An Act to combat money laundering and the financing of
terrorism, and for other purposes
Part 1—Introduction
1
Short title [see
Note 1]
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.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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12 December 2006
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2. Sections 3 to 26
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The day after this Act receives the Royal Assent.
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13 December 2006
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3. Part 2, Divisions 1 to 5
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The first day after the end of the period of 12 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2007
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4. Part 2, Division 6
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The first day after the end of the period of 24 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2008
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5. Part 2, Division 7
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The first day after the end of the period of 12 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2007
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6. Part 3, Divisions 1 to 4
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The first day after the end of the period of 24 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2008
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7. Part 3, Division 5
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The first day after the end of the period of 6 months
beginning on the day on which this Act receives the Royal Assent.
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12 June 2007
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8. Part 3, Division 6
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The first day after the end of the period of 24 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2008
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9. Parts 4, 5 and 6
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The day after this Act receives the Royal Assent.
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13 December 2006
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10. Part 7
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The first day after the end of the period of 12 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2007
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11. Part 8
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The first day after the end of the period of 6 months
beginning on the day on which this Act receives the Royal Assent.
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12 June 2007
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12. Part 9
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The day after this Act receives the Royal Assent.
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13 December 2006
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13. Part 10, Divisions 1 and 2
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The day after this Act receives the Royal Assent.
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13 December 2006
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14. Part 10, Division 3
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The first day after the end of the period of 12 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2007
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15. Part 10, Division 4
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The day after this Act receives the Royal Assent.
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13 December 2006
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16. Part 10, Division 5
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The first day after the end of the period of 12 months
beginning on the day on which this Act receives the Royal Assent.
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12 December 2007
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17. Part 10, Division 6
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The first day after the end of the period of 6 months
beginning on the day on which this Act receives the Royal Assent.
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12 June 2007
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18. Part 10, Division 7
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The day after this Act receives the Royal Assent.
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13 December 2006
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19. Parts 11 to 18
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The day after this Act receives the Royal Assent.
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13 December 2006
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20. Schedule 1
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The day after this Act receives the Royal Assent.
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13 December 2006
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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:
(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 Internet site (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 Internet site (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 physical currency must be reported to the AUSTRAC CEO, a customs
officer or a police officer if the total amount moved is above a threshold.
• Cross‑border
movements of bearer negotiable instruments must be reported to the AUSTRAC CEO,
a customs officer or a police officer if a customs officer or a police officer
requires a person to make such a report.
• Electronic funds transfer
instructions must include certain information about the origin of the
transferred money.
• Providers of designated
remittance 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.
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.
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.
ASIO means the Australian Security
Intelligence Organisation.
ASIO Minister means the Minister responsible
for administering the Australian Security Intelligence Organisation Act 1979.
ASIO official means:
(a) the Director‑General of
Security; or
(b) a person employed under paragraph
84(1)(a) or (b) of the Australian Security Intelligence Organisation Act
1979.
ASIS means the Australian Secret
Intelligence Service.
ASIS Minister means the Minister responsible
for administering so much of the Intelligence Services Act 2001 as relates
to ASIS.
ASIS official means:
(a) the Director‑General of
ASIS; or
(b) a person employed under subsection
33(1) of the Intelligence Services Act 2001; or
(c) a person engaged under subsection
34(1) of the Intelligence Services Act 2001.
For the purposes of this Act, a person covered by
paragraph (c) is taken to be an employee of ASIS.
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 information means:
(a) eligible collected information; or
(b) a compilation by the AUSTRAC CEO
of eligible collected information; or
(c) an analysis by the AUSTRAC CEO of
eligible collected information.
Australia, when used in a geographical sense,
includes the external Territories.
Australian account means an account held in Australia.
Australian Commission for Law Enforcement Integrity
officer means a staff member (as defined by section 11 of the Law
Enforcement Integrity Commissioner Act 2006) of the Australian Commission
for Law Enforcement Integrity.
Australian financial services licence has the
same meaning as in Chapter 7 of 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.
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.
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.
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.
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
section 63A of the Trade Practices Act 1974.
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:
(a) the Chief Executive Officer of
Customs; or
(b) 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
section 63A of the Trade Practices Act 1974.
debit card account: if a debit card enables
the holder of an account to debit the account, the account is a debit
card account.
derivative has the same meaning as in
Chapter 7 of the Corporations Act 2001.
designated agency means:
(a) the Australian Crime Commission;
or
(b) ASIO; or
(c) the Australian Commission for Law
Enforcement Integrity; or
(d) the Australian Competition and
Consumer Commission; or
(e) the Australian Customs Service; or
(f) the Australian Federal Police; or
(g) the Australian Prudential
Regulation Authority; or
(ga) ASIS; or
(h) the Australian Securities and
Investments Commission; or
(i) the Child Support Agency; or
(j) the Commonwealth Services
Delivery Agency (Centrelink); or
(k) a Commonwealth Royal Commission whose
terms of reference include inquiry into whether unlawful conduct (however
described) has, or might have, occurred; or
(l) the Immigration Department; or
(m) IGIS; or
(n) the Treasury Department; or
(o) an authority or agency of the
Commonwealth, where the authority or agency is specified in the regulations; or
(p) the police force or police service
of a State or the Northern Territory; or
(q) the New South Wales Crime
Commission; or
(r) the Independent Commission
Against Corruption of New South Wales; or
(s) the Police Integrity Commission
of New South Wales; or
(t) the Crime and Misconduct
Commission of Queensland; or
(u) the Corruption and Crime
Commission of Western Australia; or
(v) an authority or agency of a State
or Territory, where the authority or agency has the responsibility of
collecting or receiving taxation revenue of the State or Territory; or
(w) 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 regulations; or
(x) an authority or agency of a State
or Territory, where the authority or agency is specified in the regulations.
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 remittance arrangement has the
meaning given by section 10.
designated service has the meaning given by
section 6.
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 Security means the
Director‑General of Security holding office under the Australian
Security Intelligence Organisation Act 1979.
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.
e‑currency means an Internet‑based,
electronic means of exchange that is:
(a) known as any of the following:
(i) e‑currency;
(ii) e‑money;
(iii) digital currency;
(iv) a name specified in the
AML/CTF Rules; and
(b) backed either directly or
indirectly by:
(i) precious metal; or
(ii) bullion; or
(iii) a thing of a kind prescribed
by the AML/CTF Rules; and
(c) not issued by or under the
authority of a government body;
and includes anything that, under the regulations, is
taken to be e‑currency for the purposes of this Act.
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 collected information means:
(a) information obtained by the
AUSTRAC CEO under:
(i) this Act; or
(ii) any other law of the
Commonwealth; or
(iii) a law of a State or
Territory; or
(b) information obtained by the
AUSTRAC CEO from a government body; or
(c) information obtained by an
authorised officer under Part 13, 14 or 15;
and includes FTR information (within the meaning of the Financial
Transaction Reports Act 1988).
eligible gaming machine venue has the meaning
given by section 13.
eligible place means:
(a) a place for the examination of
goods on landing, where the place is appointed under section 17 of the Customs
Act 1901; or
(b) a warehouse in respect of which a
warehouse licence (within the meaning of Part V of 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.
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 Internet site (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.
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 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).
foreign intelligence agency means a
government body that has responsibility for:
(a) intelligence gathering for a
foreign country; or
(b) the security of a foreign country.
foreign law enforcement agency means a
government body that has responsibility for law enforcement in a foreign
country or a part of a foreign country.
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.
IGIS (short for Inspector‑General of
Intelligence and Security) means the agency consisting of:
(a) the Inspector‑General of
Intelligence and Security; and
(b) the APS employees assisting the
Inspector‑General of Intelligence and Security.
IGIS official
(short for Inspector‑General of Intelligence and Security official)
means:
(a) the Inspector‑General of Intelligence
and Security; or
(b) an APS employee assisting the
Inspector‑General of Intelligence and Security.
Immigration Department means the Department
responsible for the administration of the Migration Act 1958.
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.
Inter‑Governmental Committee means the
Inter‑Governmental Committee mentioned in section 8 of the Australian
Crime Commission Act 2002.
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
Chief Executive Officer of Customs); or
(d) an examiner of the Australian
Crime Commission; or
(e) a member of the staff of the
Australian Crime Commission.
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 Insurance Actuarial Standard 4.02 means
Actuarial Standard 4.02 made under section 101 of the Life Insurance
Act 1995.
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 Life Insurance Actuarial Standard 4.02 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 Trade Practices Act 1974) are sold on credit—the provision by the
seller of that credit; or
(f) if services (within the meaning
of the Trade Practices Act 1974) 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.
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.
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; and
(d) e‑currency, however amounts
of the e‑currency are expressed.
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 physical currency into Australia
has the meaning given by section 58.
move physical currency out of Australia
has the meaning given by section 57.
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).
non‑designated Commonwealth
agency means an authority or agency of the Commonwealth that is not a
designated agency.
non‑reportable cross‑border movement of
physical currency means:
(a) a movement of physical currency
out of Australia; or
(b) a movement of physical currency
into 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.
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 of a designated agency or a non‑designated
Commonwealth agency has the meaning given by section 22.
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).
penalty unit has the meaning given by
section 4AA of the Crimes Act 1914.
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).
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.
precious metal means:
(a) gold; or
(b) silver; or
(c) platinum; or
(d) palladium; or
(e) iridium; or
(f) osmium; or
(g) rhodium; or
(h) a metal specified in the
regulations; or
(i) any alloy or other substance
containing:
(i) gold; or
(ii) silver; or
(iii) platinum; or
(iv) palladium; or
(v) iridium; or
(vi) osmium; or
(vii) rhodium; or
(viii) a metal specified in
the regulations.
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.
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 within
the meaning of Chapter 7 of that Act, 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) the Institute of Chartered
Accountants in Australia; 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.
Register of Providers of Designated Remittance
Services means the register maintained under subsection 75(1).
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.
remittance arrangement has the meaning given
by section 10.
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.
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
section 92 of the Corporations Act 2001 (for this purpose, disregard
subsections 92(3) and (4) of that Act).
Note: Security includes an interest in
a managed investment scheme.
self managed superannuation fund has the same
meaning as in the Superannuation Industry (Supervision) Act 1993.
send, in relation to physical currency,
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 person, or one of the persons, on whose
instructions (whether required to be in writing or not and whether required to
be signed or not) the account provider conducts transactions in relation to the
account.
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 includes a portable device
that is:
(a) capable of storing monetary value
in a form other than physical currency; and
(b) of a kind specified in the
regulations.
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
(b) a transaction involving the
transfer of money in the form of e‑currency, where the total amount of e‑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
(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.
Paragraphs (a) and (b) do 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 e‑currency
to Australian currency).
Note 3: For specification by class, see subsection
13(3) of the Legislative Instruments 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).
Treasury Department means the Department
administered by the Treasurer.
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.
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 Trade Practices Act 1974); 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 Trade Practices Act 1974); 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 Trade Practices Act 1974); 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 Trade Practices Act 1974); 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 on the
card may be withdrawn in cash; and
(b) the monetary value stored on 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 on a stored value
card held by a person, where:
(a) the whole or a part of the monetary value stored on 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 on the card may be
withdrawn in cash; and
(b) the monetary value stored on 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 on a stored value
card held by a person, where:
(a) no part of the monetary value stored on 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
|
accepting money or property from a transferor entity to be
transferred under a designated remittance arrangement
|
the transferor entity
|
|
32
|
making money or property available to an ultimate
transferee entity as a result of a transfer under a designated remittance
arrangement
|
the ultimate transferee entity
|
|
33
|
in the capacity of agent of a person, acquiring or
disposing of:
(a) a security; or
(b) a derivative; 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 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 a security of the company
or of an option to acquire a security of the company; 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
|
|
51
|
collecting physical currency, or holding physical currency
collected, from or on behalf of a person, where:
(a) the service is provided in the course of carrying on a
business of collecting or holding physical currency; and
(b) the physical currency was not collected by the provider
of the service as consideration for the supply of goods (within the meaning
of the Trade Practices Act 1974); and
(c) the physical currency was not collected by the provider
of the service as consideration for the supply of services (within the
meaning of the Trade Practices Act 1974) other than the service of
collecting or holding physical currency; and
(d) the physical currency was not collected as a donation to
a charity or charitable institution
|
the person
|
|
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
|
|
53
|
delivering physical currency (including pay‑rolls)
to a person, where the service is provided in the course of carrying on a
business of delivering physical currency
|
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: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
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 business
|
the person from whom the bullion is bought
|
|
2
|
selling bullion, where the selling is in the course of
carrying on a 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 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 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 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 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
business; and
(d) the game is not played on a gaming machine located at an
eligible gaming machine venue
|
the person
|
|
7
|
exchanging money for gaming chips or tokens, where the
service is provided in the course of carrying on a business
|
the person whose money is exchanged
|
|
8
|
exchanging gaming chips or tokens for money, where the
service is provided in the course of carrying on a business
|
the person whose gaming chips or tokens 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
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
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
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
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 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) the person who accepts money or
property from a transferor entity to be transferred under the remittance
arrangement is not:
(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
(b) the person who makes money or
property available to an ultimate transferee entity as a result of a transfer
under the remittance arrangement is not:
(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
(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 money or property is accepted so as to enable its
transfer 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, trademark 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 e‑currency to Australian currency
In determining, for the purposes of this
Act, whether an amount of e‑currency is not less than an Australian dollar
amount, the amount of e‑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 designated agencies etc.
(1) For the purposes of this Act, an official
of a designated agency or a non‑designated Commonwealth agency is a
person who is:
(a) the chief executive officer
(however described) of the agency; or
(b) a member or acting member of the
agency; or
(c) a member of the staff of the
agency; or
(d) an officer or employee of the
agency; or
(e) an officer, employee or other
individual under the control of the chief executive officer (however described)
of the agency; or
(f) an individual who, under the
regulations, is taken to be an official of the agency for the purposes of this
Act;
and includes:
(g) in the case of the Australian
Crime Commission—a person who is an examiner of the Australian Crime
Commission; and
(h) in the case of a Commonwealth
Royal Commission—a person who is:
(i) a legal practitioner
(however described) appointed to assist the Commission; and
(ii) a person authorised
under subsection (2); and
(i) in the case of a State/Territory
Royal Commission—a person who is:
(i) a legal practitioner
(however described) appointed to assist the Commission; and
(ii) a person authorised
under subsection (3).
Royal Commissions
(2) Either:
(a) the sole Commissioner of a
Commonwealth Royal Commission; or
(b) a member of a Commonwealth Royal
Commission;
may, by writing, authorise a person assisting the
Commission to be an official of the Commission for the purposes
of this Act.
(3) Either:
(a) the sole Commissioner of a
State/Territory Royal Commission; or
(b) a member of a State/Territory
Royal Commission;
may, by writing, authorise a person assisting the
Commission to be an official of the Commission for the purposes
of this Act.
Note: For revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
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 the applicable customer identification procedure before the
commencement of the provision of a designated service.
(1) A reporting entity must not commence to
provide a designated service to a customer if:
(a) there are no special circumstances
that justify carrying out the applicable customer identification procedure in
respect of the customer after the commencement of the provision of the service
(see section 33); and
(b) the reporting entity has not previously
carried out the applicable customer identification procedure in respect of the
customer; and
(c) neither section 28 nor
section 30 applies to the provision of the service.
Note 1: See also the definition of commence to
provide a designated service in section 5.
Note 2: See also section 38 (when applicable
customer identification procedure deemed to be carried out by a reporting
entity).
Civil penalty
(2) 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 Legislative Instruments 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 section 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 section 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 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.
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.
(2) For example, a reporting entity may
authorise another person to be its agent for the purposes of carrying out
applicable customer identification 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 in respect of the customer on the
reporting entity’s behalf.
38
Applicable customer identification procedures deemed to be carried out by a
reporting entity
If:
(a) a reporting entity carried 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) the applicable customer
identification procedure was carried out in such circumstances as are specified
in the AML/CTF Rules; and
(c) the customer is or becomes a
customer to whom another reporting entity provides, or proposes to provide, a
designated service; and
(d) such other conditions set out in
the AML/CTF Rules are satisfied;
this Act (other than Part 10) has effect as if the
applicable customer identification procedure had also been carried out in
respect of the customer by the other reporting entity.
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 Legislative Instruments 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.
(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 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.
(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 person 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
person 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 Chief Executive Officer of
Customs; or
(f) the Integrity 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,
require the reporting entity:
(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 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.
Compliance
(2) A reporting entity must comply with a
notice under subsection (1).
Civil penalty
(3) Subsection (2) is a civil penalty
provision.
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.
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 4—Reports about cross‑border movements of physical
currency and bearer negotiable instruments
Division 1—Introduction
52
Simplified outline
The following is a simplified outline of
this Part:
• Cross‑border movements
of physical currency must be reported to the AUSTRAC CEO, a customs officer or
a police officer if the total value moved is above a threshold.
• If a bearer negotiable
instrument is produced to a police officer or a customs officer by a person leaving
or arriving in Australia, the officer may require the person to give a report
about the instrument to the AUSTRAC CEO, a customs officer or a police officer.
Division 2—Reports about physical currency
53
Reports about movements of physical currency into or out of Australia
Offence
(1) A person commits an offence if:
(a) either:
(i) the person moves
physical currency into Australia; or
(ii) the person moves
physical currency out of Australia; and
(b) the total amount of the physical
currency is not less than $10,000; and
(c) a report in respect of the
movement has not been given in accordance with this section.
Penalty: Imprisonment for 2 years or 500 penalty units, or
both.
(2) Strict liability applies to
paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Civil penalty
(3) A person must not:
(a) move physical currency into Australia;
or
(b) move physical currency out of Australia;
if:
(c) the total amount of the physical
currency is not less than $10,000; and
(d) a report in respect of the
movement has not been given in accordance with this section.
(4) Subsection (3) is a civil penalty
provision.
Commercial carriers
(5) Subsections (1) and (3) do not apply
to a person if:
(a) the person is a commercial passenger
carrier; and
(b) the physical currency is in the
possession of any of the carrier’s passengers.
(6) Subsections (1) and (3) do not apply
to a person if:
(a) the person is a commercial goods
carrier; and
(b) the physical currency is carried
on behalf of another person; and
(c) the other person has not disclosed
to the carrier that the goods carried on behalf of the other person include
physical currency.
(7) A person who wishes to rely on
subsection (5) or (6) bears an evidential burden in relation to that
matter.
Requirements for reports under this section
(8) A report under this section must:
(a) be in the approved form; and
(b) contain such information relating
to the matter being reported as is 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 subsection 54(1).
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
Timing of reports about physical currency movements
Applicable timing rule
(1) A report under section 53 must be
given:
(a) if the movement of the physical
currency is to be effected by a person bringing the physical currency into
Australia with the person—at the time worked out under subsection (2); or
(b) if the movement of the physical
currency is to be effected by a person taking the physical currency out of
Australia with the person—at the time worked out under subsection (3); or
(c) if the physical currency is to be
taken out of Australia by a person by consignment of the physical currency:
(i) through the post to a
place outside Australia; or
(ii) to another person for
carriage to a place outside Australia by that other person or by a third
person;
at any time before the time when
the physical currency is irrevocably committed by the first‑mentioned
person to the Australian Postal Corporation or to the other person, as the case
may be; or
(d) in any other case—at any time
before the movement of the physical currency takes place.
Inwards movements
(2) For the purposes of
paragraph (1)(a), the applicable time is:
(a) if the person:
(i) moves the physical
currency into Australia on an aircraft or ship; and
(ii) after disembarking,
goes to the place at which customs officers examine baggage;
as soon as the person reaches
that place; or
(b) in any other case—the first opportunity
after arrival in Australia that the person has to give the report under
section 53.
Outwards movements
(3) For the purposes of
paragraph (1)(b), the applicable time is:
(a) if:
(i) the movement of the
physical currency is to be effected on an aircraft or ship; and
(ii) the person, before
embarking, goes to the place at which customs officers examine passports;
as soon as the person reaches
that place; or
(b) in any other case—as soon as the
person reaches the customs officer who is to examine the person’s passport in
relation to the person leaving Australia or, if there is no such examination,
the last opportunity before leaving Australia that the person has to give the
report under section 53.
55
Reports about receipts of physical currency from outside Australia
Offence
(1) A person commits an offence if:
(a) the person receives physical
currency moved to the person from outside Australia; and
(b) at the time of the receipt, the
total amount of the physical currency is not less than $10,000; and
(c) a report in respect of the
movement has not been made in accordance with section 53 before the
movement; and
(d) a report in respect of the receipt
is not given in accordance with this section before the end of the period of 5
business days beginning on the day of the receipt.
Penalty: Imprisonment for 2 years or 500 penalty units, or
both.
(2) Strict liability applies to
paragraphs (1)(c) and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
Civil penalty
(3) A person must not receive physical
currency moved to the person from outside Australia if:
(a) at the time of the receipt, the
total amount of the physical currency is not less than $10,000; and
(b) a report in respect of the
movement has not been made in accordance with section 53 before the
movement; and
(c) a report in respect of the receipt
is not given in accordance with this section before the end of the period of 5
business days beginning on the day of the receipt.
(4) Subsection (3) is a civil penalty
provision.
Requirements for reports under this section
(5) A report under this section must:
(a) be in the approved form; and
(b) contain such information relating
to the matter being reported as is specified in the AML/CTF Rules; and
(c) be given to the AUSTRAC CEO, a
customs officer or a police officer.
Note 1: For additional rules about reports, see
section 244.
Note 2: See also section 18 (translation of
foreign currency to Australian currency).
56
Obligations of customs officers and police officers
If a report under section 53 or 55
is given to a customs officer or a police officer, the officer must, within 5
business days after the day of receipt of the report, forward the report to the
AUSTRAC CEO.
57
Movements of physical currency out of Australia
(1) This section sets out the 2 situations in
which a person moves physical currency out of Australia.
(2) For the purposes of this Act, a person moves
physical currency out of Australia if the person takes or sends the physical
currency out of Australia.
(3) For the purposes of this Act, if a
person:
(a) arranges to leave Australia on an
aircraft or ship; and
(b) for the purpose of leaving Australia,
goes towards an aircraft or ship through an embarkation area; and
(c) either:
(i) takes physical currency
into the embarkation area; or
(ii) has physical currency
in his or her baggage; and
(d) does not give a report about the
physical currency when at the place in the embarkation area at which customs
officers examine passports;
the person is taken to have moved the
physical currency out of Australia.
58
Movements of physical currency into Australia
For the purposes of this Act, a person moves
physical currency into Australia if the person brings or sends the physical
currency into Australia.
Division 3—Reports about bearer negotiable instruments
59
Reports about movements of bearer negotiable instruments into or out of Australia
Reporting requirement
(1) If, under section 200:
(a) a person produces to a police
officer or a customs officer one or more bearer negotiable instruments that the
person has with him or her; or
(b) a police officer or a customs
officer conducts an examination or search and finds one or more bearer
negotiable instruments that a person has with him or her;
the officer may require the person to give the AUSTRAC
CEO, a customs officer or a police officer a report about the bearer negotiable
instruments as soon as possible.
Requirements for reports under this section
(2) A report under subsection (1) must:
(a) be in the approved form; and
(b) contain such information relating
to the matter being reported as is specified in the AML/CTF Rules.
Note: For additional rules about reports, see
section 244.
Offence
(3) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); 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.
Civil penalty
(4) If a person is subject to a requirement
under subsection (1), the person must not engage in conduct that breaches
the requirement.
(5) Subsection (4) is a civil penalty
provision.
Note: Division 8 of Part 15 sets out
special enforcement powers relating to this section.
60
Obligations of customs officers and police officers
If a report under section 59 is
given to a customs officer or a police officer, the officer must, within 5
business days after the day of receipt of the report, forward the report to the
AUSTRAC CEO.
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 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 Chief Executive
Officer 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 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 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—Register of Providers of Designated Remittance Services
73
Simplified outline
The following is a simplified outline of
this Part:
• A person must not provide a
registrable designated remittance service unless the person’s name is entered
on the Register of Providers of Designated Remittance Services.
74
Unregistered persons must not provide registrable designated remittance
services
(1) A person must not provide a registrable
designated remittance service if:
(a) the person’s name; and
(b) the person’s registrable details;
are not entered on the Register of Providers of Designated
Remittance Services.
Offences
(2) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); 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); 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) of this
section; or
(ii) accepted an undertaking
given by the person under section 197 in relation to subsection (1)
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); 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) of this
section; or
(ii) accepted an
undertaking given by the person under section 197 in relation to
subsection (1) 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); 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) Subsection (1) is a civil penalty
provision.
Defences
(11) If, in:
(a) criminal proceedings for an
offence against subsection (2), (4), (6) or (8); or
(b) section 175 proceedings for a
contravention of subsection (1);
it is proved that the defendant’s name was not entered on
the Register of Providers of Designated Remittance Services, it is a defence if
the defendant proves that:
(c) the defendant had, at a time
before the offence or contravention, made an application to the AUSTRAC CEO
under section 76 for:
(i) the defendant’s name;
and
(ii) the defendant’s
registrable details;
to be entered on the Register of
Providers of Designated Remittance Services; and
(d) the defendant had not subsequently
requested the AUSTRAC CEO under section 78 to remove:
(i) the defendant’s name;
and
(ii) the defendant’s
registrable details;
from the Register of Providers
of Designated Remittance Services.
Note: In criminal proceedings, a defendant bears a
legal burden in relation to the matters in subsection (11)—see
section 13.4 of the Criminal Code.
(12) If, in:
(a) criminal proceedings for an
offence against subsection (2), (4), (6) or (8); or
(b) section 175 proceedings for a
contravention of subsection (1);
it is proved that the defendant’s registrable details were
not entered on the Register of Providers of Designated Remittance Services, it
is a defence if the defendant proves that the defendant had, at a time before
the contravention, informed the AUSTRAC CEO, in writing, of the registrable
details.
Note: In criminal proceedings, a defendant bears a
legal burden in relation to the matters in subsection (12)—see
section 13.4 of the Criminal Code.
75
Register of Providers of Designated Remittance Services
(1) The AUSTRAC CEO must maintain a register
for the purposes of this Part, to be known as the Register of Providers of
Designated Remittance Services.
(2) The AUSTRAC CEO may maintain the register
by electronic means.
(3) The register 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
Register of Providers of Designated Remittance Services;
(b) any other matter relating to the
administration or operation of the Register of Providers of Designated
Remittance Services.
76
Registration
(1) If:
(a) a person makes a written
application to the AUSTRAC CEO for:
(i) the person’s name; and
(ii) the person’s
registrable details;
to be entered on the Register of
Providers of Designated Remittance Services; and
(b) the person’s name is not already
entered on that register;
the AUSTRAC CEO must enter:
(c) the person’s name; and
(d) the person’s registrable details;
on that register.
(2) An application must be in the approved
form.
77
Updating of entries on the Register of Providers of Designated Remittance
Services
(1) If:
(a) a person’s name is entered on the
Register of Providers of Designated Remittance Services; and
(b) the person informs the AUSTRAC
CEO, in writing, of a change of name;
the AUSTRAC CEO must change the relevant entry in the
register.
(2) If:
(a) a person’s name is entered in the
Register of Providers of Designated Remittance Services; and
(b) the person’s registrable details
have also been entered on the register; and
(c) the person informs the AUSTRAC
CEO, in writing, that there has been a change in any of those registrable
details;
the AUSTRAC CEO must make the relevant change in the
details entered on the register.
78
Removal of entries from the Register of Providers of Designated Remittance Services
(1) This section applies if:
(a) a person’s name is entered on the
Register of Providers of Designated Remittance Services; and
(b) the person requests the AUSTRAC
CEO, in writing, to remove:
(i) the person’s name; and
(ii) the person’s registrable
details;
from the register.
(2) The AUSTRAC CEO must remove:
(a) the person’s name; and
(b) the person’s registrable details;
from the register.
79
Access to the Register of Providers of Designated Remittance Services
(1) A reporting entity may request the
AUSTRAC CEO, in writing, to tell the reporting entity whether the name of a
specified person is entered on the Register of Providers of Designated
Remittance Services.
(2) The AUSTRAC CEO must comply with the
reporting entity’s request as soon as practicable after the request is made.
79A
Evidentiary certificates
(1) In:
(a) criminal proceedings for an
offence against subsection 74(2), (4), (6) or (8); or
(b) section 175 proceedings for a
contravention of subsection 74(1);
a certificate signed by the AUSTRAC CEO stating that the
defendant’s name was not entered on the Register of Providers of Designated
Remittance Services is prima facie evidence of the matters in the certificate.
(2) In:
(a) criminal proceedings for an
offence against subsection 74(2), (4), (6) or (8); or
(b) section 175 proceedings for a
contravention of subsection 74(1);
a certificate signed by the AUSTRAC CEO stating that the
defendant’s registrable details were not entered on the Register of Providers
of Designated Remittance Services is prima facie evidence of the matters in the
certificate.
(3) A document purporting to be a certificate
mentioned in subsection (1) or (2) is taken to be such a certificate and
to have been duly given, unless the contrary is established.
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.
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.
Holder of an Australian financial services licence
(6) A reporting entity is not entitled to
adopt or maintain a joint 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.
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 Legislative Instruments 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 Legislative Instruments 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 Legislative Instruments 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 Legislative Instruments 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 Legislative Instruments 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 Legislative Instruments 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
The following is a 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.
• Before a financial
institution enters into a correspondent banking relationship with another
financial institution, the financial institution must carry out a due diligence
assessment.
• If a financial institution
has entered into a correspondent banking relationship with another financial
institution, the financial institution must carry out regular due diligence
assessments.
95
Prohibition of entry into correspondent banking relationships with shell banks
etc.
(1) A financial institution must not enter
into a correspondent banking relationship with another person if the person
does so reckless as to whether:
(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.
Note: For geographical links, see section 100.
Civil penalty
(2) Subsection (1) is a civil penalty
provision.
96
Termination of correspondent banking relationship with shell bank etc.
(1) If:
(a) a financial institution (the first
financial institution) is in a correspondent banking relationship with
another person; and
(b) the first financial institution
becomes aware that the other person is a shell bank;
the first financial institution must, within:
(c) 20 business days after becoming
aware as mentioned in paragraph (b); or
(d) such longer period (if any) as the
AUSTRAC CEO allows;
terminate the correspondent banking relationship.
Note: For geographical links, see section 100.
(2) If:
(a) a financial institution (the first
financial institution) is in a correspondent banking relationship with
another financial institution; and
(b) the first financial institution
becomes aware that the other financial institution has a correspondent banking
relationship with a shell bank;
the first financial institution must, within:
(c) 20 business days after becoming
aware as mentioned in paragraph (b); or
(d) such longer period (if any) as the
AUSTRAC CEO allows;
either:
(e) terminate the correspondent
banking relationship mentioned in paragraph (a); or
(f) request the other financial
institution to terminate the correspondent banking relationship mentioned in
paragraph (b).
Note: For geographical links, see section 100.
(3) If:
(a) a financial institution (the first
financial institution) makes a request under paragraph (2)(f) of
another financial institution; and
(b) at the end of the period of 20
business days after the request was made, the other finan
