Commonwealth Numbered Acts Commonwealth Numbered ActsAnti - Money Laundering and Counter - Terrorism Financing Act 2006
1 Section 5
Insert:
"examinee" , in relation to an examination under Division 3 of Part 14, means the person who appears for examination.
"examiner" , in relation to an examination under Division 3 of Part 14, means the AUSTRAC CEO and includes:
(a) a delegate of the AUSTRAC CEO; and
(b) a consultant engaged under subsection 225(1) to perform services as an examiner.
"statement" , in relation to an examination under Division 3 of Part 14, includes a question asked, an answer given, and any other comment or remark made, at the examination.
"written record" , in relation to an examination under Division 3 of Part 14, means:
(a) a record of the examination:
(i) that is made in writing; or
(ii) as reduced to writing; or
(b) a part of such a record.
2 Before section 166
Insert:
3 Section 166
Repeal the section, substitute:
An authorised officer may obtain information or documents.
If the AUSTRAC CEO believes on reasonable grounds that a person has information or a document that is relevant to compliance with this Act, the regulations or the AML/CTF Rules, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules, the AUSTRAC CEO may require the person:
(a) to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents; or
(b) to appear before an examiner for examination under this Division on oath or affirmation and to answer questions, and to produce any such documents.
The examiner may, and must if the examinee so requests, cause a record to be made of statements made at an examination under this Division.
A statement made by a person at an examination under this Division of the person is admissible in evidence against the person in certain proceedings except in certain circumstances.
4 Before section 167
Insert:
Division 2 -- Powers of authorised officers
5 At the end of Part 14
Add:
Division 3 -- Other powers to obtain information and documents
Subdivision A -- Examination of persons
172A Power of AUSTRAC CEO to obtain information and documents
(1) This section applies if the AUSTRAC CEO believes on reasonable grounds that a person has information or a document that is relevant to:
(a) compliance with this Act, the regulations or the AML/CTF Rules; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.
(2) The AUSTRAC CEO may, by written notice given to the person, require the person:
(a) to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents; or
(b) to appear before an examiner at the time and place specified in the notice:
(i) for examination under this Division, on oath or affirmation and to answer questions; and
(ii) to produce any such documents.
(3) The notice must:
(a) if paragraph (2)(b) applies--state the general nature of the matter to which the questions will relate; and
(b) in any case set out the effect of subsections (4) and 172F(1).
(4) A person commits an offence if the person intentionally or recklessly fails to comply with a notice under subsection (2).
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
172B Proceedings at examination
Sections 172C to 172H apply if, in accordance with a notice given under section 172A, a person (in this Division called the examinee ) appears before another person (in this Division called the examiner ) for examination.
172C Requirements made of persons appearing for examination
(1) If a person appears for examination in accordance with a notice given under subsection 172A(2), the examiner may examine the person on oath or affirmation and may, for that purpose:
(a) require the person to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to the person.
(2) The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.
(3) A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (1).
Penalty: 3 months imprisonment.
(4) The examiner may require the person to answer a question that is put to the person at the examination and is relevant to:
(a) compliance with this Act, the regulations or the AML/CTF Rules; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.
(5) A person commits an offence if the person intentionally or recklessly refuses or fails to comply with a requirement made under subsection (4).
Penalty: Imprisonment for 2 years.
172D Examination to take place in private
(1) An examination under this Division must take place in private and the examiner may give directions about who may be present during it, or during a part of it.
(2) A person commits an offence of strict liability if:
(a) the person is present at the examination; and
(b) the person is not:
(i) the examiner or examinee; or
(ii) a member of the staff of AUSTRAC approved by the examiner; or
(iii) entitled to be present by virtue of a direction under subsection (1) or subsection 172F(1).
Penalty: 30 penalty units.
172E Procedures for holding an examination
(1) The examiner may decide to hold an examination under this Division:
(a) at one or more physical venues; or
(b) at one or more physical venues and using virtual examination technology that allows a person to appear at all or part of the examination without being physically present at the examination; or
(c) using virtual examination technology only.
(2) Subsection (3) applies if the examination is held:
(a) at one or more physical venues and using virtual examination technology; or
(b) using virtual examination technology only.
(3) The examiner must ensure that the use of the virtual examination technology is reasonable.
(4) If the examination is held:
(a) at more than one physical venue; or
(b) at one or more physical venues and using virtual examination technology; or
(c) using virtual examination technology only;
the examiner may appoint a single place and time at which the examination is taken to have been held.
(5) This section applies to part of an examination in the same way that it applies to all of an examination.
(6) In this section:
"virtual examination technology" means any technology that allows a person to appear at all or part of an examination under this Division without being physically present at the examination.
172F Examinee's lawyer may attend
(1) The examinee's lawyer may be present at the examination and may, at such times during the examination as the examiner determines:
(a) address the examiner; and
(b) examine the examinee;
about matters about which the examiner has examined the examinee.
(2) If, in the examiner's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the examiner may require the person to stop addressing the examiner, or examining the examinee, as the case requires.
(3) A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (2).
Penalty: 20 penalty units.
(1) The examiner may, and must if the examinee so requests, cause a record to be made of statements made at an examination under this Division.
(2) If a record made under subsection (1) is in writing or is reduced to writing:
(a) the examiner may require the examinee to read it, or to have it read to the examinee, and may require the examinee to sign it; and
(b) the examiner must, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the examiner imposes.
(3) A person commits an offence of strict liability if the person fails to comply with a requirement made under paragraph (2)(a).
Penalty: 3 months imprisonment.
172H Giving to other persons copies of written record of examination
(1) The AUSTRAC CEO may give a copy of the whole or a part of a written record of an examination made under subsection 172G(1) to a person's lawyer if the lawyer satisfies the AUSTRAC CEO that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.
(2) A person commits an offence of strict liability if:
(a) the AUSTRAC CEO gives a copy of the whole or a part of a written record of an examination to a person under subsection (1); and
(b) the person, or any other person who has possession, custody or control of the copy or a copy of it:
(i) uses the copy or a copy of it; or
(ii) publishes, or communicates to another person, the copy, a copy of it, or any part of the copy's contents;
except in connection with preparing, beginning or carrying on, or in the course of, a proceeding.
Penalty: 30 penalty units.
(3) The AUSTRAC CEO may, subject to such conditions (if any) as it imposes, give to a person a copy of the whole or a part of a written record of the examination made under subsection 172G(1).
172J Copies of record of examination given subject to conditions
A person (the first person ) commits an offence of strict liability if:
(a) a copy of the whole or a part of a record is given to a person under subsection 172G(2) or 172H(3) subject to conditions; and
(b) the first person:
(i) is the person referred to in paragraph (a); or
(ii) has possession, custody or control of the copy or a copy of it; and
(c) the first person engages in conduct; and
(d) the first person's conduct breaches the condition.
Penalty: 30 penalty units.
(1) For the purposes of this Division, it is not a reasonable excuse for an individual to refuse or fail:
(a) to answer a question; or
(b) to produce a document; or
(c) to sign a record;
in accordance with a requirement made of the individual under this Division, on the ground that answering the question, producing the document or signing the record might tend to incriminate the individual or expose the individual to a penalty.
(2) Subsection (3) applies if:
(a) before making an oral statement in answer to a question, or signing a record, in accordance with a requirement made under this Division, the individual claims that the statement or the signing of the record (as the case may be) might tend to incriminate the individual or make the individual liable to a penalty; and
(b) the statement or the signing of the record (as the case may be) might, in fact, tend to incriminate the individual or make the individual so liable.
(3) The statement or the fact that the individual has signed the record (as the case may be) is not admissible in evidence against the individual in:
(a) civil or criminal proceedings; or
(b) a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of the making of a statement--the falsity of the statement; or
(d) in the case of the signing of a record--the falsity of any statement contained in the record.
Note: The law relating to legal professional privilege is not affected by this Act (see section 242).
Subdivision B -- Evidentiary use of certain material
172L Statements made at an examination--proceedings against examinee
(1) A statement that a person makes at an examination under this Division of the person is admissible in evidence against the person in a proceeding referred to in subsection (2) unless:
(a) because of subsection 172K(3), the statement is not admissible in evidence against the person in the proceeding; or
(b) the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or
(c) the statement is qualified or explained by another statement made at the examination, evidence of the other statement is not tendered in the proceeding, and the person objects to the admission of evidence of the first - mentioned statement; or
(d) the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.
Note: The law relating to legal professional privilege is not affected by this Act (see section 242).
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
(3) Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.
(4) If a written record of an examination of a person is signed by the person under subsection 172G(2) or authenticated in any other manner specified in the AML/CTF Rules, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Division limits or affects the admissibility in the proceeding of other evidence of statements made at the examination.
172M Statements made at an examination--other proceedings
(1) If direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding referred to in subsection (2), a statement that the absent witness made at an examination under this Division of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure the witness' attendance; or
(iii) all reasonable steps have been taken to find the absent witness but the witness cannot be found; or
(b) if it does not so appear to the court or tribunal--unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
172N Weight of evidence admitted under section 172M
(1) This section applies if evidence of a statement made by a person at an examination under this Division of the person is admitted under section 172M in a proceeding.
(2) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related the statement was made; and
(b) any reason the person may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.
(3) If the person is not called as a witness in the proceeding:
(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting the person's credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.
(4) However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross - examination, evidence of the matter would not have been admissible if adduced by the cross - examining party.
172P Objection to admission of statements made at examination
(1) A party (the adducing party ) to a proceeding referred to in subsection (2) may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination under this Division; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
(3) A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.
(4) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of objection.
(5) The period prescribed by subsection (4) may be extended by the court or tribunal or by agreement between the parties concerned.
(6) On receiving a notice given under subsection (4), the adducing party must give to the court or tribunal or other body referred to in paragraph (2)(b) (as the case requires) a copy of:
(a) the notice under subsection (1) and any writing that subsection (3) required to accompany that notice; and
(b) the notice under subsection (4).
(7) If subsection (6) is complied with, the court or tribunal or other body may either:
(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.
(8) If a notice has been given in accordance with subsections (1) and (3), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:
(a) the other party has, in accordance with subsection (4), objected to the statement being so admitted; or
(b) the court or tribunal or other body gives the other party leave to object to the statement being so admitted.
172Q Material otherwise admissible
Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.
Subdivision C -- Miscellaneous
172R Application of Crimes Act and Evidence Act
(1) For the purposes of Part III of the Crimes Act 1914 , an examination under this Division is a judicial proceeding.
(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply to an examination under this Division in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.
Part 2 -- Information gathering power
Anti - Money Laundering and Counter - Terrorism Financing Act 2006
6 After section 49A
Insert:
49B Notice to obtain information or documents in certain circumstances
Scope
(1) This section applies if a person has information or a document that may assist the AUSTRAC CEO with:
(a) obtaining or analysing information to support efforts to combat money laundering, terrorism financing, proliferation financing or other serious crimes; or
(b) identifying trends, patterns, threats or vulnerabilities associated with money laundering, terrorism financing, proliferation financing or other serious crimes;
for the purposes of the performance of functions of the AUSTRAC CEO.
Requirements
(2) The AUSTRAC CEO may, by written notice given to the person, require the person:
(a) to give to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such information; or
(b) to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents.
(3) The AUSTRAC CEO must not give a notice under subsection (2) to a person unless the AUSTRAC CEO reasonably believes that the person has knowledge of the information, or possession or control of the document, that is specified in the notice.
Content of notice
(4) The period specified in the notice in accordance with paragraph (2)(a) or (b) must be at least 14 days after the notice is given unless:
(a) the AUSTRAC CEO considers that specifying a shorter period is necessary; and
(b) the shorter period specified is reasonable in the circumstances.
(5) A notice under subsection (2) must set out the effect of the following provisions:
(a) subsection (7);
(b) section 136;
(c) section 137.
Note 1: Section 136 is about giving false or misleading information.
Note 2: Section 137 is about producing false or misleading documents.
Compliance
(6) A person must comply with a notice under subsection (2).
Civil penalty provisions
(7) Subsection (6) is a civil penalty provision.
49C Authorisation to obtain information or documents in certain circumstances
Scope
(1) This section applies if a person has information or a document that may assist the AUSTRAC CEO with:
(a) obtaining or analysing information to support efforts to combat money laundering, terrorism financing, proliferation financing or other serious crimes; or
(b) identifying trends, patterns, threats or vulnerabilities associated with money laundering, terrorism financing, proliferation financing or other serious crimes;
for the purposes of the performance of functions of the AUSTRAC CEO.
Authorisation
(2) The AUSTRAC CEO may, by written notice given to the person, authorise the person:
(a) to give to the AUSTRAC CEO any such information; or
(b) to produce to the AUSTRAC CEO any such documents.
Content of notice
(3) A notice under subsection (2) must set out the effect of the following provisions:
(a) subsection (5);
(b) section 136;
(c) section 137.
Note 1: Section 136 is about giving false or misleading information.
Note 2: Section 137 is about producing false or misleading documents.
Information disclosure etc.
(4) A person may give information or produce a document to the AUSTRAC CEO in accordance with a notice under subsection (2).
Note: This subsection constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws.
(5) This section applies despite any general law obligation of confidence.
7 Section 50A (at the end of the heading)
Add " , 49B or 49C ".
8 Paragraph 50A(1)(b)
Omit "or this section", substitute ", 49B or 49C".
9 Paragraphs 50A(3)(a) and (b)
Omit "or this section", substitute ", 49B or 49C".
10 Section 51
Omit "or 49", substitute ", 49, 49B or 49C".
11 Section 120
Before:
• 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.
insert:
• Certain persons must not disclose information relating to the giving or production of certain reports, information or other documents.
12 After subsection 123(2)
Insert:
(2A) If a person (the first person ) is required by a notice under subsection 49B(2) to give information or produce a document, the first person must not disclose to another person (except an AUSTRAC entrusted person):
(a) that the first person is or has been required by a notice under subsection 49B(2) to give information or produce a document; or
(b) that the information has been given or the document has been produced.
13 Subsection 123(10)
Omit "a reporting entity is not to be required to disclose to a court or tribunal information mentioned in subsection (1) or (2)", substitute "a person is not to be required to disclose to a court or tribunal information mentioned in subsection (1), (2) or (2A)".
14 Paragraph 123(11)(a)
After "(2),", insert "(2A),".
15 Subsection 167(1)
Repeal the subsection, substitute:
(1) This section applies to a person if an authorised officer reasonably believes that the person has knowledge of information, or possession or control of a document, that is relevant to the compliance with or enforcement of:
(a) an offence provision of this Act or the regulations; or
(b) a civil penalty provision of this Act or the regulations; or
(c) an offence provision of the Crimes Act 1914 or the Criminal Code , to the extent that it relates to this Act.
16 After subsection 167(3)
Insert:
Compliance
(3A) A person must comply with a notice given under subsection (2).
(3B) Subsection (3A) is a civil penalty provision.
17 At the end of paragraph 169(2)(d)
Add:
; or (iii) proceedings for an offence against a provision covered by the definition of money laundering in section 5; or
(iv) proceedings for an offence against a provision covered by the definition of financing of terrorism in section 5; or
(v) proceedings for an offence against a provision covered by the definition of proliferation financing in section 5.
18 Subsection 184(4) (after paragraph (f) of the definition of designated infringement notice provision )
Insert:
(fb) subsection 49B(6) (which deals with complying with a notice requiring certain information or documents);
19 At the end of subsection 184(4) (at the end of the definition of designated infringement notice provision )
Add:
; (h) subsection 167(3A) (which deals with complying with a notice requiring certain information or documents).
Division 2--Consequential amendments
Freedom of Information Act 1982
20 Subparagraph 7(2G)(a)(iii)
After "section 49", insert ", 49B or 49C".
Anti - Money Laundering and Counter - Terrorism Financing Act 2006
21 Section 5 (definition of credit card )
Repeal the definition, substitute:
"credit card" is a thing (whether real or virtual) that is one or more of the following:
(a) a thing of a kind commonly known as a credit card;
(b) a similar thing intended for use by a person in obtaining access to an account that is held by the person for the purpose of obtaining money, goods or services on credit;
(c) a thing of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit;
(d) a thing that may be used as a thing referred to in paragraph (a), (b) or (c).
22 Section 5 (definition of debit card )
Repeal the definition, substitute:
"debit card" means:
(a) a thing (whether real or virtual) that is intended for use by a person in obtaining access to an account that is held by the person for the purpose of withdrawing or depositing physical currency or obtaining goods or services; or
(b) a thing (whether real or virtual) that may be used as a thing referred to in paragraph (a).
23 Section 5 (definition of derivative )
Repeal the definition, substitute:
"derivative" : see subsections 7A(3) and (4).
24 Section 5 (definition of issue )
Omit "includes grant or otherwise make available", substitute "has the same meaning as in Chapter 7 of the Corporations Act 2001 ".
25 Section 5 (paragraphs (e) and (f) of the definition of loan )
Omit "(within the meaning of the Competition and Consumer Act 2010 )'.
26 Section 5 (definition of money )
At the end of the definition, add:
; and (d) a digital representation of value:
(i) that is issued by or under the authority of a government body; and
(ii) that is intended to function as money.
Example: Central bank digital currency.
26A Section 5 (after paragraph (b) of the definition of qualified accountant )
Insert:
(ba) the Institute of Public Accountants; or
27 Section 5 (definition of security )
Repeal the definition, substitute:
"security" : see subsections 7A(1) and (2).
28 Section 5 (definition of service )
Repeal the definition.
29 After section 7
Insert:
(1) Security has the same meaning as in Chapter 7 of the Corporations Act 2001 .
(2) Despite subsection (1), the AML/CTF Rules may provide:
(a) that a specified thing is a security ; or
(b) that a specified thing is not a security .
(3) Derivative has the same meaning as in Chapter 7 of the Corporations Act 2001 .
(4) Despite subsection (3), the AML/CTF Rules may provide:
(a) that a specified thing is a derivative ; or
(b) that a specified thing is not a derivative .
Part 4 -- Contingent amendment
Anti - Money Laundering and Counter - Terrorism Financing Act 2006
30 Subsection 123(8B)
Omit "and (2) do not apply to the disclosure of information by a reporting entity", substitute ", (2) and (2A) do not apply to the disclosure of information by a person".