.
Note 2: See also sections 37A and 38 (when applicable customer identification procedure deemed to be carried out by a reporting entity).
(2) Subsection (1) does not apply if:
(a) under the AML/CTF Rules, the reporting entity is not required to carry out the applicable customer identification procedure in respect of the customer; and
(b) the reporting entity takes such action as is specified in the AML/CTF Rules.
Civil penalty
(3) Subsection (1) is a civil penalty provision.
Periods
(4) A period ascertained in accordance with AML/CTF Rules made for the purposes of subparagraph (1)(d)(i):
(a) must commence at the time when the reporting entity commences to provide the designated service concerned; and
(b) may be expressed to end on the occurrence of a specified event.
(5) Paragraph (4)(b) does not limit subparagraph (1)(d)(i).
Division 5—Verification of identity etc.
35 Verification of identity of customer etc.
Scope
(1) This section applies to a reporting entity if:
(a) at a particular time, the reporting entity has carried out, or has purported to carry out, the applicable customer identification procedure in respect of a particular customer to whom the reporting entity provided, or proposed to provide, a designated service; and
(b) at a later time, any of the following subparagraphs applies:
(i) an event prescribed by the AML/CTF Rules happens;
(ii) a circumstance specified in the AML/CTF Rules comes into existence;
(iii) a period ascertained in accordance with the AML/CTF Rules ends.
Note: See also sections 37A and 38 (when applicable customer identification procedure deemed to be carried out by a reporting entity).
Requirement
(2) The reporting entity must:
(a) take such action as is specified in the AML/CTF Rules; and
(b) do so within the time limit allowed under the AML/CTF Rules.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Division 5A—Use and disclosure of personal information for the purposes of verifying an individual’s identity
35A Reporting entities may disclose certain personal information to credit reporting bodies for identity verification purposes
(1) A reporting entity may, to assist in verifying the identity of an individual for the purposes of this Act, the regulations or the AML/CTF Rules:
(a) disclose any or all of the following personal information to a credit reporting body for the purposes of making a request referred to in paragraph (b):
(i) the individual’s name;
(ii) the individual’s residential address;
(iii) the individual’s date of birth; and
(b) request the credit reporting body to provide an assessment of whether the personal information so disclosed matches (in whole or part) personal information held by the credit reporting body.
(2) A reporting entity must not make a verification request in relation to an individual unless, before making the request:
(a) the individual was given information about:
(i) the reasons for making the request; and
(ii) the personal information about the individual that may be disclosed to the credit reporting body; and
(iii) the fact that the reporting entity may request the credit reporting body to provide an assessment of whether the personal information matches (in whole or part) personal information held by the credit reporting body; and
(iv) the fact that the credit reporting body may prepare and provide to the reporting entity such an assessment; and
(v) the fact that the credit reporting body may use the personal information about the individual, and personal information held by the body that is the names, residential addresses and dates of birth of other individuals, for the purpose of preparing such an assessment; and
(b) the individual expressly agreed to the making of the request and the disclosure of the personal information; and
(c) an alternative means of verifying the identity of the individual was made available to the individual.
(3) A disclosure of personal information under paragraph (1)(a) is taken to be authorised by this Act for the purposes of paragraph 6.2(b) of Australian Privacy Principle 6.
35B Credit reporting bodies may use and disclose certain personal information for identity verification purposes
(1) A credit reporting body that receives a verification request from a reporting entity in relation to an individual may:
(a) prepare and provide to the reporting entity an assessment in accordance with this section of whether any or all of the following personal information matches (in whole or part) personal information held by the credit reporting body:
(i) the individual’s name;
(ii) the individual’s residential address;
(iii) the individual’s date of birth; and
(b) use the personal information about the individual, and personal information held by the credit reporting body that is the names, residential addresses and dates of birth of other individuals, for the purpose of preparing the assessment.
(2) An assessment provided under subsection (1) to a reporting entity:
(a) must be an overall assessment of the extent of the match between the personal information disclosed by the reporting entity and personal information held by the credit reporting body; and
(b) must not include separate assessments of the match between particular categories of that personal information.
(3) To the extent that providing an assessment in relation to an individual involves a disclosure of personal information held by the credit reporting body to a person, body or agency other than the individual, the disclosure is taken to be authorised by this Act for the purposes of paragraph 20E(3)(e) of the Privacy Act 1988.
35C Reporting entities to notify inability to verify identity
(1) This section applies if:
(a) a reporting entity makes a verification request in relation to an individual; and
(b) an assessment is provided in relation to the individual; and
(c) the reporting entity is unable to verify the identity of the individual, having regard to the assessment.
(2) The reporting entity must give a written notice to the individual:
(a) stating that the reporting entity is unable to verify the identity of the individual having regard to the assessment; and
(b) specifying the name of the credit reporting body that provided the assessment; and
(c) offering the individual an alternative means of verifying the identity of the individual.
35D Verification information not to be collected or held by a credit reporting body
Subject to section 35E, a credit reporting body must not collect or hold personal information about an individual that relates to a verification request or an assessment in relation to the individual.
35E Retention of verification information—credit reporting bodies
(1) A credit reporting body that receives a verification request in relation to an individual must retain the following information for 7 years after the request was received:
(a) the name of the reporting entity that made the request;
(b) the date on which the request was made;
(c) the personal information about the individual that was provided by the reporting entity to the credit reporting body;
(d) the date on which the credit reporting body provided an assessment (if any) in relation to the individual;
(e) such other information about the verification request as is specified in the AML/CTF Rules.
(2) A credit reporting body that retains information under subsection (1) must delete the information at the end of the 7 year period referred to in that subsection.
Civil penalty
(3) Subsections (1) and (2) are civil penalty provisions.
35F Retention of verification information—reporting entities
(1) A reporting entity that makes a verification request in relation to an individual must make a record of the following;
(a) the name of the credit reporting body to which the request was made;
(b) the personal information about the individual that was provided by the reporting entity to the credit reporting body;
(c) the assessment (if any) provided by the credit reporting body in relation to the individual;
(d) such other information about the verification request as is specified in the AML/CTF Rules.
(2) The reporting entity must retain the record, or a copy of the record, until the end of the first 7 year period:
(a) that began at a time after the verification request was made; and
(b) throughout the whole of which the reporting entity did not provide any designated services to the individual.
(3) A reporting entity that retains a record, or a copy of a record, under subsection (2) must delete the record at the end of the 7 year period referred to in that subsection.
Civil penalty
(4) Subsections (1), (2) and (3) are civil penalty provisions.
Designated business groups
(5) If:
(a) a reporting entity is part of a designated business group; and
(b) such other conditions as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2) or (3) may be discharged by any other member of the group.
35G Access to verification information
A credit reporting body or a reporting entity in possession or control of personal information, or other information of a kind referred to in subsection 35E(1), that relates to a verification request or an assessment in relation to an individual must take reasonable steps to ensure that the individual can obtain access to the information.
35H Unauthorised access to verification information—offence
(1) A person commits an offence if:
(a) the person obtains access to information; and
(b) the information is personal information that relates to a verification request or an assessment in relation to an individual.
Penalty: 300 penalty units.
(2) Subsection (1) does not apply if the access is obtained in accordance with, or as otherwise authorised by, this Act or any other law.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
35J Obtaining access to verification information by false pretences—offence
A person commits an offence if:
(a) the person obtains access to information; and
(b) the information is personal information that relates to a verification request or an assessment in relation to an individual; and
(c) the information is obtained by false pretence.
Penalty: 300 penalty units.
35K Unauthorised use or disclosure of verification information—offence
(1) A person commits an offence if:
(a) the person uses or discloses information; and
(b) the information is personal information that relates to a verification request or an assessment in relation to an individual.
Penalty: 300 penalty units.
(2) Subsection (1) does not apply if the use or disclosure is in accordance with, or as otherwise authorised by, this Act or any other law.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
35L Breach of requirement is an interference with privacy
A breach of a requirement of this Division in relation to an individual constitutes an act or practice involving an interference with the privacy of the individual for the purposes of section 13 of the Privacy Act 1988.
Note: The act or practice may be the subject of a complaint under section 36 of that Act.
Division 6—Ongoing customer due diligence
36 Ongoing customer due diligence
(1) A reporting entity must:
(a) monitor the reporting entity’s customers in relation to the provision by the reporting entity of designated services at or through a permanent establishment of the reporting entity in Australia, with a view to:
(i) identifying; and
(ii) mitigating; and
(iii) managing;
the risk the reporting entity may reasonably face that the provision by the reporting entity of a designated service at or through a permanent establishment of the reporting entity in Australia might (whether inadvertently or otherwise) involve or facilitate:
(iv) money laundering; or
(v) financing of terrorism; and
(b) do so in accordance with the AML/CTF Rules.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
Exemption
(3) This section does not apply to a designated service covered by item 54 of table 1 in section 6.
Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
Designated business groups
(4) If a reporting entity is a member of a designated business group, the obligation imposed on the reporting entity by subsection (1) may be discharged by any other member of the group.
Registered remittance affiliates
(5) If an obligation is imposed by subsection (1) on a reporting entity in its capacity as a registered remittance affiliate of a registered remittance network provider, the obligation may be discharged by the registered remittance network provider.
Division 7—General provisions
37 Applicable customer identification procedures may be carried out by an agent of a reporting entity
(1) The principles of agency apply in relation to the carrying out by a reporting entity of an applicable customer identification procedure or an identity verification procedure.
Note: The reporting entity (and not its agent) will be liable to civil penalties for contraventions of this Part for providing designated services to its customers without carrying out the applicable customer identification procedures in respect of its customers.
(2) For example, a reporting entity may authorise another person to be its agent for the purposes of carrying out applicable customer identification procedures or identity verification procedures on the reporting entity’s behalf.
(3) To avoid doubt, if a reporting entity provides a designated service to a customer through an agent of the reporting entity, the reporting entity may authorise:
(a) that agent; or
(b) any other person;
to be its agent for the purposes of carrying out the applicable customer identification procedure or an identity verification procedure in respect of the customer on the reporting entity’s behalf.
(4) This section does not otherwise limit the operation of the principles of agency for the purposes of this Act.
37A Reliance on applicable customer identification procedures or other procedures—agreements or arrangements
(1) This section applies if:
(a) a reporting entity (the first entity) enters into a written agreement or arrangement with another person relating to the first entity’s reliance on applicable customer identification procedures, or other procedures of a kind prescribed by the AML/CTF Rules, carried out by the other person; and
(b) at the time of entering into the agreement or arrangement, the first entity had reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules were met.
(2) If:
(a) the agreement or arrangement is in force; and
(b) the first entity has complied with section 37B in relation to the agreement or arrangement; and
(c) the first entity is providing, or proposes to provide, a designated service to a customer; and
(d) under the agreement or arrangement, the first entity has obtained information about the identity of that customer from the other party to the agreement or arrangement; and
(e) the requirements prescribed by the AML/CTF Rules are satisfied;
this Act (other than Part 10) has effect as if the first entity had carried out the applicable customer identification procedure in respect of that customer and that designated service.
(3) If:
(a) the agreement or arrangement is in force; and
(b) after completing an assessment under section 37B in relation to the agreement or arrangement, the first entity does not have reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules for the purposes of paragraph (1)(b) is being met;
then subsection (2) does not apply in relation to the first entity and the agreement or arrangement in connection with the carrying out of procedures covered by paragraph (1)(a) after the completion of that assessment.
(4) Subsection (3) ceases to apply once the first entity has reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules for the purposes of paragraph (1)(b) is being met.
37B Regular assessments of agreement or arrangement covered by section 37A
(1) If a reporting entity enters into an agreement or arrangement of a kind referred to in subsection 37A(1), then, while the agreement or arrangement is in force, the reporting entity must:
(a) carry out assessments in accordance with the AML/CTF Rules; and
(b) carry out those assessments at the times worked out in accordance with the AML/CTF Rules; and
(c) prepare a written record of each assessment within 10 business days after the day of completing the assessment.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
38 Reliance on applicable customer identification procedures or other procedures—other circumstances
If:
(a) a reporting entity (the first entity) is providing, or proposes to provide, a designated service to a customer; and
(b) another person has carried out an applicable customer identification procedure, or another procedure of a kind prescribed by the AML/CTF Rules, in respect of that customer; and
(c) the first entity has obtained, from the other person, information about the identity of that customer that was obtained by the other person in the course of carrying out that procedure; and
(d) the first entity has reasonable grounds to believe that it is appropriate to rely on that procedure in relation to that designated service having regard to the risk the first entity may reasonably face that the provision of that designated service might (whether inadvertently or otherwise) involve or facilitate money laundering or financing of terrorism; and
(e) the requirements prescribed by the AML/CTF Rules are satisfied;
this Act (other than Part 10) has effect as if the first entity had carried out the applicable customer identification procedure in respect of that customer and that designated service.
39 General exemptions
(1) This Part does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(2) The AML/CTF Rules may provide that a specified provision of this Part does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(3) This Part does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(4) The AML/CTF Rules may provide that a specified provision of this Part does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(5) This Part does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the entity in a foreign country.
(6) This Part (other than Division 6) does not apply to a designated service covered by item 40, 42 or 44 of table 1 in section 6.
(7) This Part does not apply to a designated service covered by item 54 of table 1 in section 6 if the service relates to arrangements for a person to receive a designated service covered by item 40, 42 or 44 of that table.
Note 1: Item 40 of table 1 in section 6 deals with accepting payment of the purchase price for a new pension or annuity.
Note 2: Item 42 of table 1 in section 6 deals with accepting a superannuation contribution, roll‑over or transfer.
Note 3: Item 44 of table 1 in section 6 deals with accepting an RSA contribution, roll‑over or transfer.
Note 4: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
Part 3—Reporting obligations
Division 1—Introduction
40 Simplified outline
The following is a simplified outline of this Part:
• A reporting entity must give the AUSTRAC CEO reports about suspicious matters.
• If a reporting entity provides a designated service that involves a threshold transaction, the reporting entity must give the AUSTRAC CEO a report about the transaction.
• If a person sends or receives an international funds transfer instruction, the person must give the AUSTRAC CEO a report about the instruction.
• A reporting entity may be required to give AML/CTF compliance reports to the AUSTRAC CEO.
Division 2—Suspicious matters
41 Reports of suspicious matters
Suspicious matter reporting obligation
(1) A suspicious matter reporting obligation arises for a reporting entity in relation to a person (the first person) if, at a particular time (the relevant time):
(a) the reporting entity commences to provide, or proposes to provide, a designated service to the first person; or
(b) both:
(i) the first person requests the reporting entity to provide a designated service to the first person; and
(ii) the designated service is of a kind ordinarily provided by the reporting entity; or
(c) both:
(i) the first person inquires of the reporting entity whether the reporting entity would be willing or prepared to provide a designated service to the first person; and
(ii) the designated service is of a kind ordinarily provided by the reporting entity;
and any of the following conditions is satisfied:
(d) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that the first person is not the person the first person claims to be;
(e) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that an agent of the first person who deals with the reporting entity in relation to the provision or prospective provision of the designated service is not the person the agent claims to be;
(f) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that information that the reporting entity has concerning the provision, or prospective provision, of the service:
(i) may be relevant to investigation of, or prosecution of a person for, an evasion, or an attempted evasion, of a taxation law; or
(ii) may be relevant to investigation of, or prosecution of a person for, an evasion, or an attempted evasion, of a law of a State or Territory that deals with taxation; or
(iii) may be relevant to investigation of, or prosecution of a person for, an offence against a law of the Commonwealth or of a State or Territory; or
(iv) may be of assistance in the enforcement of the Proceeds of Crime Act 2002 or regulations under that Act; or
(v) may be of assistance in the enforcement of a law of a State or Territory that corresponds to the Proceeds of Crime Act 2002 or regulations under that Act;
(g) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that the provision, or prospective provision, of the service is preparatory to the commission of an offence covered by paragraph (a), (b) or (c) of the definition of financing of terrorism in section 5;
(h) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that information that the reporting entity has concerning the provision, or prospective provision, of the service may be relevant to the investigation of, or prosecution of a person for, an offence covered by paragraph (a), (b) or (c) of the definition of financing of terrorism in section 5;
(i) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that the provision, or prospective provision, of the service is preparatory to the commission of an offence covered by paragraph (a) or (b) of the definition of money laundering in section 5;
(j) at the relevant time or a later time, the reporting entity suspects on reasonable grounds that information that the reporting entity has concerning the provision, or prospective provision, of the service may be relevant to the investigation of, or prosecution of a person for, an offence covered by paragraph (a) or (b) of the definition of money laundering in section 5.
Report
(2) If a suspicious matter reporting obligation arises for a reporting entity in relation to a person, the reporting entity must give the AUSTRAC CEO a report about the matter within:
(a) if paragraph (1)(d), (e), (f), (i) or (j) applies—3 business days after the day on which the reporting entity forms the relevant suspicion; or
(b) if paragraph (1)(g) or (h) applies—24 hours after the time when the reporting entity forms the relevant suspicion.
(3) A report under subsection (2) must:
(a) be in the approved form; and
(b) contain such information relating to the matter as is specified in the AML/CTF Rules; and
(c) contain a statement of the grounds on which the reporting entity holds the relevant suspicion.
Note 1: For additional rules about reports, see section 244.
Note 2: Section 49 deals with the provision of further information, and the production of documents, by the reporting entity.
Civil penalty
(4) Subsection (2) is a civil penalty provision.
Reasonable grounds for suspicion
(5) The AML/CTF Rules may specify matters that are to be taken into account in determining whether there are reasonable grounds for a reporting entity to form a suspicion of a kind mentioned in paragraph (1)(d), (e), (f), (g), (h), (i) or (j).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
42 Exemptions
(1) This Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(2) The AML/CTF Rules may provide that a specified provision of this Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(3) This Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(4) The AML/CTF Rules may provide that a specified provision of this Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(5) This Division does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the entity in a foreign country, other than a service covered by item 32A of table 1 in section 6.
Division 3—Threshold transactions
43 Reports of threshold transactions
Scope
(1) This section applies to a reporting entity if:
(a) the reporting entity commences to provide, or provides, a designated service to a customer; and
(b) the provision of the service involves a threshold transaction.
Report
(2) The reporting entity must, within 10 business days after the day on which the transaction takes place, give the AUSTRAC CEO a report of the transaction.
(3) A report under subsection (2) must:
(a) be in the approved form; and
(b) contain such information relating to the transaction as is specified in the AML/CTF Rules.
Note 1: For additional rules about reports, see section 244.
Note 2: Section 49 deals with the provision of further information, and the production of documents, by the reporting entity.
Civil penalty
(4) Subsection (2) is a civil penalty provision.
44 Exemptions
(1) This Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(2) The AML/CTF Rules may provide that a specified provision of this Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(3) This Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(4) The AML/CTF Rules may provide that a specified provision of this Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(5) This Division does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the entity in a foreign country, other than a service covered by item 32A of table 1 in section 6.
(6) This Division does not apply to a designated service covered by item 54 of table 1 in section 6.
Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
Division 4—International funds transfer instructions
45 Reports of international funds transfer instructions
Scope
(1) This section applies to a person if:
(a) the person 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) if the regulations provide that this paragraph is applicable—the total amount or value that is to be, or is, transferred is not less than the amount specified in the regulations; and
(c) such other conditions (if any) as are set out in the AML/CTF Rules are satisfied.
Note: International funds transfer instruction is defined by section 46.
Report
(2) The person must, within 10 business days after the day on which the instruction was sent or received by the person, give the AUSTRAC CEO a report about the instruction.
(3) A report under subsection (2) must:
(a) be in the approved form; and
(b) contain such information relating to the matter as is specified in the AML/CTF Rules.
Note: For additional rules about reports, see section 244.
Civil penalty
(4) Subsection (2) is a civil penalty provision.
Funds transfer chain etc.
(5) For the purposes of this section, it is immaterial whether the person sent or received the international funds transfer instruction in the capacity of interposed institution in a funds transfer chain.
Note: For funds transfer chain, see subsection 64(2).
Exemptions
(6) This section does not apply to an international funds transfer instruction that is of a kind specified in the AML/CTF Rules.
(7) This section does not apply to an international funds transfer instruction that is sent or received in circumstances specified in the AML/CTF Rules.
46 International funds transfer instruction
For the purposes of this Act, the following table defines international funds transfer instruction:
International funds transfer instruction |
Item | Type of instruction | The instruction is an international funds transfer instruction if ... |
1 | electronic funds transfer instruction | (a) the instruction is accepted at or through a permanent establishment of the ordering institution in Australia; and (b) the transferred money is to be, or is, made available to the payee at or through a permanent establishment of the beneficiary institution in a foreign country |
2 | electronic funds transfer instruction | (a) the instruction is accepted at or through a permanent establishment of the ordering institution in a foreign country; and (b) the transferred money is to be, or is, made available to the payee at or through a permanent establishment of the beneficiary institution in Australia |
3 | instruction given by a transferor entity for the transfer of money or property under a designated remittance arrangement | (a) the instruction is accepted at or through a permanent establishment of a non‑financier in Australia; and (b) the money or property is to be, or is, made available to the ultimate transferee entity at or through a permanent establishment of a person in a foreign country |
4 | instruction given by a transferor entity for the transfer of money or property under a designated remittance arrangement | (a) the instruction is accepted at or through a permanent establishment of a person in a foreign country; and (b) the money or property is to be, or is, made available to the ultimate transferee entity at or through a permanent establishment of a non‑financier in Australia |
Division 5—AML/CTF compliance reports
47 AML/CTF compliance reports
Scope
(1) This section applies if the AML/CTF Rules provide that, for the purposes of this section:
(a) a specified period is a reporting period; and
(b) a specified period beginning at the end of a reporting period is the lodgment period for that reporting period.
A period specified under paragraph (a) or (b) may be a recurring period.
Report
(2) A reporting entity must, within the lodgment period for a reporting period, give the AUSTRAC CEO a report relating to the reporting entity’s compliance with this Act, the regulations and the AML/CTF Rules during the reporting period.
(3) A report under subsection (2) must:
(a) be in the approved form; and
(b) contain such information as is required by the approved form.
Note: For additional rules about reports, see section 244.
Civil penalty
(4) Subsection (2) is a civil penalty provision.
Exemption
(5) This section does not apply to a reporting entity if all of the designated services provided by the reporting entity are covered by item 54 of table 1 in section 6.
Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
Designated business groups
(6) If a reporting entity is a member of a designated business group, the obligation imposed on the reporting entity by subsection (2) may be discharged by any other member of the group.
(7) If 2 or more reporting entities are members of a designated business group, reports under subsection (2) relating to those reporting entities may be set out in the same document.
Different reporting entities
(8) AML/CTF Rules made for the purposes of this section may make different provision with respect to different reporting entities. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
48 Self‑incrimination
(1) A person is not excused from giving a report under section 47 on the ground that the report might tend to incriminate the person or expose the person to a penalty.
(2) However:
(a) the report given; or
(b) giving the report;
is not admissible in evidence against the person:
(c) in civil proceedings other than:
(i) proceedings under section 175 for a contravention of subsection 47(2); or
(ii) proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or
(d) in criminal proceedings other than:
(i) proceedings for an offence against section 136 that relates to section 47; or
(ii) proceedings for an offence against section 137.1 of the Criminal Code that relates to section 47 of this Act.
Division 6—General provisions
49 Further information to be given to the AUSTRAC CEO etc.
(1) If a reporting entity communicates information to the AUSTRAC CEO under section 41, 43 or 45, then:
(a) the AUSTRAC CEO; or
(b) the Commissioner of the Australian Federal Police; or
(c) the Chief Executive Officer of the Australian Crime Commission; or
(d) the Commissioner of Taxation; or
(e) the Comptroller‑General of Customs; or
(f) the National Anti‑Corruption Commissioner; or
(g) an investigating officer who is carrying out an investigation arising from, or relating to the matters mentioned in, the information;
may, by written notice given to the reporting entity or any other person, require the reporting entity or other person:
(h) to give such further information as is specified in the notice, within the period and in the manner specified in the notice, to the extent to which the reporting entity or other person has that information; or
(i) to produce, within the period and in the manner specified in the notice, such documents as are:
(i) specified in the notice; and
(ii) relevant to the matter to which the communication under section 41, 43 or 45 relates; and
(iii) in the possession or control of the reporting entity or other person.
(1A) A person (the issuer) must not give a notice under subsection (1) to another person (the recipient) unless the issuer reasonably believes that the recipient has knowledge of the information, or possession or control of the document, that is specified in the notice.
(1B) The period specified in the notice for giving the information or document must be at least 14 days after the notice is given unless:
(a) the recipient is the reporting entity who communicated information to the AUSTRAC CEO under section 41, 43 or 45; or
(b) both of the following apply:
(i) the issuer considers that specifying a shorter period is necessary;
(ii) the shorter period specified is reasonable in the circumstances.
Compliance
(2) A person must comply with a notice under subsection (1).
Civil penalty
(3) Subsection (2) is a civil penalty provision.
49A AML/CTF Rules may make provision in relation to reports by registered remittance affiliates
(1) The AML/CTF Rules may make provision for and in relation to reports required by this Part to be given by a reporting entity that is a registered remittance affiliate of a registered remittance network provider.
(2) Without limiting subsection (1), the AML/CTF Rules may provide:
(a) that an obligation imposed by this Part upon a registered remittance affiliate of a registered remittance network provider to provide a report is taken instead, or in addition, to be an obligation imposed upon the registered remittance network provider; and
(b) that an obligation imposed by this Part on a registered remittance affiliate of a registered remittance network provider may be discharged by the registered remittance network provider; and
(c) that a report required to be provided as mentioned in paragraph (a) must, or may, be given by the registered remittance network provider in the manner specified in the AML/CTF Rules.
50 Request to obtain information about the identity of holders of foreign credit cards and foreign debit cards
Scope
(1) This section applies to a reporting entity if:
(a) under section 49, the AUSTRAC CEO or the Commissioner of Taxation has required the reporting entity to give information about the identity of:
(i) the holder of, or a signatory to, a particular credit card account; or
(ii) the holder of, or a signatory to, a particular debit card account; and
(b) the account relates to a credit card, or a debit card, that was issued by a person (the card issuer) outside Australia; and
(c) the reporting entity does not have that information.
Direction to reporting entity
(2) The AUSTRAC CEO or the Commissioner of Taxation may, by written notice given to the reporting entity, direct the reporting entity to give the card issuer a request, in a form specified in the notice, to give the information to the reporting entity.
(3) The reporting entity must comply with the direction within 10 business days after the day on which the direction is given.
Report by reporting entity
(4) If the reporting entity gives the card issuer a request under subsection (2) that was directed by the AUSTRAC CEO, the reporting entity must, within:
(a) 20 business days after the day on which the subsection (2) direction was given; or
(b) if the AUSTRAC CEO, by written notice given to the reporting entity, allows a longer period—that longer period;
give the AUSTRAC CEO a report about the card issuer’s response, or lack of response, to the request.
(5) If the reporting entity gives the card issuer a request under subsection (2) that was directed by the Commissioner of Taxation, the reporting entity must, within:
(a) 20 business days after the day on which the subsection (2) direction was given; or
(b) if the Commissioner of Taxation, by written notice given to the reporting entity, allows a longer period—that longer period;
give the Commissioner of Taxation a report about the card issuer’s response, or lack of response, to the request.
(6) A report under subsection (4) or (5) must:
(a) be in the approved form; and
(b) in a case where the card issuer has given the information to the reporting entity—contain the information; and
(c) contain such other information (if any) relating to the matter as is required by the approved form.
Note: For additional rules about reports given to the AUSTRAC CEO, see section 244.
Civil penalty
(7) Subsections (3), (4) and (5) are civil penalty provisions.
50A Secrecy—information obtained under section 49
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted investigating official; and
(b) the person has obtained information under section 49 or this section; and
(c) the person makes a record of, discloses or otherwise uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exception
(2) Subsection (1) does not apply if:
(a) the making of the record, disclosure or use is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers as an entrusted investigating official; or
(b) the disclosure is to an AUSTRAC entrusted person or to another entrusted investigating official for the purposes of, or in connection with, the performance or exercise of the AUSTRAC entrusted person’s or other official’s functions, duties or powers.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Courts or tribunals
(3) Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988, a person who is, or has been, an entrusted investigating official is not to be required:
(a) to produce a document containing information obtained by the person under section 49 or this section to a court or tribunal; or
(b) to disclose information obtained by the person under section 49 or this section to a court or tribunal.
51 Division 400 and Chapter 5 of the Criminal Code
If a person, or an officer, employee or agent of a person, communicates or gives information under section 41, 43, 45 or 49, the person, officer, employee or agent is taken, for the purposes of Division 400 and Chapter 5 of the Criminal Code, not to have been in possession of that information at any time.
Part 3A—Reporting Entities Roll
51A Simplified outline
The following is a simplified outline of this Part:
• Providers of designated services must be entered on the Reporting Entities Roll.
51B Reporting entities must enrol
(1) If:
(a) a person commences to provide a designated service; and
(b) the person’s name is not entered on the Reporting Entities Roll;
the person must, no later than 28 days after the day on which the person commences to provide the designated service, apply under subsection 51E(1) for enrolment as a reporting entity.
(2) Subsection (1) does not apply if the person:
(a) has applied under subsection 51E(1) in relation to the provision of another designated service; and
(b) has not since requested under section 51G that the AUSTRAC CEO remove the person’s name and enrolment details from the Reporting Entities Roll.
(2A) Subsection (1) does not apply if, when the person commences to provide the designated service, the person is already required under that subsection to apply for enrolment because of the provision of another designated service.
Continuing obligation to enrol
(2B) If:
(a) a person is required under subsection (1) of this section to apply for enrolment by a particular time; and
(b) the person does not apply for enrolment by that time;
then the obligation to apply for enrolment continues until:
(c) the person applies for enrolment; or
(d) the person ceases to be a reporting entity;
whichever occurs first.
Multiple contraventions
(2C) A person who contravenes subsection (1) by failing to apply for enrolment as a reporting entity by a particular time (the enrolment deadline) is taken to commit a separate contravention of that subsection on each day that occurs:
(a) on or after the day on which the enrolment deadline occurs; and
(b) on or before the day on which the person’s obligation to apply for enrolment ends (see subsection (2B)).
(2D) To avoid doubt, a person does not contravene subsection (1) more than once on any particular day, even if the person commences to provide a designated service more than once on a particular day or during a particular period.
Civil penalty
(3) Subsection (1) is a civil penalty provision.
51C Reporting Entities Roll
(1) The AUSTRAC CEO must maintain a roll for the purposes of this Part, to be known as the Reporting Entities Roll.
(2) The AUSTRAC CEO may maintain the Reporting Entities Roll by electronic means.
(3) The Reporting Entities Roll is not a legislative instrument.
(4) The AML/CTF Rules may make provision for and in relation to either or both of the following:
(a) the correction of entries in the Reporting Entities Roll;
(b) any other matter relating to the administration or operation of the Reporting Entities Roll, including the removal of names and enrolment details from the Reporting Entities Roll.
51D Enrolment
If a person applies to the AUSTRAC CEO under subsection 51E(1) and the person’s name is not already entered on the Reporting Entities Roll, the AUSTRAC CEO must enter on the Reporting Entities Roll:
(a) the person’s name; and
(b) the person’s enrolment details.
51E Applications for enrolment
(1) A person may apply in writing to the AUSTRAC CEO for enrolment as a reporting entity.
(2) The application must:
(a) be in accordance with the approved form, or in a manner specified in the AML/CTF Rules; and
(b) contain the information required by the AML/CTF Rules.
51F Enrolled persons to advise of change in enrolment details
(1) A person who is enrolled under this Part must advise the AUSTRAC CEO, in accordance with subsection (2), of any change in the person’s enrolment details that is of a kind specified in the AML/CTF Rules.
(2) A person who is required by subsection (1) to advise the AUSTRAC CEO of a change in enrolment details must do so:
(a) within 14 days of the change arising; and
(b) in accordance with the approved form, or in a manner specified in the AML/CTF Rules.
Civil penalty
(3) Subsection (1) is a civil penalty provision.
51G Removal of entries from the Reporting Entities Roll
(1) A person may, in writing, request the AUSTRAC CEO to remove the person’s name and enrolment details from the Reporting Entities Roll.
(2) The request must:
(a) be in the approved form; and
(b) contain the information required by the AML/CTF Rules.
(3) The AUSTRAC CEO must consider the request and remove the person’s name and enrolment details from the Reporting Entities Roll if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:
(a) whether the person has ceased to provide designated services; and
(b) the likelihood of the person providing a designated service in the financial year beginning after the request is given; and
(c) any outstanding obligations the person has (if any) to provide a report under any of the following provisions:
(i) section 43 (threshold transaction reports);
(ii) section 45 (international funds transfer instruction reports);
(iii) section 47 (AML/CTF compliance reports).
Part 4—Reports about cross‑border movements of monetary instruments
Division 1—Simplified outline of this Part
52 Simplified outline of this Part
• Cross‑border movements of monetary instruments must be reported to the AUSTRAC CEO, a customs officer or a police officer if the total value moved is $10,000 or more.
Division 2—Reports about monetary instruments
53 Reports about movements of monetary instruments into or out of Australia
Offence
(1) A person commits an offence if:
(a) either:
(i) the person moves one or more monetary instruments into Australia; or
(ii) the person moves one or more monetary instruments out of Australia; and
(b) the sum of the monetary instrument amounts is $10,000 or more; and
(c) a report in respect of the movement is not given in accordance with this section.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Civil penalty
(2) A person must not:
(a) move one or more monetary instruments into Australia; or
(b) move one or more monetary instruments out of Australia;
if:
(c) the sum of the monetary instrument amounts is $10,000 or more; and
(d) a report in respect of the movement is not given in accordance with this section.
(3) Subsection (2) is a civil penalty provision.
Commercial carriers
(4) Subsections (1) and (2) do not apply to a person if:
(a) the person is a commercial passenger carrier; and
(b) the monetary instruments are in the possession of any of the carrier’s passengers.
(5) Subsections (1) and (2) do not apply to a person if:
(a) the person is a commercial goods carrier; and
(b) the monetary instruments are carried on behalf of another person.
(6) A person who wishes to rely on subsection (4) or (5) bears an evidential burden in relation to that matter.
Requirements for reports under this section
(7) A report under this section must:
(a) be in the approved form; and
(b) contain the information specified in the AML/CTF Rules; and
(c) be given to the AUSTRAC CEO, a customs officer or a police officer; and
(d) comply with the applicable timing rule in the AML/CTF Rules.
Note 1: For additional rules about reports, see section 244.
Note 2: Division 8 of Part 15 sets out special enforcement powers relating to this section.
Note 3: See also section 18 (translation of foreign currency to Australian currency).
54 Reports about receipts of monetary instruments moved into Australia
Offence
(1) A person commits an offence if:
(a) the person receives one or more monetary instruments moved into Australia to the person; and
(b) at the time of the receipt, the sum of the monetary instrument amounts is $10,000 or more; and
(c) a report in respect of the receipt is not given in accordance with this section.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Civil penalty
(2) A person must not receive one or more monetary instruments moved into Australia to the person if:
(a) at the time of the receipt, the sum of the monetary instrument amounts is $10,000 or more; and
(b) a report in respect of the receipt is not given in accordance with this section.
(3) Subsection (2) is a civil penalty provision.
Requirements for reports under this section
(4) A report under this section must:
(a) be in the approved form; and
(b) contain the information specified in the AML/CTF Rules; and
(c) be given to the AUSTRAC CEO, a customs officer or a police officer; and
(d) be given before the end of 5 business days beginning on the day of the receipt.
Note 1: For additional rules about reports, see section 244.
Note 2: See also section 18 (translation of foreign currency to Australian currency).
55 Movements of monetary instruments into Australia
For the purposes of this Act, a person moves a monetary instrument into Australia if the person brings or sends the instrument into Australia.
56 Movements of monetary instruments out of Australia
(1) For the purposes of this Act, a person moves a monetary instrument out of Australia if the person takes or sends the instrument out of Australia.
(2) For the purposes of this Act, if:
(a) a person arranges to leave Australia on an aircraft or ship; and
(b) either:
(i) the person has a monetary instrument in the person’s baggage, and the person enters a place at which customs officers examine passports; or
(ii) the person takes a monetary instrument into a place at which customs officers examine passports;
the person is taken to have moved the instrument out of Australia when the person leaves that place.
57 Obligations of customs officers and police officers
If a customs officer or police officer receives a report under section 53 or 54, the officer must forward it to the AUSTRAC CEO before the end of 5 business days beginning on the day of the receipt.
Division 4—Information about reporting obligations
61 Power to affix notices about reporting obligations
Scope
(1) This section applies to a written notice:
(a) that relates to reporting obligations under this Part; and
(b) the form and contents of which are specified in the AML/CTF Rules.
Power to affix notices
(2) A customs officer may affix, or arrange for another person to affix, one or more notices:
(a) on any part of an aircraft or ship; or
(b) in any other place specified in the AML/CTF Rules.
Offence
(3) A person commits an offence if:
(a) a notice has been affixed under this section; and
(b) the person engages in conduct; and
(c) the person’s conduct results in:
(i) interference with the notice; or
(ii) the removal of the notice; or
(iii) defacement of the notice.
Penalty: 50 penalty units.
(4) Subsection (3) does not apply if the person’s conduct is authorised by the AUSTRAC CEO or the Comptroller‑General of Customs.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
62 Notice about reporting obligations to be given to travellers to Australia
Scope
(1) This section applies to a written notice:
(a) that relates to reporting obligations under this Part; and
(b) the form and contents of which are specified in the AML/CTF Rules.
Notice to be given to travellers
(2) If an aircraft or ship leaves a place outside Australia to travel to a place in Australia without stopping at any other place outside Australia, the person in charge of the aircraft or ship must:
(a) give a copy of the notice, or communicate the information contained in the notice in the manner prescribed by the AML/CTF Rules, to all persons travelling on the aircraft or ship (including members of the crew); or
(b) cause a copy of the notice to be given, or cause to be communicated the information contained in the notice in the manner prescribed by the AML/CTF Rules, to all persons travelling on the aircraft or ship (including members of the crew).
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 50 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Part 5—Electronic funds transfer instructions
Division 1—Introduction
63 Simplified outline
The following is a simplified outline of this Part:
• Electronic funds transfer instructions must include certain information about the origin of the transferred money.
Division 2—2 or more institutions involved in the transfer
64 Electronic funds transfer instructions—2 or more institutions involved in the transfer
Scope
(1) This section applies to:
(a) a multiple‑institution person‑to‑person electronic funds transfer instruction; or
(b) a multiple‑institution same‑person electronic funds transfer instruction.
Note: For exemptions, see section 67.
Funds transfer chain
(2) For the purposes of this Act:
(a) the following persons are taken to form a funds transfer chain:
(i) the ordering institution;
(ii) each person (if any) interposed between the ordering institution and the beneficiary institution;
(iii) the beneficiary institution; and
(b) each person in the chain is to be known as an institution.
Obligations of ordering institution
(3) If the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia, then, before the ordering institution:
(a) passes on the transfer instruction; or
(b) dispatches the transfer instruction; or
(c) takes any other action to carry out the transfer instruction;
the ordering institution must obtain the complete payer information.
Note: For complete payer information, see section 71.
(4) If:
(a) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia; and
(b) the AUSTRAC CEO, by written notice given to the ordering institution, requests the ordering institution to give the complete payer information to the AUSTRAC CEO;
the ordering institution must comply with the request within:
(c) if the request was given to the ordering institution within 6 months after the acceptance of the transfer instruction by the ordering institution—3 business days after the day on which the request was given; or
(d) otherwise—10 business days after the day on which the request was given.
Note: For complete payer information, see section 71.
(5) If:
(a) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia; and
(b) the beneficiary institution, by written notice given to the ordering institution, requests the ordering institution to give the complete payer information to the beneficiary institution;
the ordering institution must comply with the request within:
(c) if the request was given to the ordering institution within 6 months after the acceptance of the transfer instruction by the ordering institution—3 business days after the day on which the request was given; or
(d) otherwise—10 business days after the day on which the request was given.
Note: For complete payer information, see section 71.
(6) If:
(a) the ordering institution is in the funds transfer chain; and
(b) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia;
then, before the ordering institution passes on the transfer instruction to another person in the chain, the ordering institution must ensure that the instruction includes the required transfer information.
Note: For required transfer information, see section 70.
Obligations of interposed institutions in the funds transfer chain
(7) If:
(a) an institution is in the funds transfer chain; and
(b) either:
(i) the institution is an interposed institution and the transfer instruction is passed on to the institution at or through a permanent establishment of the institution in Australia; or
(ii) the institution is an interposed institution and the transfer instruction is to be passed on by the institution at or through a permanent establishment of the institution in Australia; and
(c) either:
(i) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia; or
(ii) the making available by the beneficiary institution of the transferred money would take place at or through a permanent establishment of the beneficiary institution in Australia; and
(d) some or all of the required transfer information was passed on to the institution by another institution in the funds transfer chain;
then:
(e) if the transfer instruction was accepted by the ordering institution at or through a permanent establishment of the ordering institution in a foreign country—before passing on the transfer instruction to another institution in the chain, the interposed institution must ensure that the instruction includes the tracing information; or
(f) in any other case—before passing on the transfer instruction to another institution in the chain, the interposed institution must ensure that the instruction includes so much of the required transfer information as was passed on to the interposed institution as mentioned in paragraph (d).
Note 1: For required transfer information, see section 70.
Note 2: For tracing information, see section 72.
Civil penalty
(8) Subsections (3), (4), (5), (6) and (7) are civil penalty provisions.
65 Request to include customer information in certain international electronic funds transfer instructions
Scope
(1) This section applies to:
(a) a multiple‑institution person‑to‑person electronic funds transfer instruction; or
(b) a multiple‑institution same‑person electronic funds transfer instruction;
if:
(c) the instruction is accepted at or through a permanent establishment of the ordering institution in a foreign country; and
(d) the transferred money is to be, or is, made available to the payee at or through a permanent establishment of the beneficiary institution in Australia.
Note: For exemptions, see section 67.
Direction to beneficiary institution
(2) If:
(a) the beneficiary institution has received 2 or more electronic funds transfer instructions from a particular ordering institution; and
(b) at least one of the electronic funds transfer instructions does not include the required transfer information; and
(c) the AUSTRAC CEO, by written notice given to the beneficiary institution, directs the beneficiary institution to give the ordering institution a request (in a form specified in the notice) to include required transfer information in all future electronic funds transfer instructions passed on by the ordering institution to the beneficiary institution;
the beneficiary institution must comply with the direction within 10 business days after the day on which the direction is given.
Report by beneficiary institution
(3) If the beneficiary institution gives the ordering institution a request under subsection (2), the beneficiary institution must, within:
(a) 20 business days after the day on which the subsection (2) direction was given; or
(b) if the AUSTRAC CEO, by written notice given to the beneficiary institution, allows a longer period—that longer period;
give the AUSTRAC CEO a report about the ordering institution’s response, or lack of response, to the request.
(4) A report under subsection (3) must:
(a) be in the approved form; and
(b) contain such information relating to the matter as is required by the approved form.
Note: For additional rules about reports, see section 244.
Civil penalty
(5) Subsections (2) and (3) are civil penalty provisions.
Powers of beneficiary institution
(6) If an electronic funds transfer instruction received by the beneficiary institution does not include the required transfer information, the beneficiary institution may, for the purpose set out in subsection (7), refuse to make the transferred money available to the payee until the required transfer information is passed on to the beneficiary institution.
(7) The purpose referred to in subsection (6) is to:
(a) identify; or
(b) mitigate; or
(c) manage;
the risk the beneficiary institution may reasonably face that the making available by the beneficiary institution of transferred money at or through a permanent establishment of the beneficiary institution in Australia might (whether inadvertently or otherwise) involve or facilitate:
(d) money laundering; or
(e) financing of terrorism.
Protection from liability
(8) An action, suit or proceeding (whether criminal or civil) does not lie against:
(a) the beneficiary institution; or
(b) an officer, employee or agent of the beneficiary institution acting in the course of his or her office, employment or agency;
in relation to anything done, or omitted to be done, in good faith by the beneficiary institution, officer, employee or agent in the exercise, or purported exercise, of the power conferred by subsection (6).
Division 3—Only one institution involved in the transfer
66 Electronic funds transfer instructions—only one institution involved in the transfer
Scope
(1) This section applies to:
(a) a same‑institution person‑to‑person electronic funds transfer instruction; or
(b) a same‑institution same‑person electronic funds transfer instruction if the instruction is to be carried out otherwise than by way of transferring money from an account held by the payer with the ordering institution in a particular country to another account held by the payer with the ordering institution in that country.
Note: For exemptions, see section 67.
Obligations of beneficiary institution
(2) If:
(a) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia; or
(b) the making available by the beneficiary institution of the transferred money would take place at or through a permanent establishment of the beneficiary institution in Australia;
then, before the beneficiary institution makes the transferred money available to the payee, the beneficiary institution must obtain the complete payer information.
Note: For complete payer information, see section 71.
(3) If:
(a) either:
(i) the transfer instruction is accepted by the ordering institution at or through a permanent establishment of the ordering institution in Australia; or
(ii) the making available by the beneficiary institution of the transferred money would take place at or through a permanent establishment of the beneficiary institution in Australia; and
(b) the AUSTRAC CEO, by written notice given to the ordering institution, requests the institution to give the complete payer information to the AUSTRAC CEO;
the ordering institution must comply with the request within:
(c) if the request was given to the ordering institution within 6 months after the acceptance of the transfer instruction by the ordering institution—3 business days after the day on which the request was given; or
(d) otherwise—10 business days after the day on which the request was given.
Note: For complete payer information, see section 71.
Civil penalty
(6) Subsections (2) and (3) are civil penalty provisions.
Division 4—General provisions
67 Exemptions
Approved third‑party bill payment systems
(1) This Part does not apply to an instruction that arises from the use of an approved third‑party bill payment system.
Debit cards and credit cards
(2) This Part does not apply to an instruction that arises from the use of a debit card or a credit card if:
(a) the use does not involve obtaining a cash advance; and
(b) the number of the card is included in the instruction; and
(c) the card is not of a kind specified in the AML/CTF Rules; and
(d) the use does not take place in circumstances of a kind specified in the AML/CTF Rules.
(2A) This Part does not apply to an instruction that arises from the use of a debit card or a credit card at a branch of a financial institution if:
(a) the number of the card is included in the instruction; and
(b) the card is not of a kind specified in the AML/CTF Rules; and
(c) the use does not take place in circumstances of a kind specified in the AML/CTF Rules.
Cheques
(3) This Part does not apply to an instruction given by way of a cheque unless the cheque is of a kind specified in the AML/CTF Rules.
ATMs
(4) This Part does not apply to an instruction given by the use of an ATM if:
(a) the ATM is not of a kind specified in the AML/CTF Rules; and
(b) the use does not take place in circumstances of a kind specified in the AML/CTF Rules.
Merchant terminals
(4A) This Part does not apply to an instruction given by way of the operation of a merchant terminal if:
(a) the operation is authorised by a financial institution; and
(b) the merchant terminal is not of a kind specified in the AML/CTF Rules; and
(c) the operation does not take place in circumstances of a kind specified in the AML/CTF Rules.
Inter‑financial institution transfers
(5) This Part does not apply to a transfer of money between 2 financial institutions if each financial institution acts on its own behalf.
Prescribed instructions
(6) This Part does not apply to an instruction of a kind prescribed by the AML/CTF Rules.
68 Defence of relying on information supplied by another person
Scope
(1) This section applies to section 175 proceedings for a contravention of a civil penalty provision of Division 2 or 3.
Defence
(2) In the proceedings, it is a defence if the defendant proves that:
(a) the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information given by another person; and
(b) the other person did not give the information in the other person’s capacity as an officer, employee or agent of the person who relied on the information.
69 Division 400 and Chapter 5 of the Criminal Code
If a person, or an officer, employee or agent of a person, communicates or gives information to the AUSTRAC CEO under section 64 or 66, the person, officer, employee or agent is taken, for the purposes of Division 400 and Chapter 5 of the Criminal Code, not to have been in possession of that information at any time.
70 Required transfer information
For the purposes of the application of this Act to an electronic funds transfer instruction, the required transfer information is:
(a) if:
(i) the transfer instruction is of a kind specified in the AML/CTF Rules; or
(ii) the ordering institution accepts the transfer instruction in circumstances specified in the AML/CTF Rules; or
(iii) the transfer instruction is, or is to be, passed on, or carried out, in circumstances specified in the AML/CTF Rules;
the tracing information; or
(b) if:
(i) the ordering institution accepts the transfer instruction at or through a permanent establishment of the ordering institution in a particular country; and
(ii) the beneficiary institution makes, or is to make, the money available at or through a permanent establishment of the beneficiary institution in another country; and
(iii) the transfer instruction is a batched electronic funds transfer instruction; and
(iv) paragraph (a) does not apply;
the tracing information; or
(c) if:
(i) the ordering institution accepts the transfer instruction at or through a permanent establishment of the ordering institution in a particular country; and
(ii) the beneficiary institution makes, or is to make, the money available at or through a permanent establishment of the beneficiary institution in another country; and
(iii) the transfer instruction is not a batched electronic funds transfer instruction; and
(iv) paragraph (a) does not apply;
the complete payer information; or
(d) if:
(i) the ordering institution accepts the transfer instruction at or through a permanent establishment of the ordering institution in Australia; and
(ii) the beneficiary institution makes, or is to make, the money available at or through a permanent establishment of the beneficiary institution in Australia; and
(iii) paragraph (a) does not apply;
the tracing information.
Note 1: For complete payer information, see section 71.
Note 2: For tracing information, see section 72.
71 Complete payer information
For the purposes of the application of this Act to an electronic funds transfer instruction, the complete payer information is:
(a) the name of the payer; and
(b) one of the following:
(i) the payer’s full business or residential address (not being a post office box);
(ii) a unique identification number given to the payer by the Commonwealth or an authority of the Commonwealth (for example, an Australian Business Number or an Australian Company Number);
(iii) a unique identification number given to the payer by the government of a foreign country;
(iv) the identification number given to the payer by the ordering institution;
(v) if the payer is an individual—the payer’s date of birth, the country of the payer’s birth and the town, city or locality of the payer’s birth; and
(c) if the money is, or is to be, transferred from a single account held by the payer with the ordering institution in Australia—the account number for the account; and
(d) if paragraph (c) does not apply—either:
(i) a unique reference number for the transfer instruction; or
(ii) if the money is, or is to be, transferred from a single account held by the payer with the ordering institution—the account number for the account.
72 Tracing information
For the purposes of the application of this Act to an electronic funds transfer instruction, the tracing information is:
(a) if the money is to be transferred from an account held by the payer with the ordering institution—the account number; or
(b) in any case—a unique reference number for the transfer instruction.
Part 6—The Remittance Sector Register
Division 1—Simplified outline
73 Simplified outline
The following is a simplified outline of this Part:
• This Part provides for a tiered system of registration for providers of registrable remittance network services and providers of registrable designated remittance services.
• Division 2 sets out offences and civil penalties in relation to the provision of registrable remittance network services and registrable designated remittance services by persons who are not registered.
• Division 3 requires the AUSTRAC CEO to maintain the Remittance Sector Register and sets out the process of applying for registration.
Division 2—Restrictions on providing certain remittance services
74 Unregistered persons must not provide certain remittance services
Registrable remittance network services
(1) A person (the first person) must not provide a registrable remittance network service to another person if:
(a) the first person is not a registered remittance network provider; or
(b) the first person is a registered remittance network provider, but the person to whom the service is provided is not a registered remittance affiliate of the first person.
Registrable designated remittance services—independents
(1A) A person must not provide a registrable designated remittance service if:
(a) the person provides the service other than as part of a remittance network operated by a registered remittance network provider; and
(b) the person is not a registered independent remittance dealer.
Registrable designated remittance services—affiliates
(1B) A person must not provide a registrable designated remittance service if:
(a) the person provides the service as part of a remittance network operated by a registered remittance network provider; and
(b) the person is not a registered remittance affiliate of the registered remittance network provider.
Breach of conditions
(1C) A person must not breach a condition to which the registration of the person as any of the following is subject:
(a) a remittance network provider;
(b) an independent remittance dealer;
(c) a remittance affiliate of a registered remittance network provider.
Offences
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
(3) Strict liability applies to paragraphs (2)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) the AUSTRAC CEO previously:
(i) gave the person a direction under subsection 191(2) in relation to subsection (1), (1A), (1B) or (1C) of this section; or
(ii) accepted an undertaking given by the person under section 197 in relation to subsection (1), (1A), (1B) or (1C) of this section; and
(e) that was the only occasion on which the AUSTRAC CEO previously gave such a direction to, or accepted such an undertaking from, the person.
Penalty: Imprisonment for 4 years or 1,000 penalty units, or both.
(5) Strict liability applies to paragraphs (4)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) the AUSTRAC CEO previously:
(i) gave the person a direction under subsection 191(2) in relation to subsection (1), (1A), (1B) or (1C) of this section; or
(ii) accepted an undertaking given by the person under section 197 in relation to subsection (1), (1A), (1B) or (1C) of this section; and
(e) that was not the only occasion on which the AUSTRAC CEO previously gave such a direction to, or accepted such an undertaking from, the person.
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
(7) Strict liability applies to paragraphs (6)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) either:
(i) the person had previously been convicted of an offence against subsection (2), (4) or (6), and that conviction has not been set aside or quashed; or
(ii) an order had previously been made against the person under section 19B of the Crimes Act 1914 in respect of an offence against subsection (2), (4) or (6), and that order has not been set aside.
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
(9) Strict liability applies to paragraphs (8)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
Civil penalty
(10) Subsections (1), (1A), (1B) and (1C) are civil penalty provisions.
Division 3—Registration of persons
75 Remittance Sector Register
(1) The AUSTRAC CEO must maintain a register for the purposes of this Part, to be known as the Remittance Sector Register.
(2) The AUSTRAC CEO may maintain the Remittance Sector Register by electronic means.
(3) The Remittance Sector Register is not a legislative instrument.
(4) The AML/CTF Rules may make provision for and in relation to the following:
(a) the correction of entries in the Remittance Sector Register;
(b) the publication of the Remittance Sector Register in whole or part, or of specified information entered on the Remittance Sector Register;
(c) any other matter relating to the administration or operation of the Remittance Sector Register.
75A Information to be entered on the Remittance Sector Register
(1) If the AUSTRAC CEO decides to register a person under subsection 75C(2), the AUSTRAC CEO must enter the following details on the Remittance Sector Register:
(a) the name of the person;
(b) whether the person is registered as:
(i) a remittance network provider; or
(ii) an independent remittance dealer; or
(iii) a remittance affiliate of a registered remittance network provider;
(c) if the person is registered as a remittance affiliate of a registered remittance network provider—the name of the registered remittance network provider;
(d) any conditions to which the registration of the person is subject;
(e) the date on which the registration takes effect;
(f) the registrable details in relation to the person.
(2) To avoid doubt, nothing in this Part prevents separate entries being entered on the Remittance Sector Register in relation to the same person in different capacities.
75B Applications for registration
(1) A person may apply in writing to the AUSTRAC CEO for registration as:
(a) a remittance network provider; or
(b) an independent remittance dealer; or
(c) subject to subsection (5)—a remittance affiliate of a registered remittance network provider.
(2) A registered remittance network provider may apply in writing to the AUSTRAC CEO for another person to be registered as a remittance affiliate of the registered remittance network provider.
(3) An application under subsection (1) or (2) must:
(a) be in the approved form; and
(b) contain the information required by the AML/CTF Rules.
(4) Without limiting the information that the AML/CTF Rules may require under paragraph (3)(b), the AML/CTF Rules may require information relating to the matters mentioned in paragraph 75C(2)(a) or in Rules made under paragraph 75C(2)(b) (these provisions deal with matters to which the AUSTRAC CEO must have regard in deciding whether to register a person).
(5) A person may apply for registration as a remittance affiliate of a registered remittance network provider as mentioned in paragraph (1)(c) only if:
(a) either:
(i) when the person makes the application, the person is a registered independent remittance dealer; or
(ii) the application is made in conjunction with an application by the person for registration as a registered independent remittance dealer; and
(b) the registered remittance network provider has consented to the making of the application.
Deemed refusal in certain circumstances
(6) If the AUSTRAC CEO has not made a decision on the application within the relevant period, the AUSTRAC CEO is taken to have decided not to register the person at the end of the relevant period. The relevant period is the period of 90 days beginning on the latest of the following days:
(a) the day the application is made;
(b) if the AUSTRAC CEO requests information under subsection 75N(1) in relation to the application—the last day such information is provided;
(c) if the person makes a submission under section 75Q in relation to the application—the day the person makes the submission.
Note: A deemed decision not to register the person is reviewable (see Part 17A).
(7) However, if the AUSTRAC CEO determines in writing that:
(a) the application cannot be dealt with properly within the 90 day period, either because of its complexity or because of other special circumstances; and
(b) that period is extended by a specified period of not more than 30 days;
the relevant period is that period as so extended. The AUSTRAC CEO must notify the applicant in writing of the determination before the end of the 90 day period.
75C Registration by AUSTRAC CEO
When section applies
(1) This section applies if an application has been made under section 75B for registration of a person.
When AUSTRAC CEO must register a person
(2) The AUSTRAC CEO must decide to register the person in accordance with the application if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:
(a) whether registering the person would involve a significant money laundering, financing of terrorism, people smuggling or other serious crime risk; and
(b) such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.
Note: A decision not to register the person is reviewable (see Part 17A).
Matters that may be specified in the AML/CTF Rules
(3) Without limiting the matters that the AML/CTF Rules may specify under paragraph (2)(b), the matters may relate to the following:
(a) offences of which the applicant for registration, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person, has been charged or convicted under the law of the Commonwealth, a State or Territory or a foreign country;
(b) the compliance or non‑compliance of the applicant, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person, with this Act or any other law;
(c) the legal and beneficial ownership and control of the applicant, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person;
(d) the kinds of designated services to be provided by the applicant or by a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant;
(e) the consent of a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant.
Notice of decision to register
(4) The AUSTRAC CEO must, as soon as practicable after deciding to register a person, give a written notice to:
(a) the applicant for registration; and
(b) if the application was made by a registered remittance network provider for another person to be registered as a remittance affiliate of the registered remittance network provider—the other person.
Contents of notice of decision to register
(5) A notice under subsection (4) in relation to a decision to register a person must specify:
(a) whether the person is registered as:
(i) a remittance network provider; or
(ii) an independent remittance dealer; or
(iii) a remittance affiliate of a registered remittance network provider; and
(b) the conditions (if any) to which the registration is subject (see section 75E); and
(c) the date on which the registration takes effect.
75D Spent convictions scheme
The AML/CTF Rules made under paragraph 75B(3)(b) or 75C(2)(b) must not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
75E Registration may be subject to conditions
(1) The AUSTRAC CEO may, in writing, impose conditions to which the registration of a person under this Part is subject.
Note: A decision to impose a condition is reviewable (see Part 17A).
(2) Without limiting the conditions that the AUSTRAC CEO may impose under subsection (1), the conditions may relate to the following:
(a) the volume of funds remitted (whether by reference to a particular time, a particular amount or otherwise);
(b) the destination (however described) of funds remitted;
(c) requiring notification of particular changes in circumstances.
Note: Section 75M imposes a general obligation in relation to notification of changes in circumstances.
75F When registration of a person ceases
(1) The registration of a person ceases at the earliest of the following times:
(a) when the cancellation of the registration of the person under section 75G takes effect;
(b) when the entry relating to the registration of the person is removed from the Remittance Sector Register under subsection 75K(2);
(c) subject to subsection (2)—3 years after the day on which the registration took effect;
(d) in the case of an individual—when the individual dies;
(e) in the case of a body corporate—when the body corporate ceases to exist.
(2) Paragraph (1)(c) is subject to the AML/CTF Rules made under section 75J (which deals with renewal of registration).
75G Cancellation of registration
(1) The AUSTRAC CEO may cancel the registration of a person if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:
(a) whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism, people smuggling or other serious crime risk; or
(b) one or more breaches by the person of a condition of registration; or
(c) such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.
Note: A decision to cancel a registration is reviewable (see Part 17A).
(1A) The AUSTRAC CEO may also cancel the registration of a person if the AUSTRAC CEO has reasonable grounds to believe that the registered person no longer carries on a business that gives rise to the requirement to be registered under this Part.
(2) The cancellation of the registration of a person takes effect on the day specified in the notice given to the person under subsection 233C(1).
(3) The AUSTRAC CEO may publish, in the manner specified in the AML/CTF Rules, a list of the names of persons whose registration has been cancelled and the date the cancellation takes effect.
75H Suspension of registration
(1) The AML/CTF Rules may make provision for and in relation to the suspension of registrations by the AUSTRAC CEO under this Part.
(2) The AML/CTF Rules may provide for matters including, but not limited to, the following:
(a) the grounds for suspension of registration;
(b) the effect of suspension on registration;
(c) the period for which suspensions have effect;
(d) the effect of suspension of a registered remittance network provider upon its registered remittance affiliates;
(e) making entries in and removing entries from the Remittance Sector Register in relation to suspension;
(f) notices of suspension;
(g) review of decisions relating to suspension.
75J Renewal of registration
(1) The AML/CTF Rules may make provision for and in relation to the renewal of registrations by the AUSTRAC CEO under this Part.
(2) The AML/CTF Rules may provide for matters including, but not limited to, the following:
(a) the making of applications for renewal;
(b) the period within which applications for renewal may be made;
(c) the criteria for determining applications for renewal;
(d) entries in the Remittance Sector Register in relation to renewal;
(e) the giving of notices relating to decisions on applications for renewal;
(f) review of decisions relating to applications for renewal;
(g) the period for which renewed registrations have effect.
(3) In particular, the AML/CTF Rules may provide that:
(a) if the registration of a person would otherwise cease at the end of the period of 3 years commencing on the day on which the registration took effect; and
(b) before the end of that period, an application for renewal of the registration was made to the AUSTRAC CEO within the period, and in the manner provided for, in the AML/CTF Rules;
the registration of the person continues in effect after the end of that period in accordance with the Rules.
75K Removal of entries from the Remittance Sector Register
Removal on request
(1) A person who is one or more of the following:
(a) a registered remittance network provider;
(b) a registered independent remittance dealer;
(c) a registered remittance affiliate of a registered remittance network provider;
may request the AUSTRAC CEO, in writing, to remove the entry relating to one or more of the registrations of the person from the Remittance Sector Register.
(2) If a person makes a request under subsection (1) in relation to one or more registrations, the AUSTRAC CEO must remove from the Remittance Sector Register the entry relating to each registration to which the request relates.
Removal on cessation of registration—remittance network providers
(3) If a person ceases to be a registered remittance network provider, the AUSTRAC CEO must remove from the Remittance Sector Register:
(a) the entry relating to the registered remittance network provider; and
(b) each entry relating to a registered remittance affiliate of the registered remittance network provider.
Removal on cessation of registration—independent remittance dealers and affiliates
(4) If a person ceases to be a registered independent remittance dealer or a registered remittance affiliate of a registered remittance network provider, the AUSTRAC CEO must remove from the Remittance Sector Register each entry relating to the independent remittance dealer or the remittance affiliate, as the case requires.
Notice of removal—remittance network providers
(5) The AUSTRAC CEO must, as soon as reasonably practicable, notify a remittance network provider, in writing, if:
(a) the AUSTRAC CEO removes from the Remittance Sector Register an entry relating to a remittance affiliate of the provider; and
(b) the removal of the affiliate was not because of the removal of the provider as required by paragraph (3)(b).
Notice of removal—affiliates of remittance network providers
(6) The AUSTRAC CEO must, as soon as reasonably practicable, notify each affiliate of a remittance network provider, in writing, if the AUSTRAC CEO removes from the Remittance Sector Register the entry relating to the provider.
75L AML/CTF Rules—general provision
If a provision of this Part provides for the AML/CTF Rules to make provision in relation to a matter relating to the registration or proposed registration of a person, the AML/CTF Rules may make different provision in relation to a matter depending on whether the registration or proposed registration of the person is as:
(a) a remittance network provider; or
(b) an independent remittance dealer; or
(c) a remittance affiliate of a registered remittance network provider.
75M Registered persons to advise of material changes in circumstance etc.
(1) A person who is registered under this Part as:
(a) a remittance network provider; or
(b) an independent remittance dealer; or
(c) a remittance affiliate of a registered remittance network provider that applied for registration on its own behalf (see paragraph 75B(1)(c));
must advise the AUSTRAC CEO of the following:
(d) any change in circumstances that could materially affect the person’s registration;
(e) any matters specified in the AML/CTF Rules for the purposes of this paragraph.
(2) A registered remittance affiliate of a registered remittance network provider must advise the provider of the following:
(a) any change in circumstances that could materially affect the person’s registration;
(b) any matters specified in the AML/CTF Rules for the purposes of this paragraph;
unless the affiliate applied for registration on its own behalf (see paragraph 75B(1)(c)).
(3) A registered remittance network provider must advise the AUSTRAC CEO of any changes notified to it under subsection (2).
(4) A person who is required by this section to advise the AUSTRAC CEO or a registered remittance network provider of a change in circumstances or a matter must do so in accordance with the approved form, and:
(a) in the case of a requirement under subsection (1) or (2)—within 14 days of the change in circumstances or the matter arising (however described); and
(b) in the case of a requirement under subsection (3)—within 7 days of the registered remittance network provider concerned receiving the advice.
Civil penalty
(5) Subsections (1), (2) and (3) are civil penalty provisions.
75N AUSTRAC CEO may request further information
(1) The AUSTRAC CEO may, in writing, request further information from any person for the purposes of making a decision under this Part.
(2) The AUSTRAC CEO is not required to make a decision under this Part until any information requested under subsection (1) in relation to the decision has been provided.
75P Immunity from suit
An action, suit or proceeding (whether criminal or civil) does not lie against:
(a) the Commonwealth; or
(b) the AUSTRAC CEO; or
(c) a member of the staff of AUSTRAC;
in relation to the publication of the Remittance Sector Register or a list of a kind mentioned in subsection 75G(3).
75Q Steps to be taken by AUSTRAC CEO before making certain reviewable decisions
(1) Before making a reviewable decision under section 75C, 75E or 75G in relation to one or more persons, the AUSTRAC CEO must give a written notice to each of the persons containing:
(a) the terms of the proposed decision; and
(b) if the proposed decision is to cancel a registration—the date on which the cancellation is proposed to take effect; and
(c) the reasons for the proposed decision; and
(d) a statement that the person may, within 28 days of the giving of the notice, make a submission under this section in relation to the proposed decision.
Note: An example of a reviewable decision relating to 2 persons is a decision refusing to register a person as a remittance affiliate of a registered remittance network provider, if the provider applied under subsection 75B(2) for that person to be so registered.
(2) The AUSTRAC CEO is not required to give a notice under this section if the AUSTRAC CEO is satisfied that it is inappropriate to do so because of the urgency of the circumstances.
Division 5—Basis of registration
75T Basis of registration
Registration under this Part is on the basis that:
(a) the registration may cease as mentioned in section 75F; and
(b) the registration may be suspended as mentioned in section 75H; and
(c) the registration may be made subject to conditions as mentioned in section 75E; and
(d) the registration may cease, be suspended or be made subject to conditions by or under later legislation; and
(e) no compensation is payable if the registration ceases, is suspended or made subject to conditions as mentioned in any of the above paragraphs.
Part 6A—The Digital Currency Exchange Register
Division 1—Simplified outline
76 Simplified outline
The following is a simplified outline of this Part:
• This Part provides for a system of registration for providers of digital currency exchange services.
• Division 2 sets out offences and civil penalties in relation to the provision of registrable digital currency exchange services by persons who are not registered.
• Division 3 requires the AUSTRAC CEO to maintain the Digital Currency Exchange Register and sets out the process of applying for registration.
Division 2—Restrictions on providing digital currency exchange services
76A Unregistered persons must not provide certain digital currency exchange services
Registrable digital currency exchange services
(1) A person (the first person) must not provide a registrable digital currency exchange service to another person if the first person is not a registered digital currency exchange provider.
Breach of conditions
(2) A person must not breach a condition to which the registration of the person as a digital currency exchange provider is subject.
Offences
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1) or (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
(4) Strict liability applies to paragraphs (3)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1) or (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) the AUSTRAC CEO previously:
(i) gave the person a direction under subsection 191(2) in relation to subsection (1) or (2) of this section; or
(ii) accepted an undertaking given by the person under section 197 in relation to subsection (1) or (2) of this section; and
(e) that was the only occasion on which the AUSTRAC CEO previously gave such a direction to, or accepted such an undertaking from, the person.
Penalty: Imprisonment for 4 years or 1,000 penalty units, or both.
(6) Strict liability applies to paragraphs (5)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1) or (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) the AUSTRAC CEO previously:
(i) gave the person a direction under subsection 191(2) in relation to subsection (1) or (2) of this section; or
(ii) accepted an undertaking given by the person under section 197 in relation to subsection (1) or (2) of this section; and
(e) that was not the only occasion on which the AUSTRAC CEO previously gave such a direction to, or accepted such an undertaking from, the person.
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
(8) Strict liability applies to paragraphs (7)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1) or (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement; and
(d) either:
(i) the person had previously been convicted of an offence against subsection (3), (5) or (7), and that conviction has not been set aside or quashed; or
(ii) an order had previously been made against the person under section 19B of the Crimes Act 1914 in respect of an offence against subsection (3), (5) or (7), and that order has not been set aside.
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
(10) Strict liability applies to paragraphs (9)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
Civil penalty
(11) Subsections (1) and (2) are civil penalty provisions.
Division 3—Registration of persons
76B Digital Currency Exchange Register
(1) The AUSTRAC CEO must maintain a register for the purposes of this Part, to be known as the Digital Currency Exchange Register.
(2) The AUSTRAC CEO may maintain the Digital Currency Exchange Register by electronic means.
(3) The Digital Currency Exchange Register is not a legislative instrument.
(4) The AML/CTF Rules may make provision for and in relation to the following:
(a) the correction of entries in the Digital Currency Exchange Register;
(b) the publication of the Digital Currency Exchange Register in whole or part, or of specified information entered on the Digital Currency Exchange Register;
(c) any other matter relating to the administration or operation of the Digital Currency Exchange Register.
76C Information to be entered on the Digital Currency Exchange Register
If the AUSTRAC CEO decides to register a person under subsection 76E(2), the AUSTRAC CEO must enter the following details on the Digital Currency Exchange Register:
(a) the name of the person;
(b) any conditions to which the registration of the person is subject;
(c) the date on which the registration takes effect;
(d) the registrable details in relation to the person.
76D Applications for registration
(1) A person may apply in writing to the AUSTRAC CEO for registration as a digital currency exchange provider.
(2) An application under subsection (1) must:
(a) be in the approved form; and
(b) contain the information required by the AML/CTF Rules.
(3) Without limiting the information that the AML/CTF Rules may require under paragraph (2)(b), the AML/CTF Rules may require information relating to the matters mentioned in paragraph 76E(2)(a) or in Rules made under paragraph 76E(2)(b) (these provisions deal with matters to which the AUSTRAC CEO must have regard in deciding whether to register a person).
Deemed refusal in certain circumstances
(4) If the AUSTRAC CEO has not made a decision on the application within the relevant period, the AUSTRAC CEO is taken to have decided not to register the person at the end of the relevant period. The relevant period is the period of 90 days beginning on the latest of the following days:
(a) the day the application is made;
(b) if the AUSTRAC CEO requests information under subsection 76Q(1) in relation to the application—the last day such information is provided;
(c) if the person makes a submission under section 76S in relation to the application—the day the person makes the submission.
Note: A deemed decision not to register the person is reviewable (see Part 17A).
(5) However, if the AUSTRAC CEO determines in writing that:
(a) the application cannot be dealt with properly within the 90 day period, either because of its complexity or because of other special circumstances; and
(b) that period is extended by a specified period of not more than 30 days;
the relevant period is that period as so extended. The AUSTRAC CEO must notify the applicant in writing of the determination before the end of the 90 day period.
76E Registration by AUSTRAC CEO
When section applies
(1) This section applies if an application has been made under section 76D for registration of a person.
When AUSTRAC CEO must register a person
(2) The AUSTRAC CEO must decide to register the person in accordance with the application if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:
(a) whether registering the person would involve a significant money laundering, financing of terrorism or other serious crime risk; and
(b) such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.
Note: A decision not to register the person is reviewable (see Part 17A).
Matters that may be specified in the AML/CTF Rules
(3) Without limiting the matters that the AML/CTF Rules may specify under paragraph (2)(b), the matters may relate to the following:
(a) offences of which the applicant for registration, or any other person, has been charged or convicted under the law of the Commonwealth, a State or Territory or a foreign country;
(b) the compliance or non‑compliance of the applicant, or any other person, with this Act or any other law;
(c) the legal and beneficial ownership and control of the applicant, or any other person.
Notice of decision to register
(4) The AUSTRAC CEO must, as soon as practicable after deciding to register an applicant, give a written notice to the applicant.
Contents of notice of decision to register
(5) A notice under subsection (4) must specify:
(a) the conditions (if any) to which the registration is subject (see section 76G); and
(b) the date on which the registration takes effect.
76F Spent convictions scheme
The AML/CTF Rules made under paragraph 76D(2)(b) or 76E(2)(b) must not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
76G Registration may be subject to conditions
(1) The AUSTRAC CEO may, in writing, impose conditions to which the registration of a person under this Part is subject.
Note: A decision to impose a condition is reviewable (see Part 17A).
(2) Without limiting the conditions that the AUSTRAC CEO may impose under subsection (1), the conditions may relate to the following:
(a) the value of digital currency or money exchanged;
(b) the volume of digital currency exchanged (whether by reference to a particular period, a particular kind of digital currency, or otherwise);
(c) the kinds of digital currencies exchanged;
(d) requiring notification of the exchange of particular kinds of digital currency, changes in circumstances, or other specified events.
Note: Section 76P imposes a general obligation in relation to notification of changes in circumstances.
76H When registration of a person ceases
(1) The registration of a person ceases at the earliest of the following times:
(a) when the cancellation of the registration of the person under section 76J takes effect;
(b) when the entry relating to the registration of the person is removed from the Digital Currency Exchange Register under subsection 76M(2);
(c) subject to subsection (2)—3 years after the day on which the registration took effect;
(d) in the case of an individual—when the individual dies;
(e) in the case of a body corporate—when the body corporate ceases to exist.
(2) Paragraph (1)(c) is subject to the AML/CTF Rules made under section 76L (which deals with renewal of registration).
76J Cancellation of registration
(1) The AUSTRAC CEO may cancel the registration of a person if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:
(a) whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism or other serious crime risk; or
(b) one or more breaches by the person of a condition of registration; or
(c) such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.
(2) The AUSTRAC CEO may also cancel the registration of a person if the AUSTRAC CEO has reasonable grounds to believe that the registered person no longer carries on a business that involves providing a digital currency exchange service.
Note: A decision to cancel a registration is reviewable (see Part 17A).
(3) The cancellation of the registration of a person takes effect on the day specified in the notice given to the person under subsection 233C(1).
(4) The AUSTRAC CEO may publish, in the manner specified in the AML/CTF Rules, a list of the names of persons whose registration has been cancelled and the date the cancellation takes effect.
76K Suspension of registration
(1) The AML/CTF Rules may make provision for and in relation to the suspension of registrations by the AUSTRAC CEO under this Part.
(2) The AML/CTF Rules may provide for matters including, but not limited to, the following:
(a) the grounds for suspension of registration;
(b) the effect of suspension on registration;
(c) the period for which suspensions have effect;
(d) making entries in and removing entries from the Digital Currency Exchange Register in relation to suspension;
(e) notices of suspension;
(f) review of decisions relating to suspension.
76L Renewal of registration
(1) The AML/CTF Rules may make provision for and in relation to the renewal of registrations by the AUSTRAC CEO under this Part.
(2) The AML/CTF Rules may provide for matters including, but not limited to, the following:
(a) the making of applications for renewal;
(b) the period within which applications for renewal may be made;
(c) the criteria for determining applications for renewal;
(d) entries in the Digital Currency Exchange Register in relation to renewal;
(e) the giving of notices relating to decisions on applications for renewal;
(f) review of decisions relating to applications for renewal;
(g) the period for which renewed registrations have effect.
(3) In particular, the AML/CTF Rules may provide that:
(a) if the registration of a person would otherwise cease at the end of the period of 3 years commencing on the day on which the registration took effect; and
(b) before the end of that period, an application for renewal of the registration was made to the AUSTRAC CEO within the period, and in the manner provided for, in the AML/CTF Rules;
the registration of the person continues in effect after the end of that period in accordance with the Rules.
76M Removal of entries from the Digital Currency Exchange Register
Removal on request
(1) A person who is a registered digital currency exchange provider may request the AUSTRAC CEO, in writing, to remove the entry relating to the registration of the person from the Digital Currency Exchange Register.
(2) If a person makes a request under subsection (1), the AUSTRAC CEO must remove the entry from the Digital Currency Exchange Register.
Removal on cessation of registration
(3) If the registration of a person ceases under another provision of this Part, the AUSTRAC CEO must remove the entry relating to the registration from the Digital Currency Exchange Register.
Notice of removal
(4) The AUSTRAC CEO must, as soon as reasonably practicable, notify a person, in writing, if the AUSTRAC CEO has acted under subsection (3) in relation to the person (unless the person has died or, in the case of a body corporate, ceased to exist).
76N AML/CTF Rules—general provision
If a provision of this Part provides for the AML/CTF Rules to make provision in relation to a matter relating to the registration or proposed registration of a person, the AML/CTF Rules may make different provision in relation to a matter depending on different circumstances.
76P Registered persons to advise of material changes in circumstance etc.
(1) A person who is registered under this Part must advise the AUSTRAC CEO of the following:
(a) any change in circumstances that could materially affect the person’s registration;
(b) any matters specified in the AML/CTF Rules for the purposes of this paragraph.
(2) A person who is required by this section to advise the AUSTRAC CEO of a change in circumstances or a matter must do so:
(a) in accordance with the approved form; and
(b) within 14 days of the change in circumstances or the matter arising (however described).
Civil penalty
(3) Subsection (1) is a civil penalty provision.
76Q AUSTRAC CEO may request further information
(1) The AUSTRAC CEO may, in writing, request further information from any person for the purposes of making a decision under this Part.
(2) The AUSTRAC CEO is not required to make a decision under this Part until any information requested under subsection (1) in relation to the decision has been provided.
76R Immunity from suit
An action, suit or proceeding (whether criminal or civil) does not lie against:
(a) the Commonwealth; or
(b) the AUSTRAC CEO; or
(c) a member of the staff of AUSTRAC;
in relation to the publication of the Digital Currency Exchange Register or a list of a kind mentioned in subsection 76J(4).
76S Steps to be taken by AUSTRAC CEO before making certain reviewable decisions
(1) Before making a reviewable decision under section 76E, 76G or 76J in relation to a person, the AUSTRAC CEO must give a written notice to the person containing:
(a) the terms of the proposed decision; and
(b) if the proposed decision is to cancel a registration—the date on which the cancellation is proposed to take effect; and
(c) the reasons for the proposed decision; and
(d) a statement that the person may, within 28 days of the giving of the notice, make a submission under this section in relation to the proposed decision.
(2) The AUSTRAC CEO is not required to give a notice under this section if the AUSTRAC CEO is satisfied that it is inappropriate to do so because of the urgency of the circumstances.
Division 4—Basis of registration
76T Basis of registration
Registration under this Part is on the basis that:
(a) the registration may cease as mentioned in section 76H; and
(b) the registration may be suspended as mentioned in section 76K; and
(c) the registration may be made subject to conditions as mentioned in section 76G; and
(d) the registration may cease, be suspended or be made subject to conditions by or under later legislation; and
(e) no compensation is payable if the registration ceases, is suspended or made subject to conditions as mentioned in any of the above paragraphs.
Part 7—Anti‑money laundering and counter‑terrorism financing programs
Division 1—Introduction
80 Simplified outline
The following is a simplified outline of this Part:
• A reporting entity must have and comply with an anti‑money laundering and counter‑terrorism financing program.
• An anti‑money laundering and counter‑terrorism financing program is divided into Part A (general) and Part B (customer identification).
• Part A of an anti‑money laundering and counter‑terrorism financing program is designed to identify, mitigate and manage the risk a reporting entity may reasonably face that the provision by the reporting entity of designated services at or through a permanent establishment of the entity in Australia might (whether inadvertently or otherwise) involve or facilitate:
(a) money laundering; or
(b) financing of terrorism.
• Part B of an anti‑money laundering and counter‑terrorism financing program sets out the applicable customer identification procedures for customers of the reporting entity.
Division 2—Reporting entity’s obligations
81 Reporting entity must have an anti‑money laundering and counter‑terrorism financing program
(1) A reporting entity must not commence to provide a designated service to a customer if the reporting entity:
(a) has not adopted; and
(b) does not maintain;
an anti‑money laundering and counter‑terrorism financing program that applies to the reporting entity.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
82 Compliance with Part A of an anti‑money laundering and counter‑terrorism financing program
Compliance with program
(1) If a reporting entity has adopted:
(a) a standard anti‑money laundering and counter‑terrorism financing program; or
(b) a joint anti‑money laundering and counter‑terrorism financing program;
that applies to the reporting entity, the reporting entity must comply with:
(c) Part A of the program; or
(d) if the program has been varied on one or more occasions—Part A of the program as varied.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
Exceptions
(3) Subsection (1) does not apply to a particular provision of Part A of a standard anti‑money laundering and counter‑terrorism financing program if the provision was not included in the program in order to comply with the requirements specified in AML/CTF Rules made for the purposes of paragraph 84(2)(c).
(4) Subsection (1) does not apply to a particular provision of Part A of a joint anti‑money laundering and counter‑terrorism financing program if the provision was not included in the program in order to comply with the requirements specified in AML/CTF Rules made for the purposes of paragraph 85(2)(c).
(5) A person who wishes to rely on subsection (3) or (4) bears an evidential burden in relation to that matter.
Division 3—Anti‑money laundering and counter‑terrorism financing programs
83 Anti‑money laundering and counter‑terrorism financing programs
(1) An anti‑money laundering and counter‑terrorism financing program is:
(a) a standard anti‑money laundering and counter‑terrorism financing program (see section 84); or
(b) a joint anti‑money laundering and counter‑terrorism financing program (see section 85); or
(c) a special anti‑money laundering and counter‑terrorism financing program (see section 86).
(2) An anti‑money laundering and counter‑terrorism financing program is not a legislative instrument.
84 Standard anti‑money laundering and counter‑terrorism financing program
(1) A standard anti‑money laundering and counter‑terrorism financing program is a written program that:
(a) applies to a particular reporting entity; and
(b) is divided into the following parts:
(i) Part A (general);
(ii) Part B (customer identification).
Note: A standard anti‑money laundering and counter‑terrorism financing program does not bind the reporting entity unless the reporting entity adopts the program (see section 82).
Part A (general)
(2) Part A of a standard anti‑money laundering and counter‑terrorism financing program is a part:
(a) the primary purpose of which is to:
(i) identify; and
(ii) mitigate; and
(iii) manage;
the risk the reporting entity may reasonably face that the provision by the reporting entity of designated services at or through a permanent establishment of the reporting entity in Australia might (whether inadvertently or otherwise) involve or facilitate:
(iv) money laundering; or
(v) financing of terrorism; and
(b) if the reporting entity provides designated services at or through a permanent establishment of the reporting entity in a foreign country—another purpose of which is to ensure that the reporting entity takes such action (if any) as is specified in the AML/CTF Rules in relation to the provision by the reporting entity of designated services at or through a permanent establishment of the reporting entity in a foreign country; and
(c) that complies with such requirements (if any) as are specified in the AML/CTF Rules.
Part B (customer identification)
(3) Part B of a standard anti‑money laundering and counter‑terrorism financing program is a part:
(a) the sole or primary purpose of which is to set out the applicable customer identification procedures for the purposes of the application of this Act to customers of the reporting entity; and
(b) that complies with such requirements (if any) as are specified in the AML/CTF Rules.
Reviews
(4) A requirement under paragraph (2)(c) may relate to reviews of a standard anti‑money laundering and counter‑terrorism financing program.
Holder of an Australian financial services licence
(5) A reporting entity is not entitled to adopt or maintain a standard anti‑money laundering and counter‑terrorism financing program if all of the designated services provided by the reporting entity are covered by item 54 of table 1 in section 6.
Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
Registered remittance affiliates of a registered remittance network provider
(5A) A reporting entity that is a registered remittance network provider must make available a standard anti‑money laundering and counter‑terrorism financing program to its registered remittance affiliates for the purpose of adoption and maintenance under section 81 by those affiliates. To avoid doubt, this subsection does not prevent a remittance affiliate from adopting a program other than one made available under this section.
Civil penalty
(5B) Subsection (5A) is a civil penalty provision.
Variation
(6) A standard anti‑money laundering and counter‑terrorism financing program may be varied, so long as the varied program is a standard anti‑money laundering and counter‑terrorism financing program.
Registered scheme—compliance plan
(7) If a reporting entity is the responsible entity of a registered scheme (within the meaning of the Corporations Act 2001), the reporting entity’s standard anti‑money laundering and counter‑terrorism financing program may be set out in the same document as the registered scheme’s compliance plan under that Act.
85 Joint anti‑money laundering and counter‑terrorism financing program
(1) A joint anti‑money laundering and counter‑terrorism financing program is a written program that:
(a) applies to each reporting entity that from time to time belongs to a particular designated business group; and
(b) is divided into the following parts:
(i) Part A (general);
(ii) Part B (customer identification).
Note: A joint anti‑money laundering and counter‑terrorism financing program does not bind any of those reporting entities unless the reporting entity adopts the program (see section 82).
Part A (general)
(2) Part A of a joint anti‑money laundering and counter‑terrorism financing program is a part:
(a) the primary purpose of which is to:
(i) identify; and
(ii) mitigate; and
(iii) manage;
the risk each of those reporting entities may reasonably face that the provision by the relevant reporting entity of designated services at or through a permanent establishment of the relevant reporting entity in Australia might (whether inadvertently or otherwise) involve or facilitate:
(iv) money laundering; or
(v) financing of terrorism; and
(b) if any of those reporting entities provides designated services at or through a permanent establishment of the relevant reporting entity in a foreign country—another purpose of which is to ensure that the relevant reporting entity takes such action (if any) as is specified in the AML/CTF Rules in relation to the provision by the relevant reporting entity of designated services at or through a permanent establishment of the relevant reporting entity in a foreign country; and
(c) that complies with such requirements (if any) as are specified in the AML/CTF Rules.
Part B (customer identification)
(3) Part B of a joint anti‑money laundering and counter‑terrorism financing program is a part:
(a) the sole or primary purpose of which is to set out the applicable customer identification procedures for the purposes of the application of this Act to customers of each of those reporting entities; and
(b) that complies with such requirements (if any) as are specified in the AML/CTF Rules.
Different reporting entities
(4) A joint anti‑money laundering and counter‑terrorism financing program may make different provision with respect to different reporting entities. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
Reviews
(5) A requirement under paragraph (2)(c) may relate to reviews of a joint anti‑money laundering and counter‑terrorism financing program.
Variation
(7) A joint anti‑money laundering and counter‑terrorism financing program may be varied, so long as the varied program is a joint anti‑money laundering and counter‑terrorism financing program.
86 Special anti‑money laundering and counter‑terrorism financing program
(1) A special anti‑money laundering and counter‑terrorism financing program is a written program:
(a) that applies to a particular reporting entity, where all of the designated services provided by the reporting entity are covered by item 54 of table 1 in section 6; and
(b) the sole or primary purpose of which is to set out the applicable customer identification procedures for the purposes of the application of this Act to customers of the reporting entity; and
(c) that complies with such requirements (if any) as are specified in the AML/CTF Rules.
Note 1: A special anti‑money laundering and counter‑terrorism financing program does not bind the reporting entity unless the reporting entity adopts the program (see section 82).
Note 2: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.
(2) A reporting entity is not entitled to adopt or maintain a special anti‑money laundering and counter‑terrorism financing program unless all of the designated services provided by the reporting entity are covered by item 54 of table 1 in section 6.
Variation
(3) A special anti‑money laundering and counter‑terrorism financing program may be varied, so long as the varied program is a special anti‑money laundering and counter‑terrorism financing program.
87 Revocation of adoption of anti‑money laundering and counter‑terrorism financing program
If a reporting entity has adopted an anti‑money laundering and counter‑terrorism financing program that applies to the reporting entity, this Part does not prevent the reporting entity from:
(a) revoking that adoption; and
(b) adopting another anti‑money laundering and counter‑terrorism financing program that applies to the reporting entity.
88 Different applicable customer identification procedures
(1) Each of the following:
(a) Part B of a standard anti‑money laundering and counter‑terrorism financing program;
(b) Part B of a joint anti‑money laundering and counter‑terrorism financing program;
(c) a special anti‑money laundering and counter‑terrorism financing program;
(d) AML/CTF Rules made for the purposes of paragraph 84(3)(b), 85(3)(b) or 86(1)(c);
may make different provision with respect to:
(e) different kinds of customers; or
(f) different kinds of designated services; or
(g) different circumstances.
(2) Subsection (1) does not limit subsection 33(3A) of the Acts Interpretation Act 1901.
Note: The following are examples of different kinds of customers:
(a) individuals;
(b) companies;
(c) trusts;
(d) partnerships.
89 Applicable customer identification procedures—agent of customer
Standard anti‑money laundering and counter‑terrorism financing program
(1) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 84(3)(b) may require that Part B of a standard anti‑money laundering and counter‑terrorism financing program must provide that, if:
(a) a customer of the reporting entity deals with the reporting entity in relation to the provision of a designated service through an agent of the customer; and
(b) the customer does so in circumstances specified in the AML/CTF Rules;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to the agent.
Joint anti‑money laundering and counter‑terrorism financing program
(2) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 85(3)(b) may require that Part B of a joint anti‑money laundering and counter‑terrorism financing program must provide that, if:
(a) a customer of the reporting entity deals with the reporting entity in relation to the provision of a designated service through an agent of the customer; and
(b) the customer does so in circumstances specified in the AML/CTF Rules;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to the agent.
Special anti‑money laundering and counter‑terrorism financing program
(3) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 86(1)(c) may require that a special anti‑money laundering and counter‑terrorism financing program must provide that, if:
(a) a customer of the reporting entity deals with the reporting entity in relation to the provision of a designated service through an agent of the customer; and
(b) the customer does so in circumstances specified in the AML/CTF Rules;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to the agent.
90 Applicable customer identification procedures—customers other than individuals
Standard anti‑money laundering and counter‑terrorism financing program
(1) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 84(3)(b) may require that Part B of a standard anti‑money laundering and counter‑terrorism financing program must provide that, if a customer of the reporting entity is:
(a) a company; or
(b) a trust; or
(c) a partnership; or
(d) a corporation sole; or
(e) a body politic;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to a person who is:
(f) associated with the customer; and
(g) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Joint anti‑money laundering and counter‑terrorism financing program
(2) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 85(3)(b) may require that Part B of a joint anti‑money laundering and counter‑terrorism financing program must provide that, if a customer of the reporting entity is:
(a) a company; or
(b) a trust; or
(c) a partnership; or
(d) a corporation sole; or
(e) a body politic;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to a person who is:
(f) associated with the customer; and
(g) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Special anti‑money laundering and counter‑terrorism financing program
(3) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 86(1)(c) may require that a special anti‑money laundering and counter‑terrorism financing program must provide that, if a customer of the reporting entity is:
(a) a company; or
(b) a trust; or
(c) a partnership; or
(d) a corporation sole; or
(e) a body politic;
one or more elements of the applicable customer identification procedure for the customer must involve the taking of steps specified in the AML/CTF Rules in relation to a person who is:
(f) associated with the customer; and
(g) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
91 Applicable customer identification procedures—disclosure certificates
Standard anti‑money laundering and counter‑terrorism financing program
(1) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 84(3)(b) may require that, if:
(a) a designated service is provided to a customer specified in the AML/CTF Rules; or
(b) a designated service is provided to a customer in circumstances specified in the AML/CTF Rules;
Part B of a standard anti‑money laundering and counter‑terrorism financing program must provide that one or more elements of the applicable customer identification procedure for the customer must involve the reporting entity obtaining a certificate, to be known as a disclosure certificate, from:
(c) the customer; or
(d) person who is:
(i) associated with the customer; and
(ii) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Joint anti‑money laundering and counter‑terrorism financing program
(2) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 85(3)(b) may require that, if:
(a) a designated service is provided to a customer specified in the AML/CTF Rules; or
(b) a designated service is provided to a customer in circumstances specified in the AML/CTF Rules;
Part B of a joint anti‑money laundering and counter‑terrorism financing program must provide that one or more elements of the applicable customer identification procedure for the customer must involve the reporting entity obtaining a certificate, to be known as a disclosure certificate, from:
(c) the customer; or
(d) person who is:
(i) associated with the customer; and
(ii) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Special anti‑money laundering and counter‑terrorism financing program
(3) To avoid doubt, AML/CTF Rules made for the purposes of paragraph 86(1)(c) may require that, if:
(a) a designated service is provided to a customer specified in the AML/CTF Rules; or
(b) a designated service is provided to a customer in circumstances specified in the AML/CTF Rules;
a special anti‑money laundering and counter‑terrorism financing program must provide that one or more elements of the applicable customer identification procedure for the customer must involve the reporting entity obtaining a certificate, to be known as a disclosure certificate, from:
(c) the customer; or
(d) person who is:
(i) associated with the customer; and
(ii) specified in the AML/CTF Rules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Division 4—Other provisions
92 Request to obtain information from a customer
Scope
(1) This section applies to a reporting entity if:
(a) the reporting entity has adopted:
(i) a standard anti‑money laundering and counter‑terrorism financing program; or
(ii) a joint anti‑money laundering and counter‑terrorism financing program;
that applies to the reporting entity; and
(b) the reporting entity is providing, or has provided, a designated service to a particular customer; and
(c) the reporting entity has reasonable grounds to believe that the customer has information that is likely to assist the reporting entity to comply with:
(i) Part A of the program; or
(ii) if the program has been varied on one or more occasions—Part A of the program as varied.
Request to give information
(2) The reporting entity may, by written notice given to the customer, request the customer to give the reporting entity, within the period and in the manner specified in the notice, any such information.
(3) The notice must set out the effect of subsection (4).
Power to discontinue, restrict or limit provision of designated services
(4) If the customer does not comply with the request, the reporting entity may do any or all of following:
(a) refuse to continue to provide a designated service to the customer;
(b) refuse to commence to provide a designated service to the customer;
(c) restrict or limit the provision of a designated service to the customer;
until the customer provides the information covered by the request.
Protection from liability
(5) An action, suit or proceeding (whether criminal or civil) does not lie against:
(a) the reporting entity; or
(b) an officer, employee or agent of the reporting entity acting in the course of his or her office, employment or agency;
in relation to anything done, or omitted to be done, in good faith by the reporting entity, officer, employee or agent in the exercise, or purported exercise, of the power conferred by subsection (4).
93 Exemptions
(1) Paragraphs 84(2)(a) and (b) and 85(2)(a) and (b) do not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(2) Paragraphs 84(2)(a) and (b) and 85(2)(a) and (b) do not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
Part 8—Correspondent banking
94 Simplified outline of this Part
• A financial institution must not enter into a correspondent banking relationship with:
(a) a shell bank; or
(b) another financial institution that has a correspondent banking relationship with a shell bank; or
(c) another financial institution that permits its accounts to be used by a shell bank.
• A financial institution must carry out due diligence assessments before it enters into, and while it is in, a correspondent banking relationship with another financial institution involving a vostro account.
95 Prohibitions on correspondent banking relationships involving shell banks
Entry
(1) A financial institution must not enter into a correspondent banking relationship with another person if:
(a) the other person is a shell bank; or
(b) the other person is a financial institution that has a correspondent banking relationship with a shell bank; or
(c) the other person is a financial institution that permits its accounts to be used by a shell bank.
Note: For geographical links, see section 100.
Termination
(2) If a financial institution (the first institution) is in a correspondent banking relationship with another person and the first institution becomes aware that:
(a) the other person is a shell bank; or
(b) the other person is a financial institution that has a correspondent banking relationship with a shell bank; or
(c) the other person is a financial institution that permits its accounts to be used by a shell bank;
the first institution must, within 20 days after becoming so aware or such longer period (if any) as the AUSTRAC CEO allows, do one of the following:
(d) terminate the correspondent banking relationship;
(e) if paragraph (b) applies—request the other financial institution to terminate the correspondent banking relationship mentioned in that paragraph.
Note: For geographical links, see section 100.
(3) If:
(a) the first institution makes a request under paragraph (2)(e) of another financial institution; and
(b) at the end of the period (the first period) of 20 business days after the request was made, the other financial institution has not complied with the request;
the first institution must terminate its correspondent banking relationship with the other financial institution within 20 days after the end of the first period or such longer period (if any) as the AUSTRAC CEO allows.
Note: For geographical links, see section 100.
Civil penalty
(4) Subsections (1), (2) and (3) are civil penalty provisions.
96 Due diligence assessments and records of correspondent banking relationships
Entry
(1) A financial institution (the first institution) must not enter into a correspondent banking relationship with another financial institution that will involve a vostro account unless:
(a) the first institution carries out a due diligence assessment in accordance with the AML/CTF Rules and prepares a written record of the assessment; and
(b) a senior officer of the first institution approves the entering into of that relationship, having regard to such matters (if any) as are specified in the AML/CTF Rules.
Note: For geographical links, see section 100.
(2) If a financial institution (the first institution) enters into a correspondent banking relationship with another financial institution that involves a vostro account, the first institution must, within 20 business days after the day of entering into the relationship, prepare a written record that sets out:
(a) its responsibilities under that relationship; and
(b) the responsibilities of the other financial institution under that relationship.
Ongoing assessments
(3) If a financial institution (the first institution) is in a correspondent banking relationship with another financial institution that involves a vostro account, the first institution must:
(a) carry out due diligence assessments in accordance with the AML/CTF Rules; and
(b) carry out those assessments at the times worked out in accordance with the AML/CTF Rules; and
(c) in relation to each assessment, prepare a written record of the assessment within 10 business days after the day of completing the assessment; and
(d) in relation to each assessment, ensure that, within 20 business days after the preparation of the written record, a senior officer of the first institution reviews the written record and makes a decision about whether the first institution should remain in a correspondent banking relationship with the other financial institution.
Note: For geographical links, see section 100.
Civil penalty
(4) Subsections (1), (2) and (3) are civil penalty provisions.
100 Geographical links
A financial institution is not subject to a requirement under this Part in connection with a correspondent banking relationship the financial institution has, or proposes to have, with another person unless:
(a) the financial institution carries on an activity or business at or through a permanent establishment of the financial institution in Australia; or
(b) both:
(i) the financial institution is a resident of Australia; and
(ii) the financial institution carries on an activity or business at or through a permanent establishment of the financial institution in a foreign country; or
(c) both:
(i) the financial institution is a subsidiary of a company that is a resident of Australia; and
(ii) the financial institution carries on an activity or business at or through a permanent establishment of the financial institution in a foreign country.
Note: For resident, see section 14.
Part 9—Countermeasures
101 Simplified outline
The following is a simplified outline of this Part:
• The regulations may prohibit or regulate the entering into of transactions with residents of prescribed foreign countries.
102 Countermeasures
(1) The regulations may make provision for or in relation to prohibiting or regulating the entering into of transactions, where:
(a) both:
(i) one of the parties to the transaction is a resident of Australia; and
(ii) the other party, or any of the other parties, is a resident of a prescribed foreign country; or
(b) both:
(i) one of the parties to the transaction enters into the transaction in the course of carrying on an activity or business at or through a permanent establishment of the party in Australia; and
(ii) the other party, or any of the other parties, is a resident of a prescribed foreign country; or
(c) both:
(i) one of the parties to the transaction is a resident of Australia; and
(ii) the other party, or any of the other parties, is a corporation incorporated in a prescribed foreign country; or
(d) both:
(i) one of the parties to the transaction enters into the transaction in the course of carrying on an activity or business at or through a permanent establishment of the party in Australia; and
(ii) the other party, or any of the other parties, is a corporation incorporated in a prescribed foreign country; or
(e) both:
(i) one of the parties to the transaction is a resident of Australia; and
(ii) the other party, or any of the other parties, is an individual who is physically present in a prescribed foreign country; or
(f) both:
(i) one of the parties to the transaction enters into the transaction in the course of carrying on an activity or business at or through a permanent establishment of the party in Australia; and
(ii) the other party, or any of the other parties, is an individual who is physically present in a prescribed foreign country.
Note: For resident, see section 14.
(2) Regulations made for the purposes of subsection (1):
(a) may be of general application; or
(b) may be limited by reference to any or all of the following:
(i) a specified transaction;
(ii) a specified party;
(iii) a specified prescribed foreign country.
Note 1: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Note 2: For consultation requirements, see section 17 of the Legislation Act 2003.
103 Sunsetting of regulations after 2 years
Section 50 of the Legislation Act 2003 has effect, in relation to regulations made for the purposes of subsection 102(1), as if each reference in that section to tenth anniversary were read as a reference to second anniversary.
Part 10—Record‑keeping requirements
Division 1—Introduction
104 Simplified outline
The following is a simplified outline of this Part:
• The AML/CTF Rules may provide that a reporting entity must make a record of a designated service. The reporting entity must retain the record for 7 years.
• If a customer of a reporting entity gives the reporting entity a document relating to the provision of a designated service, the reporting entity must retain the document for 7 years.
• A reporting entity must retain records relating to:
(a) applicable customer identification procedures it carries out or that it is taken to have carried out; and
(b) assessments it carries out of agreements or arrangements it has entered into relating to its reliance on applicable customer identification procedures, or other procedures, carried out by another person.
• A reporting entity must retain a copy of its anti‑money laundering and counter‑terrorism financing program.
105 Privacy Act not overridden by this Part
This Part does not override Part IIIA of the Privacy Act 1988.
Division 2—Records of transactions etc.
106 Records of designated services
(1) The AML/CTF Rules may provide that, if a reporting entity commences to provide, or provides, a specified kind of designated service to a customer, the reporting entity must make a record of information relating to the provision of the service.
(2) The AML/CTF Rules may provide that, if a reporting entity commences to provide, or provides, a designated service to a customer in circumstances specified in the AML/CTF Rules, the reporting entity must make a record of information relating to the provision of the service.
(3) A record under subsection (1) or (2) must comply with such requirements (if any) as are specified in the AML/CTF Rules.
(4) A reporting entity must comply with AML/CTF Rules made for the purposes of this section.
Civil penalty
(5) Subsection (4) is a civil penalty provision.
Designated business groups
(6) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (4) may be discharged by any other member of the group.
107 Transaction records to be retained
Scope
(1) This section applies if:
(a) a reporting entity makes a record of information relating to the provision of a designated service to a customer; and
(b) the record is not declared by the AML/CTF Rules to be exempt from this section.
Retention
(2) The reporting entity must retain:
(a) the record; or
(b) a copy of the record; or
(c) an extract from the record showing the prescribed information;
for 7 years after the making of the record.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Designated business groups
(4) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2) may be discharged by any other member of the group.
108 Customer‑provided transaction documents to be retained
Scope
(1) This section applies if:
(a) a document relating to the provision, or prospective provision, of a designated service by a reporting entity is given to the reporting entity by or on behalf of the customer concerned; and
(b) the reporting entity commences, or has commenced, to provide the service to the customer.
(2) The reporting entity must retain:
(a) the document; or
(b) a copy of the document;
for 7 years after the giving of the document.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Designated business groups
(4) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2) may be discharged by any other member of the group.
109 Records relating to transferred ADI accounts
Scope
(1) This section applies if:
(a) a document is in the possession of an ADI (the transferor ADI) in fulfilment of an obligation imposed on it by section 107 or 108; 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.
Transferor ADI must give document to the transferee ADI
(2) The transferor ADI must give the document to the transferee ADI within the 120‑day period beginning 30 days before the transfer of the account.
Transferor ADI released from retention obligations
(3) Sections 107 and 108 do not apply to the transferor ADI, in relation to the document, if the transferor ADI gave the original or a copy 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 matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Retention obligations of transferee ADI
(4) If the transferee ADI is given the document within the 120‑day period beginning 30 days before the transfer of the account, the transferee ADI must retain:
(a) the document; or
(b) a copy of the document;
for 7 years after the giving of the document.
Civil penalty
(5) Subsections (2) and (4) are civil penalty provisions.
110 Retention of records relating to closed ADI accounts
Transferor ADI may give documents to transferee ADI
(1) 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 109; and
(b) the second document is in the transferor ADI’s possession in fulfilment of an obligation imposed on it by section 107 or 108; 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 allowed by section 109 for the giving of the first document.
Transferor ADI released from retention obligations
(2) Sections 107 and 108 do not apply to the transferor ADI, in relation to the second document, if the transferor ADI gave the original or a copy of the second document to the transferee ADI within the 120‑day period allowed by section 109 for the giving of the first document.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Retention obligations of transferee ADI
(3) If the transferee ADI is given the original or a copy of the second document within the 120‑day period allowed by section 109 for the giving of the first document, the transferee ADI must retain:
(a) the second document; or
(b) a copy of the second document;
for 7 years after the giving of the second document.
Civil penalty
(4) Subsection (3) is a civil penalty provision.
Division 3—Records in connection with the carrying out of identification procedures
111 Copying documents obtained in the course of carrying out an applicable custom identification procedure
For the purposes of this Act, if:
(a) a document is produced to a reporting entity in the course of an applicable customer identification procedure carried out under this Act; and
(b) the reporting entity makes a copy of the document;
the reporting entity is taken to have made a record of the information contained in the document.
112 Making of records of identification procedures
Scope
(1) This section applies to a reporting entity if the reporting entity carries out an applicable customer identification procedure in respect of a particular customer to whom the reporting entity provided, or proposed to provide, a designated service.
Records
(2) The reporting entity must make a record of:
(a) the procedure; and
(b) information obtained in the course of carrying out the procedure; and
(c) such other information (if any) about the procedure as is specified in the AML/CTF Rules.
(3) A record under subsection (2) must comply with such requirements (if any) as are specified in the AML/CTF Rules.
Civil penalty
(4) Subsection (2) is a civil penalty provision.
Designated business groups
(5) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2) may be discharged by any other member of the group.
113 Retention of records of identification procedures
Scope
(1) This section applies to a reporting entity if:
(a) the reporting entity carried out an applicable customer identification procedure in respect of a particular customer to whom the reporting entity provided, or proposed to provide, a designated service; and
(b) the reporting entity made a record of:
(i) the procedure; or
(ii) information obtained in the course of carrying out the procedure; or
(iii) such other information (if any) about the procedure as is specified in the AML/CTF Rules.
Retention
(2) The reporting entity must retain the record, or a copy of the record, until the end of the first 7‑year period:
(a) that began at a time after the procedure was carried out; and
(b) throughout the whole of which the reporting entity did not provide any designated services to the customer.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Designated business groups
(4) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2) may be discharged by any other member of the group.
114 Retention of information if identification procedures taken to have been carried out by a reporting entity
(1) If:
(a) a person (the first person) carries out a procedure (the initial procedure) mentioned in paragraph 37A(1)(a) or 38(b); and
(b) under section 37A or 38 and in connection with the initial procedure, Part 2 has effect as if a reporting entity had carried out an applicable customer identification procedure in respect of a customer; and
(c) the first person makes a record of the initial procedure and gives a copy of the record to the reporting entity;
the reporting entity must retain the copy until the end of the first 7‑year period:
(d) that began at a time after Part 2 had that effect; and
(e) throughout the whole of which the reporting entity did not provide any designated services to the customer.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
114A Retention of records of assessments of agreements or arrangements covered by section 37A
(1) If a reporting entity prepares a record under paragraph 37B(1)(c), the reporting entity must retain the record, or a copy of the record, for 7 years after the completion of the preparation of the record.
Civil penalty
(2) Subsection (1) is a civil penalty provision.
Division 4—Records about electronic funds transfer instructions
115 Retention of records about electronic funds transfer instructions
Scope
(1) This section applies if:
(a) section 64 applies to:
(i) a multiple‑institution person‑to‑person electronic funds transfer instruction; or
(ii) a multiple‑institution same‑person electronic funds transfer instruction; and
(b) a person is in the funds transfer chain; and
(c) the person is an interposed person and the transfer instruction is to be passed on by the person at or through a permanent establishment of the person in Australia; and
(d) the making available by the beneficiary institution of the transferred money would take place at or through a permanent establishment of the beneficiary institution in Australia; and
(e) some or all of the required transfer information was passed on to the person by another person in the funds transfer chain; and
(f) the transfer instruction was accepted by the ordering institution at or through a permanent establishment of the ordering institution in a foreign country; and
(g) the transfer instruction was passed on to the person by a permanent establishment of the ordering institution, or of another person, in a foreign country.
Keeping and retention of records
(2) The person must:
(a) make a record of so much of the required transfer information as was passed on to the person as mentioned in paragraph (1)(e); and
(b) retain that record, or a copy of the record, for 7 years after the transfer instruction was passed on to the person.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Division 5—Records about anti‑money laundering and counter‑terrorism financing programs
116 Records about anti‑money laundering and counter‑terrorism financing programs
Scope
(1) This section applies to a reporting entity if the reporting entity adopts an anti‑money laundering and counter‑terrorism financing program that applies to the reporting entity.
Record of adoption
(2) The reporting entity must:
(a) make a record of the adoption; and
(b) retain the record, or a copy of the record, throughout the period:
(i) beginning at the completion of the preparation of the record; and
(ii) ending 7 years after the day on which the adoption ceases to be in force.
Retention of program etc.
(3) The reporting entity must retain the program, or a copy of the program, throughout the period:
(a) beginning at the time of the adoption; and
(b) ending 7 years after the day on which the adoption ceases to be in force.
(4) If the program is varied while the adoption is in force, the reporting entity must retain the variation, or a copy of the variation, throughout the period:
(a) beginning at the time of the variation; and
(b) ending 7 years after the day on which the adoption ceases to be in force.
Civil penalty
(5) Subsections (2), (3) and (4) are civil penalty provisions.
Designated business groups
(6) If:
(a) a reporting entity is a member of a designated business group; and
(b) such other conditions (if any) as are specified in the AML/CTF Rules are satisfied;
the obligation imposed on the reporting entity by subsection (2), (3) or (4) may be discharged by any other member of the group.
Division 6—Records about correspondent banking relationships
117 Retention of records about correspondent banking relationships
Scope
(1) This section applies to a financial institution if the financial institution prepared a record under section 96.
Retention
(2) The financial institution must retain the record, or a copy of the record, for 7 years after the completion of the preparation of the record.
Civil penalty
(3) Subsection (2) is a civil penalty provision.
Division 7—General provisions
118 Exemptions
(1) This Part (other than sections 109, 110, 115, 116 and 117) does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(2) The AML/CTF Rules may provide that a specified provision of this Part (other than sections 109, 110, 115, 116 and 117) does not apply to a designated service that is of a kind specified in the AML/CTF Rules.
(3) This Part (other than sections 109, 110, 115, 116 and 117) does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(4) The AML/CTF Rules may provide that a specified provision of this Part (other than sections 109, 110, 115, 116 and 117) does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.
(5) This Part (other than sections 109, 110, 115, 116 and 117) does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the reporting entity in a foreign country.
119 This Part does not limit any other obligations
This Part does not limit any other obligation of a person to make records or retain documents.
Part 11—Secrecy and access
Division 1—Introduction
120 Simplified outline of this Part
• Except as permitted by this Act, an AUSTRAC entrusted person must not access, make a record of, authorise access to, disclose or otherwise use AUSTRAC information.
• A reporting entity must not disclose:
(a) that the reporting entity has given, or is required to give, a report under subsection 41(2); or
(b) any information from which it could reasonably be inferred that the reporting entity has given, or is required to give, that report.
• The AUSTRAC CEO may authorise officials of Commonwealth, State or Territory agencies to access AUSTRAC information for the purposes of performing the agency’s functions and duties and exercising the agency’s powers.
• In certain circumstances, AUSTRAC information may be disclosed to governments of foreign countries or to foreign agencies.
• There are restrictions on persons using or disclosing AUSTRAC information where the information was disclosed to the persons in contravention of this Part.
Division 2—AUSTRAC entrusted persons
121 Offence—AUSTRAC entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an AUSTRAC entrusted person; and
(b) the person accesses, makes a record of, authorises access to, discloses or otherwise uses information; and
(c) the information is AUSTRAC information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exceptions
(2) Subsection (1) does not apply if the access, making of the record, authorisation of the access, disclosure or use:
(a) is for the purposes of this Act or the Financial Transaction Reports Act 1988; or
(b) is for the purposes of the performance of the functions of the AUSTRAC CEO; or
(c) is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers in relation to AUSTRAC; or
(d) is in accordance with a provision of this Part; or
(e) is for the purposes of the National Anti‑Corruption Commission Act 2022.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply if the disclosure is:
(a) to an official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the official’s functions, duties or powers in relation to the agency; or
(b) to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister’s responsibilities.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Conditions
(4) If:
(a) a person who is an AUSTRAC entrusted person discloses AUSTRAC information to another person under this section; and
(b) the other person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory;
the AUSTRAC CEO may, in writing and at the time of the disclosure, impose conditions to be complied with in relation to the making of a record, disclosure or use of the information by the other person.
Secondary dealings
(5) A person commits an offence if:
(a) the person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory; and
(b) AUSTRAC information is disclosed to the person under subsection (2); and
(c) the person is not subject to conditions under subsection (4) in relation to the information; and
(d) the person discloses the information to another person.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(6) A person commits an offence if:
(a) the person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory; and
(b) AUSTRAC information is disclosed to the person under subsection (2); and
(c) the person is subject to conditions under subsection (4) in relation to the information; and
(d) the person makes a record of, discloses or otherwise uses the information; and
(e) the making of the record, disclosure or use referred to in paragraph (d) breaches any of those conditions.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Instrument not a legislative instrument
(7) An instrument under subsection (4) is not a legislative instrument.
Division 3—Protection of information given under Part 3
123 Offence of tipping off
Prohibitions
(1) A reporting entity must not disclose to a person other than an AUSTRAC entrusted person:
(a) that the reporting entity has given, or is required to give, a report under subsection 41(2); or
(b) any information from which it could reasonably be inferred that the reporting entity has given, or is required to give, that report.
(2) If:
(a) a reporting entity gives a report to the AUSTRAC CEO under section 41, 43 or 45; and
(b) in connection with that report, the reporting entity (the recipient) or another person (also the recipient) is required by a notice under subsection 49(1) to give information or produce a document;
the recipient must not disclose to a person (except an AUSTRAC entrusted person, the person who gave the notice or any other person who has given a notice to the recipient under subsection 49(1) in connection with that report):
(c) that the recipient is or has been required by a notice under subsection 49(1) to give information or produce a document; or
(d) that the information has been given or the document has been produced; or
(e) any information from which it could reasonably be inferred that:
(i) the recipient had been required under subsection 49(1) to give information or produce a document; or
(ii) the information had been given under subsection 49(1); or
(iii) the document had been produced under subsection 49(1).
Exception—crime prevention
(4) Subsection (1) does not apply to the disclosure of information by a reporting entity if:
(a) the reporting entity is:
(i) a legal practitioner (however described); or
(ii) a partnership or company that carries on a business of using legal practitioners (however described) to supply professional legal services; or
(iii) a qualified accountant; or
(iv) a partnership or company that carries on a business of using qualified accountants to supply professional accountancy services; or
(v) a person specified in the AML/CTF Rules; and
(b) the information relates to the affairs of a customer of the reporting entity; and
(c) the disclosure is made for the purposes of dissuading the customer from engaging in conduct that constitutes, or could constitute:
(i) evasion of a taxation law; or
(ii) evasion of a law of a State or Territory that deals with taxation; or
(iii) an offence against a law of the Commonwealth or of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Exception—legal advice
(5) Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to a legal practitioner (however described) for the purpose of obtaining legal advice.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(5A) A person to whom information has been disclosed under subsection (5) must not disclose the information to another person.
Exception—audit or review of anti‑money laundering and counter‑terrorism financing program
(5B) Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to a person appointed or engaged by the reporting entity to audit or review the reporting entity’s anti‑money laundering and counter‑terrorism financing program.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5B) (see subsection 13.3(3) of the Criminal Code).
(5C) A person to whom information has been disclosed under subsection (5B) must not disclose the information unless the disclosure is made to another person in connection with the audit or review of the reporting entity’s anti‑money laundering and counter‑terrorism financing program.
Exception—Charter of the United Nations Act 1945
(6) Subsection (1) does not apply to the disclosure of information about the operation of Part 4 of the Charter of the United Nations Act 1945.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Exception—members of a corporate group
(7) Subsection (1) does not apply to the disclosure of information by a reporting entity (the first entity) if:
(a) the first entity belongs to a corporate group; and
(b) the information relates to the affairs of a person (the relevant person) who is, or was, a customer of the first entity or who made inquiries referred to in subparagraph 41(1)(c)(i) of the first entity; and
(c) the disclosure is made to a body corporate (the related body corporate) that belongs to the corporate group; and
(d) the related body corporate is a reporting entity or is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations; and
(e) if the related body corporate is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations—the related body corporate has given the first entity a written undertaking for:
(i) protecting the confidentiality of information that may be disclosed to the related body corporate under this subsection; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the related body corporate; and
(f) the disclosure is made for the purpose of informing the related body corporate about the risks involved in dealing with the relevant person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
(7AA) A reporting entity to whom information has been disclosed under subsection (7) must not disclose the information unless:
(a) the disclosure is made to another reporting entity that belongs to the corporate group; and
(b) the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the relevant person.
Exception—members of a designated business group
(7AB) Subsection (1) does not apply to the disclosure of information by a reporting entity (the first entity) if:
(a) the first entity belongs to a designated business group; and
(b) the information relates to the affairs of a person (the relevant person) who is, or was, a customer of the first entity or who made inquiries referred to in subparagraph 41(1)(c)(i) of the first entity; and
(c) the disclosure is made to another person (the related person) that belongs to the designated business group; and
(d) the related person is a reporting entity or is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations; and
(e) if the related person is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations—the related person has given the first entity a written undertaking for:
(i) protecting the confidentiality of information that may be disclosed to the related person under this subsection; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the related person; and
(f) the disclosure is made for the purpose of informing the related person about the risks involved in dealing with the relevant person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7AB) (see subsection 13.3(3) of the Criminal Code).
(7AC) A reporting entity to whom information has been disclosed under subsection (7AB) must not disclose the information unless:
(a) the disclosure is made to another reporting entity that belongs to the designated business group; and
(b) the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the relevant person.
Exception—remittance sector
(7A) Subsection (1) does not apply to the disclosure of information by a reporting entity if:
(a) the reporting entity is a registered remittance affiliate of a registered remittance network provider and the disclosure is made to the registered remittance network provider; or
(b) the reporting entity is a registered remittance network provider and the disclosure is made to a registered remittance affiliate of the registered remittance network provider.
(7B) A reporting entity to whom information has been disclosed under subsection (7A) must not disclose the information to another person.
Exception—ADI
(8) Subsection (1) does not apply to the disclosure of information by a reporting entity if:
(a) the reporting entity is an ADI; and
(b) the disclosure is to an owner‑managed branch of the ADI.
(8A) A person to whom information has been disclosed under subsection (8) must not disclose the information to another person.
Exception—compliance with the law or law enforcement
(9) Subsection (1) does not apply to the disclosure of information by a reporting entity if:
(a) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory; or
(b) the disclosure is to an Australian government body that has responsibility for law enforcement.
Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).
Courts or tribunals
(10) Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988, a reporting entity is not to be required to disclose to a court or tribunal information mentioned in subsection (1) or (2).
Offence
(11) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (2), (5A), (5C), (7AA), (7AC), (7B) or (8A); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty for contravention of this subsection: Imprisonment for 2 years or 120 penalty units, or both.
Definition
(12) In this Act:
corporate group means a group of 2 or more bodies corporate that are related to each other under section 50 of the Corporations Act 2001.
124 Report and information not admissible
(1) In any court or tribunal proceedings:
(a) none of the following is admissible in evidence:
(i) a report given under, or prepared for the purposes of, subsection 41(2);
(ii) a copy of such a report;
(iii) a document purporting to set out information (including the formation or existence of a suspicion) contained in such a report;
(iv) a document given or produced under subsection 49(1), in so far as that subsection relates to a communication under section 41; and
(b) evidence is not admissible as to:
(i) whether or not a report was prepared for the purposes of subsection 41(2); or
(ii) whether or not a report prepared for the purposes of subsection 41(2), or a document purporting to set out information (including the formation or existence of a suspicion) contained in such a report, was given to, or received by, the AUSTRAC CEO; or
(iii) whether or not particular information (including the formation or existence of a suspicion) was contained in a report prepared for the purposes of subsection 41(2); or
(iv) whether or not particular information (including the formation or existence of a suspicion) was given under subsection 49(1), in so far as that subsection relates to a communication under section 41; or
(v) whether or not a particular document was produced under subsection 49(1), in so far as that subsection relates to a communication under section 41.
(2) Subsection (1) does not apply to the following proceedings:
(a) criminal proceedings for an offence against section 121, 123, 126, 128, 129, 136, 137, 161, 162 or 165 of this Act;
(b) criminal proceedings for an offence against section 29 or 30 of the Financial Transaction Reports Act 1988;
(c) proceedings under section 175 of this Act.
Division 4—Access to AUSTRAC information by Commonwealth, State or Territory agencies
125 Access to AUSTRAC information
(1) The AUSTRAC CEO may, in writing, authorise specified officials of a specified Commonwealth, State or Territory agency to access specified AUSTRAC information for the purposes of performing the agency’s functions and duties and exercising the agency’s powers.
Note 1: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) However, the AUSTRAC CEO may give an authorisation under subsection (1) in relation to an agency, authority, body or organisation of a State or Territory only if its head (however described) has given a written undertaking to the AUSTRAC CEO that it and its officials will comply with the Australian Privacy Principles in respect of AUSTRAC information obtained under subsection 121(2) or (3), this section or subsection 126(2).
Authorisation not a legislative instrument
(3) An authorisation under subsection (1) is not a legislative instrument.
126 Dealings with AUSTRAC information
(1) A person commits an offence if:
(a) the person is, or has been, an official of a Commonwealth, State or Territory agency; and
(b) the person has obtained AUSTRAC information under subsection 121(2) or (3), section 125 or subsection (2) of this section; and
(c) the person makes a record of, discloses or otherwise uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exception—functions, duties or powers of officials etc.
(2) Subsection (1) does not apply if:
(a) the making of the record, disclosure or use is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers as an official of a Commonwealth, State or Territory agency; or
(b) the disclosure is to another official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the other official’s functions, duties or powers in relation to the agency; or
(c) the disclosure is to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister’s responsibilities; or
(d) the disclosure is in accordance with section 127.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Exception—court or tribunal proceedings etc.
(3) Subject to subsection (3A), subsection (1) does not apply if the disclosure is to a person for the purposes of or in connection with:
(a) court or tribunal proceedings; or
(b) proposed or possible court or tribunal proceedings; or
(c) obtaining legal advice.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(3A) Subsection (3) does not apply if the AUSTRAC information:
(a) was obtained under section 41 (reports of suspicious matters); or
(b) was obtained under section 49 (further information to be given to the AUSTRAC CEO etc.), in so far as that section relates to a communication under section 41; or
(c) was obtained under section 16 of the Financial Transaction Reports Act 1988 (reports of suspect transactions).
Secondary disclosure
(4) A person commits an offence if:
(a) AUSTRAC information is disclosed to the person under subsection (3); and
(b) the person discloses the information to another person.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(5) Subsection (4) does not apply if:
(a) the disclosure is for the purposes of or in connection with:
(i) the court or tribunal proceedings; or
(ii) the proposed or possible court or tribunal proceedings; or
(iii) obtaining or giving the legal advice; or
(b) the disclosure is permitted by this Division.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Division 5—Disclosure of AUSTRAC information to foreign countries or agencies
127 Disclosure of AUSTRAC information to foreign countries or agencies
AUSTRAC CEO
(1) The AUSTRAC CEO may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the AUSTRAC CEO is satisfied that:
(a) where the AUSTRAC CEO considers it appropriate, the government of the foreign country, or the foreign agency, has given an undertaking for:
(i) protecting the confidentiality of the information; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and
(b) it is appropriate, in all the circumstances of the case, to do so.
Commonwealth, State or Territory agencies
(2) A person who is:
(a) the head (however described) of a Commonwealth, State or Territory agency referred to in subsection (3); or
(b) covered by an authorisation under subsection (4);
may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the person is satisfied that:
(c) the government of the foreign country, or the foreign agency, has given an undertaking for:
(i) protecting the confidentiality of the information; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and
(d) it is appropriate, in all the circumstances of the case, to do so.
List of agencies, authorities, bodies or organisations of the Commonwealth
(3) For the purposes of this section, the Commonwealth, State or Territory agencies are the following:
(a) the Department;
(b) the Attorney‑General’s Department;
(c) the Department of Foreign Affairs and Trade;
(d) the Australian Federal Police;
(e) the Australian Crime Commission;
(f) the Australian Prudential Regulation Authority;
(g) the Australian Securities and Investments Commission;
(h) the Australian Taxation Office;
(i) ASIO;
(j) ASIS;
(k) ASD;
(l) AGO;
(m) DIO;
(n) ONI;
(o) any other agency, authority, body or organisation of the Commonwealth that is prescribed by the AML/CTF Rules.
Note: See also the definition of agency in section 5.
Authorisations
(4) For the purposes of paragraph (2)(b), the head (however described) of a Commonwealth, State or Territory agency referred to in subsection (3) may, in writing, authorise an official of the Commonwealth, State or Territory agency.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(5) An authorisation under subsection (4) is not a legislative instrument.
Division 6—Unauthorised accessing of or use or disclosure of AUSTRAC information
128 Unauthorised accessing of AUSTRAC information
A person commits an offence if:
(a) the person accesses information; and
(b) the information is AUSTRAC information; and
(c) the access is not permitted by this Part.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
129 Use or disclosure of AUSTRAC information disclosed in contravention of this Part
(1) A person commits an offence if:
(a) information is disclosed to the person; and
(b) the information is AUSTRAC information; and
(c) the disclosure to the person is in contravention of this Part; and
(d) the person makes a record of, discloses or otherwise uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exception
(2) Subsection (1) does not apply if the person discloses the information for the purposes of an appropriate authority investigating the disclosure mentioned in paragraph (1)(c).
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Division 7—Use of AUSTRAC information in court or tribunal proceedings
134 Use of AUSTRAC information in court or tribunal proceedings
Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988, a person is not to be required:
(a) to produce a document containing AUSTRAC information to a court or tribunal; or
(b) to disclose AUSTRAC information to a court or tribunal.
Part 12—Offences
135 Simplified outline
The following is a simplified outline of this Part:
(a) produce false or misleading information; or
(b) produce a false or misleading document; or
(c) forge a document for use in an applicable customer identification procedure; or
(d) provide or receive a designated service using a false customer name or customer anonymity; or
(e) structure a transaction to avoid a reporting obligation under this Act.
136 False or misleading information
(1) A person commits an offence if:
(a) the person gives information to:
(i) the AUSTRAC CEO; or
(ii) an authorised officer; or
(iii) a customs officer; or
(iv) a police officer; or
(v) a reporting entity; or
(vi) a person acting on a reporting entity’s behalf; and
(b) the person does so knowing that the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is misleading; and
(c) the information is given, or purportedly given, under:
(i) this Act; or
(ii) a provision of the regulations or of the AML/CTF Rules, if the regulations or Rules (as applicable) state that this section applies to that provision.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Strict liability applies to the paragraph (1)(c) element of the offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
137 Producing false or misleading documents
(1) A person commits an offence if:
(a) the person produces a document to:
(i) the AUSTRAC CEO; or
(ii) an authorised officer; or
(iii) a customs officer; or
(iv) a police officer; or
(v) a reporting entity; or
(vi) a person acting on a reporting entity’s behalf; and
(b) the person does so knowing that the document is false or misleading; and
(c) the document is produced, or purportedly produced, under:
(i) this Act; or
(ii) a provision of the regulations or of the AML/CTF Rules, if the regulations or Rules (as applicable) state that this section applies to that provision.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) Subsection (1) does not apply if the document is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Strict liability applies to the paragraph (1)(c) element of the offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
138 False documents
Making a false document
(1) A person commits an offence if:
(a) the person makes a false document with the intention that the person or another will produce the false document in the course of an applicable customer identification procedure; and
(b) the applicable customer identification procedure is under this Act.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the applicable customer identification procedure is under this Act.
Possessing a false document
(3) A person commits an offence if:
(a) the person knows that a document is a false document; and
(b) the person has it in his or her possession with the intention that the person or another will produce it in the course of an applicable customer identification procedure; and
(c) the applicable customer identification procedure is under this Act.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the applicable customer identification procedure is under this Act.
Possessing equipment for making a false document
(5) A person commits an offence if the person:
(a) knows that a device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and
(b) has the device, material or thing in his or her possession with the intention that the person or another person will use it to commit an offence against subsection (1).
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
Making equipment for making a false document
(6) A person commits an offence if the person:
(a) makes or adapts a device, material or other thing; and
(b) knows that the device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and
(c) makes or adapts the device, material or thing with the intention that the person or another person will use it to commit an offence against subsection (1).
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
Interpretation
(7) An expression used in this section that is also used in Part 7.7 of the Criminal Code has the same meaning as in that Part.
Note: See also section 10.5 of the Criminal Code (lawful authority).
139 Providing a designated service using a false customer name or customer anonymity
(1) A person commits an offence if:
(a) the person is a reporting entity; and
(b) the person commences to provide a designated service; and
(c) the person does so using a false customer name; and
(d) at least one provision of Division 2, 3 or 4 of Part 2 applies to the provision of the designated service.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) Strict liability applies to the paragraph (1)(d) element of the offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2A) Paragraph (1)(c) does not apply to a false customer name if the customer’s use of that name is justified, or excused, by or under a law.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) A person commits an offence if:
(a) the person is a reporting entity; and
(b) the person commences to provide a designated service; and
(c) the person does so on the basis of customer anonymity; and
(d) at least one provision of Division 2, 3 or 4 of Part 2 applies to the provision of the designated service.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(4) Strict liability applies to the paragraph (3)(d) element of the offence.
Note: For strict
