Anti-Money Laundering and Counter-Terrorism Financing Act 2006

26A Simplified outline

The following is a simplified outline of this Part:

• A reporting entity must have and comply with an AML/CTF program. An AML/CTF program comprises the reporting entity’s ML/TF risk assessment and AML/CTF policies.

• The ML/TF risk assessment is an assessment of the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services.

• The AML/CTF policies must appropriately manage and mitigate those risks and ensure the reporting entity complies with this Act and instruments under this Act.

• The AML/CTF program must be appropriate to the nature, size and complexity of the reporting entity’s business. For a lead entity of a reporting group, it must be appropriate to the nature, size and complexity of the business of each reporting entity in the reporting group.

• The governing body of the reporting entity has responsibilities relating to the AML/CTF program, including relating to overseeing and ensuring the reporting entity complies with the AML/CTF policies, this Act and instruments under this Act.

• The reporting entity must have an AML/CTF compliance officer. The AML/CTF compliance officer has various functions, including to oversee and coordinate the effective operation of, and compliance with, the AML/CTF policies.

26B What is an AML/CTF program?

An AML/CTF program of a reporting entity comprises:

the reporting entity’s ML/TF risk assessment; and

the reporting entity’s AML/CTF policies.

26C Reporting entities must undertake an ML/TF risk assessment

(1) A reporting entity must undertake an assessment (an ML/TF risk assessment) that identifies and assesses the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services.

The steps taken by a reporting entity in relation to undertaking the reporting entity’s ML/TF risk assessment must be appropriate to the nature, size and complexity of the reporting entity’s business.

Note: See also section 26U (business of a lead entity of a reporting group).

Additional obligations that apply to reporting entities that provide designated services at or through permanent establishments in Australia

If the reporting entity provides designated services at or through a permanent establishment of the reporting entity in Australia, the reporting entity must have regard to the following matters in undertaking an ML/TF risk assessment:

the kinds of designated services provided, or proposed to be provided, by the reporting entity, including any new or emerging technologies relating to those services;

the kinds of customers to whom the reporting entity’s designated services are or will be provided;

the delivery channels by which the reporting entity’s designated services are or will be provided, including any new or emerging technologies relating to those delivery channels;

the countries with which the reporting entity deals, or will deal, in providing its designated services;

information communicated either directly or indirectly by AUSTRAC to the reporting entity that identifies or assesses the risks associated with the reporting entity’s provision of its designated services;

the matters (if any) specified in the AML/CTF Rules.

Subsection (3) does not limit subsection (1).

26D Reporting entities must review and update ML/TF risk assessment

Review of ML/TF risk assessment

A reporting entity must review its ML/TF risk assessment for the purpose of identifying and assessing any new or changed risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services:

if any of the following occur:

there is a significant change to any of the matters mentioned in subsection 26C(3);

AUSTRAC communicates to the reporting entity information that identifies or assesses risks associated with the reporting entity’s provision of its designated services;

circumstances specified in the AML/CTF Rules; and

in any event—at least once every 3 years.

The review must be undertaken:

for a significant change that is within the control of the reporting entity—before the significant change occurs; or

for a significant change that is not within the control of the reporting entity—as soon as practicable after the significant change occurs; or

for information communicated for the purposes of subparagraph (1)(a)(ii)—as soon as practicable after the information is communicated to the reporting entity; or

for circumstances specified in the AML/CTF Rules—at the time, or within the period, specified in the AML/CTF Rules.

The review must be appropriate to the nature, size and complexity of the reporting entity’s business.

Note: See also section 26U (business of a lead entity of a reporting group).

Updating ML/TF risk assessment

A reporting entity must update its ML/TF risk assessment to address any issues identified by a review:

for a significant change that is within the control of the reporting entity—before the significant change occurs; or

in any other case—as soon as practicable after the review is completed.

26E Reporting entities must have up-to-date ML/TF risk assessment before providing designated services

A reporting entity must not commence to provide a designated service to a customer if the reporting entity does not comply with section 26C or 26D in relation to the designated service.

Subsection (1) is a civil penalty provision.

A reporting entity that contravenes subsection (1) commits a separate contravention of that subsection in respect of each designated service that the reporting entity provides to a customer at or through a permanent establishment of the reporting entity in Australia.

A reporting entity that contravenes subsection (1) commits a separate contravention of that subsection on each day that the reporting entity provides designated services at or through a permanent establishment of the reporting entity in a foreign country.

26F Reporting entities must develop and maintain AML/CTF policies

(1) A reporting entity must develop and maintain policies, procedures, systems and controls (AML/CTF policies) that:

appropriately manage and mitigate the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services; and

ensure the reporting entity complies with the obligations imposed by this Act, the regulations and the AML/CTF Rules on the reporting entity; and

are appropriate to the nature, size and complexity of the reporting entity’s business; and

comply with any requirements specified in the AML/CTF Rules.

Note: See also section 26U (business of a lead entity of a reporting group).

Additional obligations that apply to reporting entities that provide designated services at or through permanent establishments in Australia

Subsections (3) and (4) apply if the reporting entity provides a designated service at or through a permanent establishment of the reporting entity in Australia.

Without limiting paragraph (1)(a), the AML/CTF policies of a reporting entity must deal with the following:

identifying significant changes to any of the matters mentioned in subsection 26C(3);

carrying out customer due diligence in accordance with Part 2;

reviewing and updating the AML/CTF policies in the following circumstances:

in response to a review of the reporting entity’s ML/TF risk assessment under section 26D;

circumstances specified in the AML/CTF Rules;

reviewing the AML/CTF policies of the reporting entity at the intervals or with the frequency specified in the AML/CTF Rules (and in any event at least once every 3 years);

any other matters specified in the AML/CTF Rules.

Without limiting paragraph (1)(b), the AML/CTF policies of a reporting entity must deal with the following:

if the reporting entity is not an individual—ensuring its governing body is sufficiently informed of the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services;

designating an AML/CTF compliance officer for the reporting entity;

designating one or more senior managers of the reporting entity as responsible for approving:

the AML/CTF policies of the reporting entity; and

the ML/TF risk assessment of the reporting entity;

undertaking due diligence in relation to persons who are, or will be, employed or otherwise engaged by the reporting entity and who perform, or will perform, functions relevant to the reporting entity’s obligations under this Act;

providing training to persons who are employed or otherwise engaged by the reporting entity and who perform, or will perform, functions relevant to the reporting entity’s obligations under this Act in relation to:

the risk of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services; and

the obligations imposed by this Act, the regulations and the AML/CTF Rules on the reporting entity;

the conduct of independent evaluations of the reporting entity’s AML/CTF program, including the frequency with which such evaluations must be conducted, which must:

be appropriate to the nature, size and complexity of the reporting entity’s business; and

be at least once every 3 years;

any other matters specified in the AML/CTF Rules.

Note: See also section 26U (business of a lead entity of a reporting group).

Additional obligations that apply to lead entities of reporting groups

Without limiting paragraph (1)(a), if a reporting entity is the lead entity of a reporting group, the AML/CTF policies of the reporting entity must deal with the following:

ensuring the appropriate sharing of information between members of the reporting group for the following purposes:

carrying out customer due diligence under Part 2;

appropriately identifying, assessing, managing and mitigating the risks of money laundering, financing of terrorism and proliferation financing that each reporting entity that is a member of the reporting group may reasonably face in providing its designated services;

any other matters specified in the AML/CTF Rules.

Without limiting paragraph (1)(b), if a reporting entity is the lead entity of a reporting group, the AML/CTF policies of the reporting entity must deal with the following:

ensuring the sharing of information between members of the reporting group that is necessary for the members of the reporting group who are reporting entities to comply with:

their obligations imposed by this Act, the regulations and the AML/CTF Rules; and

the AML/CTF policies of the lead entity;

if any member of the reporting group discharges an obligation imposed on another member of the reporting group by this Act, the regulations or the AML/CTF Rules:

which members of the reporting group may discharge which obligations of which other member; and

ensuring that each member of the reporting group that is a reporting entity makes, or has access to, records to demonstrate any discharge by another member of the reporting group of any such obligations imposed on the reporting entity;

ensuring the confidentiality and appropriate use of any information shared between members of the reporting group, including to prevent any contravention of subsection 123(1) by any member of the reporting group;

any other matters specified in the AML/CTF Rules.

Note: For other rules about how this Part applies in relation to reporting groups, see sections 26U and 236B.

AML/CTF Rules

The AML/CTF Rules may do either or both of the following:

specify requirements that must be complied with in relation to a matter mentioned in subsection (3), (4), (5) or (6);

set out circumstances in which the AML/CTF policies of a reporting entity are taken to comply with a matter mentioned in those subsections.

Reporting entities must develop and maintain AML/CTF policies before providing designated services

A reporting entity must not commence to provide a designated service to a customer if the reporting entity does not comply with subsection (1).

Civil penalty

Subsection (8) is a civil penalty provision.

A reporting entity that contravenes subsection (8) commits a separate contravention of that subsection in respect of each designated service that the reporting entity provides to a customer at or through a permanent establishment of the reporting entity in Australia.

A reporting entity that contravenes subsection (8) commits a separate contravention of that subsection on each day that the reporting entity provides designated services at or through a permanent establishment of the reporting entity in a foreign country.

Exception

Despite subsection (1), a reporting entity is not required to develop or maintain policies, procedures, systems and controls that specifically deal with the risk of proliferation financing if:

the reporting entity reasonably assesses, under section 26C or 26D, the risk of proliferation financing that the reporting entity may reasonably face as low; and

the reporting entity reasonably assesses that its risk of proliferation financing can be appropriately managed and mitigated by its policies, procedures, systems and controls that manage and mitigate the risks of money laundering or financing of terrorism.

A person who wishes to rely on subsection (11) bears a legal burden in relation to that matter.

26G Reporting entities must comply with AML/CTF policies

A reporting entity must comply with the AML/CTF policies of the reporting entity.

If:

a reporting entity is a member of a reporting group; and

the reporting entity is not the lead entity of the reporting group;

the reporting entity must also comply with the AML/CTF policies of the lead entity of the reporting group that apply to the reporting entity.

Note: The lead entity of the reporting group must comply with its own AML/CTF policies under subsection (1).

Subsections (1) and (2) are civil penalty provisions.

26H AML/CTF responsibilities of governing bodies

The governing body of a reporting entity must:

exercise appropriate ongoing oversight of:

the reporting entity’s identification and assessment of risk for the purposes of its ML/TF risk assessment; and

the reporting entity’s compliance with its AML/CTF policies, the Act, the regulations and the AML/CTF Rules; and

take reasonable steps to ensure that the reporting entity:

is appropriately identifying, assessing, managing and mitigating the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services; and

is otherwise complying with its AML/CTF policies, the Act, the regulations and the AML/CTF Rules.

A reporting entity contravenes this subsection if the governing body of the reporting entity contravenes subsection (1).

Subsection (2) is a civil penalty provision.

26J Reporting entities must designate an individual as the AML/CTF compliance officer for the reporting entity

(1) The reporting entity must designate an individual as the compliance officer (the AML/CTF compliance officer) for the reporting entity.

AML/CTF compliance officers must have sufficient authority etc.

A reporting entity must ensure that the individual designated as the AML/CTF compliance officer for the reporting entity:

is a person employed or otherwise engaged by the reporting entity at management level; and

has sufficient authority, independence and access to resources and information to ensure the individual can perform the functions of an AML/CTF compliance officer effectively.

AML/CTF compliance officers must meet certain requirements

An individual is not eligible to be designated as the AML/CTF compliance officer for a reporting entity unless the individual:

if the reporting entity provides its designated services at or through a permanent establishment of the reporting entity in Australia—is a resident of Australia; and

is a fit and proper person; and

meets the requirements (if any) specified in the AML/CTF Rules.

The AML/CTF Rules may specify matters to which a reporting entity must have regard in determining whether an individual is a fit and proper person for the purposes of paragraph (3)(b).

Civil penalties

Subsection (2) is a civil penalty provision.

A reporting entity contravenes this subsection if:

the reporting entity designates an individual as its AML/CTF compliance officer; and

the individual is not eligible under subsection (3) to be designated as the AML/CTF compliance officer for the reporting entity.

Subsection (6) is a civil penalty provision.

26K Reporting entities must have an AML/CTF compliance officer

If:

a reporting entity commences to provide a designated service; and

an individual is not designated as the AML/CTF compliance officer for the reporting entity;

the reporting entity must, no later than 28 days after the day on which the reporting entity commences to provide the designated service, designate an individual as the AML/CTF compliance officer for the reporting entity.

If:

a reporting entity commences to provide a designated service; and

the individual designated as the AML/CTF compliance officer for the reporting entity ceases to be eligible under subsection 26J(3) to be so designated;

the reporting entity must, no later than 28 days after the day on which the individual ceases to be eligible, designate another individual as the AML/CTF compliance officer for the reporting entity.

If:

a reporting entity is required under subsection (1) or (2) to designate an individual as the AML/CTF compliance officer for the reporting entity by a particular time; and

the reporting entity does not do so by that time;

then the obligation to comply with the requirement continues until:

the reporting entity designates an individual as the AML/CTF compliance officer for the reporting entity; or

the reporting entity ceases to be a reporting entity;

whichever occurs first.

(4) A reporting entity that contravenes subsection (1) or (2) by failing to designate an individual as the AML/CTF compliance officer for the reporting entity by a particular time (the deadline) is taken to commit a separate contravention of that subsection on each day that occurs during the period:

beginning on the day on which the deadline occurs; and

ending on the day on which the reporting entity’s obligation to comply with the requirement ends (see subsection (3)).

To avoid doubt, a reporting entity does not contravene subsection (1) or (2) more than once on any particular day, even if the reporting entity commences to provide a designated service more than once on a particular day or during a particular period.

Subsections (1) and (2) are civil penalty provisions.

26L AML/CTF compliance officer’s functions

The functions of the AML/CTF compliance officer for a reporting entity are:

to oversee and coordinate the reporting entity’s day-to-day compliance with this Act, the regulations and the AML/CTF Rules; and

to oversee and coordinate the effective operation of and compliance with the reporting entity’s AML/CTF policies; and

to communicate, on behalf of the reporting entity, with AUSTRAC; and

to do anything incidental to or conducive to the performance of any of the above functions; and

any other functions specified in the AML/CTF Rules.

26M Reporting entities must notify AUSTRAC of entity’s AML/CTF compliance officer

A reporting entity must notify AUSTRAC of the individual who is designated as the reporting entity’s AML/CTF compliance officer within 14 days after the individual is designated as the AML/CTF compliance officer for the reporting entity.

A notice under subsection (1):

must be in the approved form; and

must contain such information, and be accompanied by such documents, as is required by the approved form.

Subsection (1) is a civil penalty provision.

26N AML/CTF program documentation

A reporting entity must document the following, within the period (if any) specified in the AML/CTF Rules:

its AML/CTF program;

any other matter relating to the AML/CTF program of the reporting entity specified in the AML/CTF Rules.

A reporting entity must comply with subsection (1).

Subsection (2) is a civil penalty provision.

(4) If a reporting entity is the responsible entity of a registered scheme (within the meaning of the Corporations Act 2001), the reporting entity’s AML/CTF program may be documented in the same document as the registered scheme’s compliance plan under that Act.

26P AML/CTF program approvals

A reporting entity’s ML/TF risk assessment and AML/CTF policies, including any updates to either, must be approved by a senior manager of the reporting entity.

Any updates to a reporting entity’s ML/TF risk assessment must be notified, in writing, to the governing body of the reporting entity as soon as practicable after the update is made.

A reporting entity must comply with a requirement under this section.

Subsection (3) is a civil penalty provision.

26Q Requests for AML/CTF documentation

The AUSTRAC CEO may, by written notice, request a reporting entity to produce one or more of the documents required by subsection 26N(1) within the period specified in the notice.

A reporting entity must comply with a notice given under subsection (1).

If:

a person is given a notice under subsection (1) in relation to one or more documents; and

the person reasonably believes that the documents are privileged from being produced on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the documents within the period specified in the request.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

Subsections (2) and (2A) are civil penalty provisions.

26R AUSTRAC CEO may require reporting entity to undertake ML/TF risk assessment etc.

Scope

This section applies if the AUSTRAC CEO is satisfied that:

a reporting entity does not have an AML/CTF program; or

the AML/CTF program of a reporting entity is not up to date; or

the AML/CTF program of a reporting entity does not appropriately identify, assess, manage or mitigate the risk of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services.

Requirement

The AUSTRAC CEO may, by written notice given to the reporting entity, require the reporting entity to:

do one or more of the following:

undertake and document an ML/TF risk assessment of the reporting entity;

review and update the ML/TF risk assessment of the reporting entity;

develop and document AML/CTF policies of the reporting entity;

review and update the AML/CTF policies of the reporting entity; and

provide a copy of the documentation within:

the period specified in the notice; or

if the AUSTRAC CEO allows a longer period—that longer period.

A person commits an offence if:

the person is subject to a requirement under subsection (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty

A reporting entity must comply with a requirement under subsection (2).

Subsection (4) is a civil penalty provision.

26S Registered remittance affiliates of a registered remittance network provider

A reporting entity that is a registered remittance network provider must make available an AML/CTF program to its registered remittance affiliates.

Subsection (1) is a civil penalty provision.

To avoid doubt, subsection (1) does not prevent any of the registered remittance affiliates from:

undertaking a risk assessment for the remittance affiliate; or

developing AML/CTF policies for the remittance affiliate.

If a senior manager of a remittance affiliate of a registered remittance network provider approves the registered remittance network provider’s:

ML/TF risk assessment; and

AML/CTF policies;

the remittance affiliate is taken to have complied with the remittance affiliate’s obligations under section 26C and 26F in respect of the remittance affiliate’s designated services to which the registered remittance network provider’s AML/CTF program applies.

26T Application of Part to holders of Australian financial services licences

This section applies if all of the designated services provided by a 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.

Paragraph 26F(1)(a) applies in relation to the reporting entity as if it instead required policies, procedures, systems and controls that:

relate to undertaking initial customer due diligence in accordance with section 28; and

are appropriate to the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services.

The following provisions of this Part do not apply to the reporting entity:

paragraphs 26F(1)(b) and (3)(a) to (d) and subsection 26F(4);

section 26H;

subsection 26P(2);

Division 5.

26U Business of a lead entity of a reporting group

In applying this Part in relation to a reporting entity that is the lead entity of a reporting group, a reference to the nature, size and complexity of the reporting entity’s business is taken to be a reference to the nature, size and complexity of the business of the lead entity and each other reporting entity that is a member of the reporting group.

Note: For other rules about how this Part applies in relation to a lead entity of a reporting group, see section 236B.

26V General exemptions

This Part does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

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.

This Part does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

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.

27 Simplified outline

The following is a simplified outline of this Part:

• A reporting entity must undertake initial customer due diligence before providing a designated service to a customer. However, in special cases, initial customer due diligence may be carried out after the provision of the designated service.

• A reporting entity must undertake ongoing customer due diligence in relation to the provision by the reporting entity of designated services.

• Simplified customer due diligence may be undertaken in certain low risk circumstances as part of initial and ongoing customer due diligence.

• Enhanced customer due diligence must be undertaken in certain circumstances as part of initial and ongoing customer due diligence.

• Certain pre-commencement customers are subject to modified customer due diligence.

• Exemptions from initial customer due diligence, and ongoing customer due diligence, apply in certain circumstances.

28 Undertaking initial customer due diligence

A reporting entity must not commence to provide a designated service to a customer if the reporting entity has not established on reasonable grounds each of the matters in subsection (2) in relation to the customer.

Note 1: See also section 31 (simplified customer due diligence).

Note 2: See also section 32 (enhanced customer due diligence).

Note 3: See section 36 for rules that apply to pre-commencement customers.

The matters are as follows:

the identity of the customer;

the identity of any person on whose behalf the customer is receiving the designated service;

the identity of any person acting on behalf of the customer and their authority to act;

if the customer is not an individual—the identity of any beneficial owners of the customer;

whether the customer, any beneficial owner of the customer, any person on whose behalf the customer is receiving the designated service, or any person acting on behalf of the customer is:

a politically exposed person; or

a person designated for targeted financial sanctions;

the nature and purpose of the business relationship or occasional transaction;

any other matter relating to the customer that is specified in the AML/CTF Rules.

Without limiting subsection (1), a reporting entity must do the following for the purposes of establishing on reasonable grounds the matters in subsection (2):

if the customer is an individual—take reasonable steps to establish that the customer is the person the customer claims to be;

identify the ML/TF risk of the customer, based on KYC information about the customer that is reasonably available to the reporting entity before commencing to provide the designated service;

collect KYC information about the customer that is appropriate to the ML/TF risk of the customer;

verify, using reliable and independent data, such of the KYC information referred to in paragraph (c) as is appropriate to the ML/TF risk of the customer.

If a reporting entity provides its designated services at or through a permanent establishment of the reporting entity in Australia, a reporting entity must take into account the following matters when identifying the ML/TF risk of the customer for the purposes of paragraph (3)(b):

the reporting entity’s ML/TF risk assessment;

the kind of customer to whom the designated services will be provided;

the kinds of designated services provided, or proposed to be provided, by the reporting entity to the customer;

the delivery channels by which the reporting entity’s designated services are or will be provided to the customer;

the countries with which the reporting entity deals, or will deal, in providing its designated services to the customer;

the matters (if any) specified in the AML/CTF Rules.

Subsection (4) does not limit the matters a reporting entity may take into account for the purposes of paragraph (3)(b).

The AML/CTF Rules may do either or both of the following:

specify requirements that must be complied with for the purposes of establishing on reasonable grounds the matters in subsection (2);

set out circumstances in which a reporting entity is taken to comply with a matter mentioned in that subsection.

Without limiting paragraph (2)(g) or (4)(f) or subsection (6), AML/CTF Rules made for the purposes of any of those provisions may make different provision in relation to different classes of customers, including:

customers in relation to whom simplified due diligence measures may be taken in accordance with section 31; and

customers in relation to whom enhanced customer due diligence measures must be undertaken in accordance with section 32.

Note: This subsection also does not limit subsection 13(3) of the Legislation Act 2003 or subsection 33(3AB) of the Acts Interpretation Act 1901: see section 249.

Subsection (1) is a civil penalty provision.

A reporting entity that contravenes subsection (1) in relation to a customer commits a separate contravention of that subsection in respect of each designated service that the reporting entity provides to the customer at or through a permanent establishment of the reporting entity in Australia.

A reporting entity that contravenes subsection (1) in relation to a customer commits a separate contravention of that subsection on each day that the reporting entity provides designated services to the customer at or through a permanent establishment of the reporting entity in a foreign country.

29 Exemptions from initial customer due diligence

Despite subsection 28(1), a reporting entity may commence to provide a designated service to a customer before the reporting entity complies with that subsection if:

circumstances specified in the AML/CTF Rules apply; and

the reporting entity determines on reasonable grounds that commencing to provide the designated service to the customer before subsection 28(1) is complied with in relation to the customer is essential to avoid interrupting the ordinary course of business; and

the reporting entity has AML/CTF policies to comply with subsection 28(1) in relation to the customer:

as soon as reasonably practicable after commencing to provide the designated service to the customer; and

within the period (if any) specified in the AML/CTF Rules; and

the reporting entity determines on reasonable grounds that any additional risk of money laundering, terrorism financing or proliferation financing associated with complying with subsection 28(1) in relation to the customer after commencing to provide the designated service to the customer is low; and

the reporting entity implements AML/CTF policies to mitigate and manage the associated risks; and

the reporting entity complies with the requirements (if any) specified in the AML/CTF Rules.

30 Undertaking ongoing customer due diligence

A reporting entity must monitor its customers in relation to the provision of its designated services to appropriately identify, assess, manage and mitigate the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing designated services.

Note 1: See also section 31 (simplified customer due diligence).

Note 2: See also section 32 (enhanced customer due diligence).

Note 3: See section 36 for rules that apply to pre-commencement customers.

Without limiting subsection (1), if the reporting entity provides its designated services at or through a permanent establishment of the reporting entity in Australia, the reporting entity must:

monitor for unusual transactions and behaviours of customers that may give rise to a suspicious matter reporting obligation; and

if the reporting entity has a business relationship with a customer—review and, where appropriate, update the reporting entity’s identification and assessment of the ML/TF risk of the customer in the following circumstances:

if there is a significant change to any of the matters mentioned in subsection 28(4);

if there are unusual transactions and behaviours in relation to the customer that may give rise to a suspicious matter reporting obligation;

circumstances specified in the AML/CTF Rules; and

if the reporting entity has a business relationship with a customer—review and, where appropriate, update and reverify KYC information relating to the customer at a frequency appropriate to the ML/TF risk of the customer, and if either of the following occur:

the reporting entity has doubts about the adequacy or veracity of the KYC information relating to the customer;

circumstances specified in the AML/CTF Rules; and

if the reporting entity has a business relationship with a customer that is a pre-commencement customer—monitor for significant changes in the nature and purpose of the business relationship that may result in the ML/TF risk of the customer being medium or high; and

comply with any other requirements specified in the AML/CTF Rules.

Note: For suspicious matter reporting obligation, see section 41.

The AML/CTF Rules may do either or both of the following:

specify requirements that must be complied with in relation to the matters mentioned in subsection (2);

set out circumstances in which a reporting entity is taken to comply with a matter mentioned in that subsection.

Without limiting subparagraph (2)(b)(iii) or (2)(c)(ii), paragraph (2)(e) or subsection (3), AML/CTF Rules made for the purposes of any of those provisions may make different provision in relation to different classes of customers, including:

customers in relation to whom simplified due diligence measures may be taken in accordance with section 31; and

customers in relation to whom enhanced customer due diligence measures must be undertaken in accordance with section 32.

Note: This subsection also does not limit subsection 13(3) of the Legislation Act 2003 or subsection 33(3AB) of the Acts Interpretation Act 1901: see section 249.

(5) For the purposes of this section, unusual transactions and behaviours of a customer include the following:

unusually large or complex transactions relating to the customer;

transactions and behaviours that are part of an unusual pattern of transactions and behaviours relating to the customer;

transactions and behaviours that have no apparent economic or lawful purpose;

transactions and behaviours that are inconsistent with what the reporting entity reasonably knows about any of the following:

the customer;

the nature and purpose of the business relationship;

the ML/TF risk of the customer;

where relevant, the customer’s source of funds or source of wealth.

Subsection (1) is a civil penalty provision.

A reporting entity that contravenes subsection (1) in relation to a customer commits a separate contravention of that subsection in respect of each designated service that the reporting entity provides to the customer at or through a permanent establishment of the reporting entity in Australia.

A reporting entity that contravenes subsection (1) in relation to a customer commits a separate contravention of that subsection on each day that the reporting entity provides designated services to the customer at or through a permanent establishment of the reporting entity in a foreign country.

Registered remittance affiliates

If an obligation is imposed by subsection (1) on a reporting entity in its capacity as a registered remittance affiliate of a registered remittance network provider, the obligation may be discharged by the registered remittance network provider.

Exemption

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.

31 Simplified customer due diligence

In complying with the obligation imposed on a reporting entity under subsection 28(1) or 30(1) in relation to a customer, the reporting entity may apply simplified customer due diligence measures if:

the ML/TF risk of the customer is low; and

section 32 does not apply to the customer; and

the reporting entity complies with the requirements specified in the AML/CTF Rules.

32 Enhanced customer due diligence obligation

In complying with the obligation imposed on a reporting entity under subsection 28(1) or 30(1) in relation to a customer, the reporting entity must apply enhanced customer due diligence measures appropriate to the ML/TF risk of the customer if one or more of the following apply to the customer:

the ML/TF risk of the customer is high;

if:

a suspicious matter reporting obligation arises for the reporting entity in relation to the customer; and

the reporting entity proposes to continue to provide a designated service or designated services to the customer;

the customer, any beneficial owner of the customer, any person on whose behalf the customer is receiving the designated service, or any person acting on behalf of the customer, is a foreign politically exposed person;

the customer, any beneficial owner of the customer, any person on whose behalf the customer is receiving the designated service, or any person acting on behalf of the customer, is:

an individual who is physically present in a high risk jurisdiction for which the international body known as the Financial Action Task Force has called for enhanced due diligence to be applied; or

a body corporate or legal arrangement that was formed in a high risk jurisdiction for which the international body known as the Financial Action Task Force has called for enhanced due diligence to be applied;

(e) the designated service provided or proposed to be provided to the customer is provided or proposed to be provided as part of a nested services relationship;

the customer is of a kind specified in the AML/CTF Rules.

Note: For suspicious matter reporting obligation, see section 41.

35A Reporting entities may disclose certain personal information to credit reporting bodies for identity verification purposes

A reporting entity may, to assist in verifying the identity of an individual for the purposes of this Act, the regulations or the AML/CTF Rules:

disclose any or all of the following personal information to a credit reporting body for the purposes of making a request referred to in paragraph (b):

the individual’s name;

the individual’s residential address;

the individual’s date of birth; and

request the credit reporting body to provide an assessment of whether the personal information so disclosed matches (in whole or part) personal information held by the credit reporting body.

A reporting entity must not make a verification request in relation to an individual unless, before making the request:

the individual was given information about:

the reasons for making the request; and

the personal information about the individual that may be disclosed to the credit reporting body; and

the fact that the reporting entity may request the credit reporting body to provide an assessment of whether the personal information matches (in whole or part) personal information held by the credit reporting body; and

the fact that the credit reporting body may prepare and provide to the reporting entity such an assessment; and

the fact that the credit reporting body may use the personal information about the individual, and personal information held by the body that is the names, residential addresses and dates of birth of other individuals, for the purpose of preparing such an assessment; and

the individual expressly agreed to the making of the request and the disclosure of the personal information; and

an alternative means of verifying the identity of the individual was made available to the individual.

A disclosure of personal information under paragraph (1)(a) is taken to be authorised by this Act for the purposes of paragraph 6.2(b) of Australian Privacy Principle 6.

35B Credit reporting bodies may use and disclose certain personal information for identity verification purposes

A credit reporting body that receives a verification request from a reporting entity in relation to an individual may:

prepare and provide to the reporting entity an assessment in accordance with this section of whether any or all of the following personal information matches (in whole or part) personal information held by the credit reporting body:

the individual’s name;

the individual’s residential address;

the individual’s date of birth; and

use the personal information about the individual, and personal information held by the credit reporting body that is the names, residential addresses and dates of birth of other individuals, for the purpose of preparing the assessment.

An assessment provided under subsection (1) to a reporting entity:

must be an overall assessment of the extent of the match between the personal information disclosed by the reporting entity and personal information held by the credit reporting body; and

must not include separate assessments of the match between particular categories of that personal information.

(3) To the extent that providing an assessment in relation to an individual involves a disclosure of personal information held by the credit reporting body to a person, body or agency other than the individual, the disclosure is taken to be authorised by this Act for the purposes of paragraph 20E(3)(e) of the Privacy Act 1988.

35C Reporting entities to notify inability to verify identity

This section applies if:

a reporting entity makes a verification request in relation to an individual; and

an assessment is provided in relation to the individual; and

the reporting entity is unable to verify the identity of the individual, having regard to the assessment.

The reporting entity must give a written notice to the individual:

stating that the reporting entity is unable to verify the identity of the individual having regard to the assessment; and

specifying the name of the credit reporting body that provided the assessment; and

offering the individual an alternative means of verifying the identity of the individual.

35D Verification information not to be collected or held by a credit reporting body

Subject to section 35E, a credit reporting body must not collect or hold personal information about an individual that relates to a verification request or an assessment in relation to the individual.

35E Retention of verification information—credit reporting bodies

A credit reporting body that receives a verification request in relation to an individual must retain the following information for 7 years after the request was received:

the name of the reporting entity that made the request;

the date on which the request was made;

the personal information about the individual that was provided by the reporting entity to the credit reporting body;

the date on which the credit reporting body provided an assessment (if any) in relation to the individual;

such other information about the verification request as is specified in the AML/CTF Rules.

A credit reporting body that retains information under subsection (1) must delete the information at the end of the 7 year period referred to in that subsection.

Civil penalty

Subsections (1) and (2) are civil penalty provisions.

35F Retention of verification information—reporting entities

A reporting entity that makes a verification request in relation to an individual must make a record of the following;

the name of the credit reporting body to which the request was made;

the personal information about the individual that was provided by the reporting entity to the credit reporting body;

the assessment (if any) provided by the credit reporting body in relation to the individual;

such other information about the verification request as is specified in the AML/CTF Rules.

The reporting entity must retain the record, or a copy of the record, until the end of the first 7 year period:

that began at a time after the verification request was made; and

throughout the whole of which the reporting entity did not provide any designated services to the individual.

A reporting entity that retains a record, or a copy of a record, under subsection (2) must delete the record at the end of the 7 year period referred to in that subsection.

Civil penalty

Subsections (1), (2) and (3) are civil penalty provisions.

35G Access to verification information

A credit reporting body or a reporting entity in possession or control of personal information, or other information of a kind referred to in subsection 35E(1), that relates to a verification request or an assessment in relation to an individual must take reasonable steps to ensure that the individual can obtain access to the information.

35H Unauthorised access to verification information—offence

A person commits an offence if:

the person obtains access to information; and

the information is personal information that relates to a verification request or an assessment in relation to an individual.

Penalty: 300 penalty units.

Subsection (1) does not apply if the access is obtained in accordance with, or as otherwise authorised by, this Act or any other law.

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

35J Obtaining access to verification information by false pretences—offence

A person commits an offence if:

the person obtains access to information; and

the information is personal information that relates to a verification request or an assessment in relation to an individual; and

the information is obtained by false pretence.

Penalty: 300 penalty units.

35K Unauthorised use or disclosure of verification information—offence

A person commits an offence if:

the person uses or discloses information; and

the information is personal information that relates to a verification request or an assessment in relation to an individual.

Penalty: 300 penalty units.

Subsection (1) does not apply if the use or disclosure is in accordance with, or as otherwise authorised by, this Act or any other law.

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

35L Breach of requirement is an interference with privacy

A breach of a requirement of this Division in relation to an individual constitutes an act or practice involving an interference with the privacy of the individual for the purposes of Privacy Act 1988.section 13 of the

Note: The act or practice may be the subject of a complaint under section 36 of that Act.

36 Pre-commencement customers

(1) A customer of a reporting entity is a pre-commencement customer if:

the reporting entity commenced before 12 December 2007 to provide a designated service covered by an item of table 1, 2 or 3 in section 6 of this Act to the customer; or

(b) the business relationship between the reporting entity and the customer involved the provision of only any of the following designated services in section 6 of this Act as at the start of 1 July 2026:

designated services covered by item 2 of table 2 in section 6;

designated services covered by table 5 in section 6;

designated services covered by table 6 in section 6.

A pre-commencement customer of a reporting entity ceases to be a pre-commencement customer when the reporting entity complies with subsection 28(1) in relation to the customer.

Subsection 28(1) and paragraph 30(2)(b) do not apply in relation to a customer that is a pre-commencement customer.

However, subsection 28(1) applies in relation to a customer that is a pre-commencement customer if:

a suspicious matter reporting obligation arises for the reporting entity in relation to the customer; or

there is a significant change in the nature and purpose of the business relationship with the customer which results in the ML/TF risk of the customer being medium or high.

Note: For suspicious matter reporting obligation, see section 41.

37 Collection and verification of KYC information may be carried out by an agent of a reporting entity

The principles of agency apply in relation to a reporting entity complying with paragraphs 28(3)(c) and (d).

Note: The reporting entity (and not its agent) will be liable to civil penalties for contraventions of this Part for providing designated services to its customers without complying with paragraphs 28(3)(c) and (d) in respect of its customers.

For example, a reporting entity may authorise another person to be its agent for the purposes of complying with paragraphs 28(3)(c) and (d) on the reporting entity’s behalf.

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:

that agent; or

any other person;

to be its agent for the purposes of complying with paragraphs 28(3)(c) and (d) in respect of the customer on the reporting entity’s behalf.

This section does not otherwise limit the operation of the principles of agency for the purposes of this Act.

37A Reliance on collection and verification of KYC information or other procedures—agreements or arrangements

This section applies if:

(a) a reporting entity (the first entity) enters into a written agreement or arrangement with another person relating to the first entity’s reliance on the collection and verification of KYC information relating to a customer in accordance with paragraphs 28(3)(c) and (d), or other procedures of a kind prescribed by the AML/CTF Rules, carried out by the other person; and

at the time of entering into the agreement or arrangement, the first entity had reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules were met.

If:

the agreement or arrangement is in force; and

the first entity has complied with section 37B in relation to the agreement or arrangement; and

the first entity is providing, or proposes to provide, a designated service to a customer; and

under the agreement or arrangement, the first entity has obtained information about the identity of that customer from the other party to the agreement or arrangement; and

the requirements prescribed by the AML/CTF Rules are satisfied;

this Act (other than Part 10) has effect as if the first entity had complied with paragraphs 28(3)(c) and (d) in respect of that customer and that designated service.

If:

the agreement or arrangement is in force; and

after completing an assessment under section 37B in relation to the agreement or arrangement, the first entity does not have reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules for the purposes of paragraph (1)(b) is being met;

then subsection (2) does not apply in relation to the first entity and the agreement or arrangement in connection with the carrying out of procedures covered by paragraph (1)(a) after the completion of that assessment.

Subsection (3) ceases to apply once the first entity has reasonable grounds to believe that each of the requirements prescribed by the AML/CTF Rules for the purposes of paragraph (1)(b) is being met.

37B Regular assessments of agreement or arrangement covered by section 37A

If a reporting entity enters into an agreement or arrangement of a kind referred to in subsection 37A(1), then, while the agreement or arrangement is in force, the reporting entity must:

carry out assessments in accordance with the AML/CTF Rules; and

carry out those assessments at the times worked out in accordance with the AML/CTF Rules; and

prepare a written record of each assessment within 10 business days after the day of completing the assessment.

Civil penalty

Subsection (1) is a civil penalty provision.

38 Reliance on collection and verification of KYC information or other procedures—other circumstances

If:

(a) a reporting entity (the first entity) is providing, or proposes to provide, a designated service to a customer; and

another person has complied with paragraph 28(3)(c) or (d), or another procedure of a kind prescribed by the AML/CTF Rules, in respect of that customer; and

the first entity has obtained, from the other person, information about the identity of that customer that was obtained by the other person in the course of carrying out that procedure; and

the first entity has reasonable grounds to believe that it is appropriate to rely on that procedure in relation to that designated service having regard to the risk the first entity may reasonably face that the provision of that designated service might (whether inadvertently or otherwise) involve or facilitate money laundering, financing of terrorism or proliferation financing; and

the requirements prescribed by the AML/CTF Rules are satisfied;

this Act (other than Part 10) has effect as if the first entity had complied with paragraph 28(3)(c) or (d) in respect of that customer and that designated service.

39 General exemptions

This Part does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

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.

This Part does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

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.

This Part (other than Divisions 3 and 4) does not apply to a designated service covered by item 40, 42 or 44 of table 1 in section 6.

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.

39A Exemption—assisting the investigation of certain offences

This section applies if:

a reporting entity receives a keep open notice in relation to a customer; and

the keep open notice is in force.

Despite any other provision of this Part or Part 1A, section 28, 30 or 26G does not apply to the reporting entity in respect of the provision of a designated service to the customer to the extent that the reporting entity reasonably believes that compliance with that section would or could reasonably be expected to alert the customer to the existence of a criminal investigation.

Note 1: A suspicious matter reporting obligation does not arise for a reporting entity in relation to a customer upon the receipt of a keep open notice. However, a suspicious matter reporting obligation may otherwise arise for the reporting entity in relation to the customer in accordance with section 41.

Note 2: A keep open notice does not compel a reporting entity to continue to provide a designated service to a customer.

For the purposes of subsection (2), it is immaterial whether the reporting entity knows of the existence or otherwise of a criminal investigation.

If subsection (2) applies in relation to the provision by a reporting entity of a designated service to a customer, section 139 (providing a designated service using a false customer name or customer anonymity) does not apply in relation to the provision by the reporting entity of that designated service to the customer.

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

39B Keep open notices

(1) A senior member of an agency mentioned in subsection (4) may issue a notice (a keep open notice) to a reporting entity if the senior member reasonably believes that the provision of a designated service by the reporting entity to a customer would assist in the investigation by the agency of a serious offence.

(2) A serious offence is:

an offence against a law of the Commonwealth, or a law of a State or Territory, that is punishable by imprisonment for 2 years or more; or

an offence against a law of a foreign country that involves an act or omission that, if it had occurred in Australia, would have constituted an offence covered by paragraph (a).

(3) A senior member of an agency is:

the head of an agency mentioned in subsection (4); or

a statutory office holder of an agency mentioned in subsection (4); or

an officer or employee of an agency mentioned in subsection (4) that:

is an SES employee or acting SES employee in the agency; or

holds or is acting in a position in the agency that is equivalent to or higher than a position occupied by an SES employee; or

holds or is acting in a position that is prescribed by the AML/CTF Rules for the purposes of this paragraph.

The agencies are as follows:

the Australian Border Force;

the Australian Crime Commission;

the Australian Federal Police;

the National Anti-Corruption Commission;

(e) the New South Wales Crime Commission;

the police force or police service of a State or the Northern Territory;

a Commonwealth, State or Territory agency prescribed by the AML/CTF Rules.

A keep open notice must:

be in the form prescribed by the AML/CTF Rules for the purposes of this paragraph; and

contain such information, and be accompanied by such documents, as is required by the AML/CTF Rules.

Subject to subsections (7) and (8), a keep open notice is in force for the period:

starting on the day specified in the notice; and

ending on the earlier of:

the day that is 6 months after the day specified in the notice; and

if the investigation to which the notice relates has ended—the day the agency that issued the notice notifies the reporting entity and the AUSTRAC CEO that the relevant investigation has ended.

(7) A senior member of an agency that issued a keep open notice to a reporting entity may, by notice (an extension notice) to the reporting entity in the form prescribed by the AML/CTF Rules for the purposes of this subsection, extend the period for which the keep open notice remains in force for a further period of 6 months if:

the extension notice is issued to the reporting entity before the expiry of the keep open notice; and

subject to subsection (8), the keep open notice has not previously been extended more than once under this subsection; and

the senior member of the agency reasonably believes that the continued provision of a designated service by the reporting entity to the customer would assist in the investigation by the agency of a serious offence.

Paragraph (7)(b) does not apply in relation to an extension notice if:

the keep open notice has previously been extended at least twice under subsection (7); and

a senior member of the agency that issued the keep open notice applies to the AUSTRAC CEO in the form prescribed by the AML/CTF Rules for the purposes of this paragraph; and

the AUSTRAC CEO is satisfied that the continued provision of a designated service by the reporting entity to the customer would assist in the investigation by the agency of a serious offence; and

the AUSTRAC CEO gives notice, in writing, to the agency that paragraph (7)(b) does not apply in relation to the extension notice.

The AUSTRAC CEO may give a notice under paragraph (8)(d) more than once in relation to a particular keep open notice.

39C Keep open notices—AUSTRAC oversight

This section applies if a senior member of an agency mentioned in subsection 39B(4) issues to a reporting entity:

a keep open notice under subsection 39B(1); or

an extension notice under subsection 39B(7).

The senior member of the agency must send a copy of the keep open notice or extension notice to the AUSTRAC CEO at the same time the notice is issued to the reporting entity.

The AUSTRAC CEO may revoke:

a keep open notice issued under subsection 39B(1); or

an extension notice under subsection 39B(7);

if the AUSTRAC CEO is satisfied that the notice does not comply with the requirements of this Act or the AML/CTF Rules.

If the AUSTRAC CEO revokes a notice under subsection (3), the AUSTRAC CEO must notify:

the agency that issued the notice; and

the reporting entity to whom the notice was issued.

39D Exemption—when a suspicious matter reporting obligation arises

This section applies if a suspicious matter reporting obligation arises for a reporting entity in relation to a customer.

Note: For suspicious matter reporting obligation, see section 41.

Despite any other provision of this Part or Part 1A, section 28, 30, or 26G does not apply to the reporting entity in respect of the provision of a designated service to the customer to the extent that the reporting entity reasonably believes that compliance with that section would or could reasonably be expected to alert the customer to the reporting entity’s suspicion.

39E Exemptions—specified conditions

Section 28 (undertaking initial customer due diligence) does not apply to a reporting entity in respect of the provision of a designated service to a customer if:

the designated service is specified in column 1 of an item of the following table; and

the conditions (if any) specified in column 2 of the item are satisfied; and

the reporting entity does not have an enhanced due diligence obligation in relation to the customer under section 32.

39F Exemption—intermediary institutions

Divisions 1 to 6 do not apply to a designated service covered by item 31 of table 1 in section 6.

Note: Item 31 of table 1 in section 6 deals with an intermediary institution passing on a transfer message in a value transfer chain.

A reporting entity must monitor its customers, in relation to the provision of a designated service covered by item 31 of table 1 in section 6 at or through a permanent establishment of the reporting entity in Australia, to identify unusual transactions and behaviours of the customers (within the meaning of section 30) that may give rise to a suspicious matter reporting obligation.

Note: For suspicious matter reporting obligation, see section 41.

Subsection (2) is a civil penalty provision.

A reporting entity that contravenes subsection (2) commits a separate contravention of that subsection in respect of each designated service that the reporting entity provides to a customer.

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 provides an international value transfer service, the person must give the AUSTRAC CEO a report about the provision of the service.

• If a person provides a designated service involving a transfer of virtual assets to or from an unverified self hosted virtual asset wallet, the person must give the AUSTRAC CEO a report about the provision of the service.

• A reporting entity may be required to give AML/CTF compliance reports to the AUSTRAC CEO.

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):

the reporting entity commences to provide, or proposes to provide, a designated service to the first person; or

both:

the first person requests the reporting entity to provide a designated service to the first person; and

the designated service is of a kind ordinarily provided by the reporting entity; or

both:

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

the designated service is of a kind ordinarily provided by the reporting entity;

and any of the following conditions is satisfied:

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;

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;

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 investigation of, or prosecution of a person for, an evasion, or an attempted evasion, of a taxation law; or

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

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

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:

if paragraph (1)(d), (e), (f), (i) or (j) applies and paragraph (aa) of this subsection does not apply—3 business days after the day on which the reporting entity forms the relevant suspicion; or

if:

paragraph (1)(d), (e), (f), (i) or (j) applies; and

the reporting entity reasonably believes that some (but not all) of the information required to be contained in the report may be privileged from being given on the ground of legal professional privilege; and

the privilege, if it exists, belongs to a person other than the reporting entity;

5 business days after the day on which the reporting entity forms the relevant suspicion; or

if paragraph (1)(g) or (h) applies—24 hours after the time when the reporting entity forms the relevant suspicion.

Despite subsection (2), the reporting entity may refuse to give the AUSTRAC CEO a report about the matter if the reporting entity reasonably believes that all of the information comprising the grounds on which the reporting entity holds the relevant suspicion is privileged from being given on the ground of legal professional privilege.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

A report under subsection (2) must:

be in the approved form; and

if the reporting entity reasonably believes that some (but not all) of the information required to be contained in the report about the matter is privileged from being given on the ground of legal professional privilege—be accompanied by an LPP form in relation to the information; and

contain such information relating to the matter as is specified in the AML/CTF Rules; and

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.

Note 3: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

Civil penalty

Subsection (2) is a civil penalty provision.

Reasonable grounds for suspicion

The AML/CTF Rules may specify matters that are to be taken into account in determining whether there are reasonable grounds for a reporting entity to form a suspicion of a kind mentioned in paragraph (1)(d), (e), (f), (g), (h), (i) or (j).

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

42 Exemptions

This Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

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.

This Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

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.

This Division does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the entity in a foreign country, other than a service covered by item 32A of table 1 in section 6.

43 Reports of threshold transactions

Scope

This section applies to a reporting entity if:

the reporting entity commences to provide, or provides, a designated service to a customer; and

the provision of the service involves a threshold transaction.

Report

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.

A report under subsection (2) must:

be in the approved form; and

if the reporting entity reasonably believes that information required to be contained in the report about the transaction is privileged from being given on the ground of legal professional privilege—be accompanied by an LPP form in relation to the information; and

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.

Note 3: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

Civil penalty

Subsection (2) is a civil penalty provision.

44 Exemptions

This Division does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

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.

This Division does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

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.

This Division does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the entity in a foreign country, other than a service covered by item 32A of table 1 in section 6.

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.

Section 43 does not apply to a designated service that is:

provided by a reporting entity that is an ADI; and

provided to a customer that is an ADI.

Section 43 does not apply to a designated service that is:

provided by a reporting entity that is the holder of an exchange settlement account; and

provided to a customer that is the holder of an exchange settlement account; and

provided using the exchange settlement accounts held by the reporting entity and the customer.

45 International value transfer services

(1) A service is an international value transfer service if:

the service is covered by item 29 or 30 of table 1 in section 6; and

either:

the value to be transferred is in Australia and, as a result of the provision of the service, the value will be in a foreign country; or

the value to be transferred is in a foreign country and, as a result of the provision of the service, the value will be in Australia.

(2) For the purposes of subsection (1), the AML/CTF Rules may specify the circumstances in which the value is in a country.

46 Reports of international value transfer services

Scope

This section applies to a reporting entity if:

the reporting entity commences to provide an international value transfer service at or through a permanent establishment of the reporting entity in Australia; and

such other conditions (if any) as are set out in the AML/CTF Rules are satisfied.

Report

The reporting entity must give the AUSTRAC CEO a report about the provision of the international value transfer service within 10 business days after the reporting entity passes on or receives the transfer message for the transfer of value.

Subsection (2) does not apply if, within the 10 business day period mentioned in that subsection, the reporting entity:

reasonably determines that the transfer of value will not occur; and

takes reasonable steps to ensure that the transfer of value will not occur.

A report under subsection (2) must:

be in accordance with the approved form, or in a manner specified in the AML/CTF Rules; and

contain the information required by the AML/CTF Rules.

Note: For additional rules about reports, see section 244.

Obligation must be discharged by intermediary institution in certain circumstances

The AML/CTF Rules may specify circumstances in which the obligation imposed on a reporting entity by subsection (2) must be discharged by an intermediary institution in the value transfer chain. If the AML/CTF Rules specify such circumstances, the obligation imposed by subsection (2) must be discharged by the intermediary institution in accordance with the AML/CTF Rules.

Obligation may be discharged by intermediary institution in certain circumstances

The obligation imposed on a reporting entity by subsection (2) may be discharged by an intermediary institution in the value transfer chain if:

the intermediary institution is an intermediary institution that provides, or will provide, the designated service covered by item 31 of table 1 in section 6; and

the reporting entity has entered into a written agreement or arrangement with the intermediary institution; and

the written agreement or arrangement enables the intermediary institution to comply with the obligation.

Civil penalty

Subsections (2) and (5) are civil penalty provisions.

Exemptions

This section does not apply to an international value transfer service of a kind specified in the AML/CTF Rules.

This section does not apply to a transfer of value that occurs in circumstances specified in the AML/CTF Rules.

46A Reports of transfers of value involving unverified self-hosted virtual asset wallets

Scope

This section applies to a reporting entity if:

the reporting entity commences to provide a designated service covered by item 29 or 30 of table 1 in section 6 at or through a permanent establishment of the reporting entity in Australia; and

the service involves:

receiving virtual assets transferred from a self-hosted virtual asset wallet; or

transferring virtual assets to a self-hosted virtual asset wallet; and

the person who controls the self-hosted virtual asset wallet has not been verified by the reporting entity in accordance with the reporting entity’s AML/CTF program.

Report

The reporting entity must give the AUSTRAC CEO a report about the provision of the designated service within 10 business days after commencing to provide the service.

A report under subsection (2) must:

be in accordance with the approved form, or in a manner specified in the AML/CTF Rules; and

contain the information required by the AML/CTF Rules.

Note: For additional rules about reports, see section 244.

Civil penalty

Subsection (2) is a civil penalty provision.

Exemptions

This section does not apply to transfer of value of a kind specified in the AML/CTF Rules.

This section does not apply to a transfer of value that occurs in circumstances specified in the AML/CTF Rules.

47 AML/CTF compliance reports

Scope

This section applies if the AML/CTF Rules provide that, for the purposes of this section:

a specified period is a reporting period; and

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

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.

A report under subsection (2) must:

be in the approved form; and

contain such information as is required by the approved form.

Note: For additional rules about reports, see section 244.

Civil penalty

Subsection (2) is a civil penalty provision.

Exemption

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.

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

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.

However:

the report given; or

giving the report;

is not admissible in evidence against the person:

in civil proceedings other than:

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

in criminal proceedings other than:

proceedings for an offence against section 136 that relates to section 47; or

(ii) proceedings for an offence against Criminal Code that relates to section 47 of this Act.section 137.1 of the

48A Amending or withdrawing reports

The AML/CTF Rules may make provision in relation to the amendment or withdrawal of a report given under section 41, 43, 46 or 46A.

Without limiting subsection (1), the AML/CTF Rules may deal with the following:

timeframes within which requests to amend or withdraw a report may or must be made;

timeframes within which a report must be amended or withdrawn if a request is accepted;

the process for making and deciding requests to amend or withdraw a report;

the consequences for amending or withdrawing a report.

49 Further information to be given to the AUSTRAC CEO etc.

(1) If a reporting entity communicates information to the AUSTRAC CEO under Financial Transaction Reports Act 1988, then:section 41, 43, 46 or 46A of this Act, or a reporting entity communicated information to the AUSTRAC CEO under subsection 16(1) or (1A) of the repealed

the AUSTRAC CEO; or

the Commissioner of the Australian Federal Police; or

the Chief Executive Officer of the Australian Crime Commission; or

the Commissioner of Taxation; or

the Comptroller-General of Customs; or

the National Anti-Corruption Commissioner; or

an investigating officer who is carrying out an investigation arising from, or relating to the matters mentioned in, the information;

may, by written notice given to the reporting entity or any other person, require the reporting entity or other person:

to give such further information as is specified in the notice, within the period and in the manner specified in the notice, to the extent to which the reporting entity or other person has that information; or

to produce, within the period and in the manner specified in the notice, such documents as are:

specified in the notice; and

(ii) relevant to the matter to which the communication under Financial Transaction Reports Act 1988, relates; andsection 41, 43, 46 or 46A of this Act, or subsection 16(1) or (1A) of the repealed

in the possession or control of the reporting entity or other person.

(1A) A person (the issuer) must not give a notice under subsection (1) to another person (the recipient) unless the issuer reasonably believes that the recipient has knowledge of the information, or possession or control of the document, that is specified in the notice.

The period specified in the notice for giving the information or document must be at least 14 days after the notice is given unless:

the recipient is the reporting entity who communicated information to the AUSTRAC CEO under section 41, 43, 46 or 46A; or

both of the following apply:

the issuer considers that specifying a shorter period is necessary;

the shorter period specified is reasonable in the circumstances.

Compliance

A person must comply with a notice under subsection (1).

Subsections (2) and (4) are civil penalty provisions.

Legal professional privilege

If:

a person is given a notice under subsection (1) in relation to information or a document; and

the person reasonably believes that the information or document is privileged from being given or produced on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information or document within the period specified in the notice.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

49A AML/CTF Rules may make provision in relation to reports by registered remittance affiliates

The AML/CTF Rules may make provision for and in relation to reports required by this Part to be given by a reporting entity that is a registered remittance affiliate of a registered remittance network provider.

Without limiting subsection (1), the AML/CTF Rules may provide:

that an obligation imposed by this Part upon a registered remittance affiliate of a registered remittance network provider to provide a report is taken instead, or in addition, to be an obligation imposed upon the registered remittance network provider; and

that an obligation imposed by this Part on a registered remittance affiliate of a registered remittance network provider may be discharged by the registered remittance network provider; and

that a report required to be provided as mentioned in paragraph (a) must, or may, be given by the registered remittance network provider in the manner specified in the AML/CTF Rules.

49B Notice to obtain information or documents in certain circumstances

Scope

This section applies if a person has information or a document that may assist the AUSTRAC CEO with:

obtaining or analysing information to support efforts to combat money laundering, terrorism financing, proliferation financing or other serious crimes; or

identifying trends, patterns, threats or vulnerabilities associated with money laundering, terrorism financing, proliferation financing or other serious crimes;

for the purposes of the performance of functions of the AUSTRAC CEO.

Requirements

The AUSTRAC CEO may, by written notice given to the person, require the person:

to give to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such information; or

to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents.

The AUSTRAC CEO must not give a notice under subsection (2) to a person unless the AUSTRAC CEO reasonably believes that the person has knowledge of the information, or possession or control of the document, that is specified in the notice.

Content of notice

The period specified in the notice in accordance with paragraph (2)(a) or (b) must be at least 14 days after the notice is given unless:

the AUSTRAC CEO considers that specifying a shorter period is necessary; and

the shorter period specified is reasonable in the circumstances.

A notice under subsection (2) must set out the effect of the following provisions:

subsection (6A);

subsection (7);

section 136;

section 137.

Note 1: Section 136 is about giving false or misleading information.

Note 2: Section 137 is about producing false or misleading documents.

Compliance

A person must comply with a notice under subsection (2).

Legal professional privilege

If:

a person is given a notice under subsection (2) in relation to information or a document; and

the person reasonably believes that the information or document is privileged from being given or produced on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information or document within the period specified in the notice.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

Subsections (6) and (6A) are civil penalty provisions.

49C Authorisation to obtain information or documents in certain circumstances

Scope

This section applies if a person has information or a document that may assist the AUSTRAC CEO with:

obtaining or analysing information to support efforts to combat money laundering, terrorism financing, proliferation financing or other serious crimes; or

identifying trends, patterns, threats or vulnerabilities associated with money laundering, terrorism financing, proliferation financing or other serious crimes;

for the purposes of the performance of functions of the AUSTRAC CEO.

Authorisation

The AUSTRAC CEO may, by written notice given to the person, authorise the person:

to give to the AUSTRAC CEO any such information; or

to produce to the AUSTRAC CEO any such documents.

Content of notice

A notice under subsection (2) must set out the effect of the following provisions:

subsection (5);

section 136;

section 137.

Note 1: Section 136 is about giving false or misleading information.

Note 2: Section 137 is about producing false or misleading documents.

Information disclosure etc.

A person may give information or produce a document to the AUSTRAC CEO in accordance with a notice under subsection (2).

Note: This subsection constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws.

This section applies despite any general law obligation of confidence.

50 Request to obtain information about the identity of holders of foreign credit cards and foreign debit cards

Scope

This section applies to a reporting entity if:

under the Commissioner of Taxation has required the reporting entity to give information about the identity of:section 49, the AUSTRAC CEO or

the holder of, or a signatory to, a particular credit card account; or

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

the reporting entity does not have that information.

Direction to reporting entity

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.

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

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:

20 business days after the day on which the subsection (2) direction was given; or

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.

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:

20 business days after the day on which the subsection (2) direction was given; or

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.

A report under subsection (4) or (5) must:

be in the approved form; and

if the reporting entity reasonably believes that information relating to the matter is privileged from being given on the ground of legal professional privilege—be accompanied by an LPP form in relation to the information; and

in a case where the card issuer has given the information to the reporting entity—contain the information; and

contain such other information (if any) relating to the matter as is required by the approved form.

Note 1: For additional rules about reports given to the AUSTRAC CEO, see section 244.

Note 2: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

Civil penalty

Subsections (3), (4) and (5) are civil penalty provisions.

50A Secrecy—information obtained under section 49, 49B or 49C

A person commits an offence if:

the person is, or has been, an entrusted investigating official; and

the person has obtained information under section 49, 49B or 49C; and

the person makes a record of, discloses or otherwise uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exception

Subsection (1) does not apply if:

the making of the record, disclosure or use is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers as an entrusted investigating official; or

the disclosure is to an AUSTRAC entrusted person or to another entrusted investigating official for the purposes of, or in connection with, the performance or exercise of the AUSTRAC entrusted person’s or other official’s functions, duties or powers; or

the disclosure is to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official.

Note: A defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection (see subsection 13.3(3) of the Criminal Code). For IGIS officials, see section 34C of the Inspector-General of Intelligence and Security Act 1986.

Courts or tribunals

(3) Except where it is necessary to do so for the purposes of giving effect to this Act or the repealed Financial Transaction Reports Act 1988, a person who is, or has been, an entrusted investigating official is not to be required:

to produce a document containing information obtained by the person under section 49, 49B or 49C to a court or tribunal; or

to disclose information obtained by the person under section 49, 49B or 49C to a court or tribunal.

51 Division 400 and Chapter 5 of the Criminal Code

If a person, or an officer, employee or agent of a person, communicates or gives information under Criminal Code, not to have been in possession of that information at any time.section 41, 43, 46, 46A, 49, 49B or 49C, the person, officer, employee or agent is taken, for the purposes of Division 400 and Chapter 5 of the

52 Simplified outline of this Part

• Cross-border movements of monetary instruments must be reported to the AUSTRAC CEO, a customs officer or a police officer if the total value moved is $10,000 or more.

53 Reports about movements of monetary instruments into or out of Australia

Offence

A person commits an offence if:

either:

the person moves one or more monetary instruments into Australia; or

the person moves one or more monetary instruments out of Australia; and

the sum of the monetary instrument amounts is $10,000 or more; and

a report in respect of the movement is not given in accordance with this section.

Penalty: Imprisonment for 2 years or 500 penalty units, or both.

Civil penalty

A person must not:

move one or more monetary instruments into Australia; or

move one or more monetary instruments out of Australia;

if:

the sum of the monetary instrument amounts is $10,000 or more; and

a report in respect of the movement is not given in accordance with this section.

Subsection (2) is a civil penalty provision.

Commercial carriers

Subsections (1) and (2) do not apply to a person if:

the person is a commercial passenger carrier; and

the monetary instruments are in the possession of any of the carrier’s passengers.

Subsections (1) and (2) do not apply to a person if:

the person is a commercial goods carrier; and

the monetary instruments are carried on behalf of another person.

A person who wishes to rely on subsection (4) or (5) bears an evidential burden in relation to that matter.

Requirements for reports under this section

A report under this section must:

be in the approved form; and

contain the information specified in the AML/CTF Rules; and

be given to the AUSTRAC CEO, a customs officer or a police officer; and

comply with the applicable timing rule in the AML/CTF Rules.

Note 1: For additional rules about reports, see section 244.

Note 2: Division 8 of Part 15 sets out special enforcement powers relating to this section.

Note 3: See also section 18 (translation of foreign currency to Australian currency).

54 Reports about receipts of monetary instruments moved into Australia

Offence

A person commits an offence if:

the person receives one or more monetary instruments moved into Australia to the person; and

at the time of the receipt, the sum of the monetary instrument amounts is $10,000 or more; and

a report in respect of the receipt is not given in accordance with this section.

Penalty: Imprisonment for 2 years or 500 penalty units, or both.

Civil penalty

A person must not receive one or more monetary instruments moved into Australia to the person if:

at the time of the receipt, the sum of the monetary instrument amounts is $10,000 or more; and

a report in respect of the receipt is not given in accordance with this section.

Subsection (2) is a civil penalty provision.

Requirements for reports under this section

A report under this section must:

be in the approved form; and

contain the information specified in the AML/CTF Rules; and

be given to the AUSTRAC CEO, a customs officer or a police officer; and

be given before the end of 5 business days beginning on the day of the receipt.

Note 1: For additional rules about reports, see section 244.

Note 2: See also section 18 (translation of foreign currency to Australian currency).

55 Movements of monetary instruments into Australia

For the purposes of this Act, a person moves a monetary instrument into Australia if the person brings or sends the instrument into Australia.

56 Movements of monetary instruments out of Australia

(1) For the purposes of this Act, a person moves a monetary instrument out of Australia if the person takes or sends the instrument out of Australia.

For the purposes of this Act, if:

a person arranges to leave Australia on an aircraft or ship; and

either:

the person has a monetary instrument in the person’s baggage, and the person enters a place at which customs officers examine passports; or

the person takes a monetary instrument into a place at which customs officers examine passports;

the person is taken to have moved the instrument out of Australia when the person leaves that place.

57 Obligations of customs officers and police officers

If a customs officer or police officer receives a report under section 53 or 54, the officer must forward it to the AUSTRAC CEO before the end of 5 business days beginning on the day of the receipt.

61 Power to affix notices about reporting obligations

Scope

This section applies to a written notice:

that relates to reporting obligations under this Part; and

the form and contents of which are specified in the AML/CTF Rules.

Power to affix notices

A customs officer may affix, or arrange for another person to affix, one or more notices:

on any part of an aircraft or ship; or

in any other place specified in the AML/CTF Rules.

Offence

A person commits an offence if:

a notice has been affixed under this section; and

the person engages in conduct; and

the person’s conduct results in:

interference with the notice; or

the removal of the notice; or

defacement of the notice.

Penalty: 50 penalty units.

Subsection (3) does not apply if the person’s conduct is authorised by the AUSTRAC CEO or the Comptroller-General of Customs.

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

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

This section applies to a written notice:

that relates to reporting obligations under this Part; and

the form and contents of which are specified in the AML/CTF Rules.

Notice to be given to travellers

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:

give a copy of the notice, or communicate the information contained in the notice in the manner prescribed by the AML/CTF Rules, to all persons travelling on the aircraft or ship (including members of the crew); or

cause a copy of the notice to be given, or cause to be communicated the information contained in the notice in the manner prescribed by the AML/CTF Rules, to all persons travelling on the aircraft or ship (including members of the crew).

Offence

A person commits an offence if:

the person is subject to a requirement under subsection (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: 50 penalty units.

An offence against subsection (3) is an offence of strict liability.

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

63 Simplified outline

The following is a simplified outline of this Part.

An ordering institution, a beneficiary institution and an intermediary institution in a transfer of value must fulfil certain obligations in relation to the transfer.

The obligations of an ordering institution relate to the information the institution collects, verifies and provides as part of the transfer.

The obligations of a beneficiary institution relate to the information the institution receives or otherwise obtains as part of the transfer.

The obligations of an intermediary institution relate to the information the institution receives and provides as part of the transfer.

Additional obligations apply if the transfer of value is a transfer of a virtual asset.

63A Key terms relating to transfers of value

Ordering institutions

(1) Whether a person is an ordering institution is to be determined in accordance with the AML/CTF Rules.

Without limiting subsection (1), AML/CTF Rules made for the purposes of that subsection may specify the following:

criteria or other requirements that a person must satisfy to be an ordering institution;

circumstances in which a person is an ordering institution.

(4) However, none of the following persons are an ordering institution:

a person who transfers value in circumstances where the transfer is reasonably incidental to the provision of another service unless:

the person is a financial institution; or

the person is providing an international value transfer service incidentally to a designated service covered by item 50, 50A or 50B of table 1 in section 6; or

the person is providing an international value transfer service incidentally to a designated service covered by table 3 in section 6;

a person specified in the AML/CTF Rules.

Beneficiary institutions

(5) Whether a person is a beneficiary institution is to be determined in accordance with the AML/CTF Rules.

Without limiting subsection (5), AML/CTF Rules made for the purposes of that subsection may specify the following:

criteria or other requirements that a person must satisfy to be a beneficiary institution;

circumstances in which a person is a beneficiary institution.

(8) However, none of the following persons are a beneficiary institution:

a person who makes value available in circumstances where the making available of the value is reasonably incidental to the provision of another service unless:

the person is a financial institution;

the person is providing an international value transfer service incidentally to a designated service covered by item 50, 50A or 50B of table 1 in section 6;

the person is providing an international value transfer service incidentally to a designated service covered by table 3 in section 6;

a person specified in the AML/CTF Rules.

Intermediary institution

(9) A person is an intermediary institution if the person:

in the course of carrying on a business, receives and passes on a transfer message for a transfer of value in a value transfer chain; or

is specified in the AML/CTF Rules.

(10) However, none of the following persons are an intermediary institution:

a person who solely provides the infrastructure that permits persons to send transfer messages for a transfer of value to another person in the value transfer chain;

a person who is specified in the AML/CTF Rules.

Value transfer chain

(11) The following persons are taken to form a value transfer chain:

the ordering institution;

each intermediary institution (if any) between the ordering institution and the beneficiary institution;

the beneficiary institution.

Institutions

(12) Each person in a value transfer chain is an institution.

Payer and payee may be same person etc.

For the purposes of this Act:

the payer and the payee in relation to a transfer of value may be the same person; and

the ordering institution and the beneficiary institution in relation to a transfer of value may be the same person.

64 Obligations of ordering institutions

Scope

This section applies if an ordering institution commences to provide the designated service covered by item 29 of table 1 in section 6.

Note 1: For exemptions, see sections 67 and 67A.

Note 2: An ordering institution may also have obligations under the Autonomous Sanctions Act 2011 and the Charter of the United Nations Act 1945 in relation to persons designated for targeted financial sanctions.

Obligations of ordering institution

Before the ordering institution passes on a transfer message for the transfer of value, or otherwise gives effect to the transfer of value, the ordering institution must:

collect the information specified in the AML/CTF Rules; and

if required by the AML/CTF Rules—verify the information specified in the AML/CTF Rules in accordance with sections 28 and 30 (as applicable).

If the ordering institution and the beneficiary institution for the transfer of value are not the same person, the ordering institution must pass on the information specified in the AML/CTF Rules relating to the transfer of value to the next institution in the value transfer chain.

If the transfer message for the transfer of value does not give effect to the transfer of value then, for the purposes of subsection (3), the message must be passed on before, or at the same time as, the ordering institution gives effect to the transfer of value.

The ordering institution must provide the following information to another institution in the value transfer chain as soon as practicable after receiving a request from the institution for that information:

the information specified by the AML/CTF Rules for the purposes of paragraph (2)(a);

the information specified by the AML/CTF Rules for the purposes of subsection (3).

AML/CTF Rules

(6) AML/CTF Rules made for the purposes of this section may make different provision in relation to different kinds of institutions, information, circumstances or any other matter. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

Civil penalty

Subsections (2), (3) and (5) are civil penalty provisions.

65 Obligations of beneficiary institutions

Scope

This section applies if a beneficiary institution commences to provide the designated service covered by item 30 of table 1 in section 6 to a payee.

Note: For exemptions, see sections 67 and 67A.

Obligations of beneficiary institution

The beneficiary institution must take reasonable steps to monitor:

whether it has received the information specified in the AML/CTF Rules relating to the transfer of value; and

whether the information received about the payee is accurate.

If:

the beneficiary institution:

detects that it has not received all of the information mentioned in paragraph (2)(a); and

has not otherwise obtained the information; or

the beneficiary institution detects that some or all of the information received or otherwise obtained about the payee is not accurate;

then the beneficiary institution must, in accordance with its AML/CTF program, do at least one of the following:

refuse to make the transferred value available to the payee;

take such other action as the beneficiary institution determines.

Note: See also section 26G (reporting entities must comply with AML/CTF policies).

AML/CTF Rules

(4) AML/CTF Rules made for the purposes of this section may make different provision in relation to different kinds of institutions, information, circumstances or any other matter. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

Civil penalty

Subsection (2) is a civil penalty provision.

66 Obligations of intermediary institutions

Scope

This section applies if an intermediary institution commences to provide the designated service covered by item 31 of table 1 in section 6 in relation to a transfer of value.

Note 1: For exemptions, see section 67.

Note 2: An intermediary institution may also have obligations under the Autonomous Sanctions Act 2011 and the Charter of the United Nations Act 1945 in relation to persons designated for targeted financial sanctions.

Obligations of intermediary institutions

The intermediary institution must take reasonable steps to monitor whether it has received the information specified in the AML/CTF Rules relating to the transfer of value.

If the intermediary institution detects that it has not received all of the information mentioned in subsection (2), and the intermediary institution has not otherwise obtained the information, the intermediary institution must, in accordance with its AML/CTF program, do at least one of the following:

refuse to pass on the transfer message for the transfer of value;

take such other action as the intermediary institution determines.

Note: See also section 26G (reporting entities must comply with AML/CTF policies).

In passing on a transfer message for a transfer of value, the intermediary institution must include:

information, of a kind specified in the AML/CTF Rules, that is received from the previous institution in the value transfer chain; or

information obtained in accordance with the intermediary institution’s AML/CTF program that is relevant to the transfer.

The intermediary institution must provide the information referred to in subsection (4) to another institution in the value transfer chain as soon as practicable after receiving a request from the institution for that information.

AML/CTF Rules

(6) AML/CTF Rules made for the purposes of this section may make different provision in relation to different kinds of institutions, information, circumstances or any other matter. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

Civil penalty

Subsections (2), (4) and (5) are civil penalty provisions.

66A Obligations of ordering and beneficiary institutions relating to virtual asset transfers

Scope

This section applies to the transfer of a virtual asset.

Ordering institution obligations

Before commencing to provide the designated service covered by item 29 of table 1 in section 6, an ordering institution must undertake due diligence to determine, on reasonable grounds, whether the virtual asset wallet to which the virtual asset is being transferred is:

a custodial wallet controlled by a person who is licensed or registered under a law that gives effect to the FATF Recommendations; or

a custodial wallet controlled by a person who is not required to be licensed or registered under a law that gives effect to the FATF Recommendations; or

a custodial wallet controlled by a person who is required to be licensed or registered under a law that gives effect to the FATF Recommendations, but is not so licensed or registered; or

a self-hosted wallet controlled by the payee.

The ordering institution must pass on the information specified in the AML/CTF Rules for the purposes of subsection 64(3) relating to the transfer of value to a beneficiary institution if the beneficiary institution is:

a person who is licensed or registered under a law that gives effect to the FATF Recommendations; or

a person who is not required to be licensed or registered under a law that gives effect to the FATF Recommendations.

An ordering institution must not provide the designated service covered by item 29 of table 1 in section 6 if this would involve passing on a transfer message for a transfer of value to a person:

who is required to be licensed or registered under a law that gives effect to the FATF Recommendations; but

is not so licensed or registered.

Beneficiary institution obligations

Before commencing to provide the designated service covered by item 30 of table 1 in section 6, a beneficiary institution must undertake due diligence to determine, on reasonable grounds, whether the virtual asset wallet from which the virtual asset has been transferred is:

a custodial wallet controlled by a person who is licensed or registered under a law that gives effect to the FATF Recommendations; or

a custodial wallet controlled by a person who is not required to be licensed or registered under a law that gives effect to the FATF Recommendations; or

a custodial wallet controlled by a person who is required to be licensed or registered under a law that gives effect to the FATF Recommendations, but is not so licensed or registered; or

a self-hosted wallet controlled by the payer.

A beneficiary institution must not provide the designated service covered by item 30 of table 1 in section 6 in relation to a transfer of value until the beneficiary institution has received or otherwise obtained the information specified in the AML/CTF Rules for the purposes of subsection 65(2) in relation to the transfer.

A beneficiary institution must not provide the designated service covered by item 30 of table 1 in section 6 if:

the virtual asset wallet from which the virtual asset has been transferred is a custodial wallet controlled by a person who is required to be licensed or registered under a law that gives effect to the FATF Recommendations; and

the person is not so licensed or registered.

Civil penalty

Subsections (2) to (7) are civil penalty provisions.

Exceptions

Subsection (3) does not apply if:

either:

the ordering institution has established on reasonable grounds that the beneficiary institution is not capable of receiving the information securely; or

the ordering institution reasonably believes that there is a risk that the beneficiary institution is not capable of safeguarding the confidentiality of the information; and

the ordering institution makes and keeps a record of the reasons for not passing on the information.

Subsection (6) does not apply if:

the beneficiary institution has established on reasonable grounds that an institution in the value transfer chain is not capable of passing on the information securely; and

in accordance with the beneficiary institution’s AML/CTF program, the beneficiary institution appropriately identifies, assesses, mitigates and manages the risks of money laundering, financing of terrorism and proliferation financing that the beneficiary institution may reasonably face in providing the designated service.

A person who wishes to rely on subsection (9) or (10) bears an evidential burden in relation to that matter.

67 Exemptions—general

The AML/CTF Rules may provide that this Part, or a specified provision of this Part, does not apply:

to a specified kind of designated service; or

to a transfer of value that occurs in specified circumstances.

(2) AML/CTF Rules made for the purposes of subsection (1) may make different provision in relation to different kinds of institutions, information, circumstances or any other matter. This does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

67A Exemption—escrow services

This section applies to a person if:

the person is any of the following:

a qualified accountant;

a reporting entity that uses qualified accountants to supply professional accounting services;

a legal practitioner (however described);

a reporting entity that uses legal practitioners (however described) to supply professional legal services; and

the person provides a designated service covered by item 3 of table 6 in section 6 for the purposes of an escrow agreement.

Despite section 6, the designated service provided by the person, to the extent that it is provided for the purposes of the escrow agreement, is not also a designated service covered by item 29 or 30 of table 1 in that section.

68 Defence of relying on information supplied by another person

Scope

This section applies to section 175 proceedings for a contravention of a civil penalty provision of Division 2.

Defence

In the proceedings, it is a defence if the defendant proves that:

the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information given by another person; and

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.

73 Simplified outline

The following is a simplified outline of this Part:

• This Part provides for a tiered system of registration for providers of registrable remittance network services and providers of registrable remittance services.

• Division 2 sets out offences and civil penalties in relation to the provision of registrable remittance network services and registrable remittance services by persons who are not registered.

• Division 3 requires the AUSTRAC CEO to maintain the Remittance Sector Register and sets out the process of applying for registration.

74 Unregistered persons must not provide certain remittance services

Registrable remittance network services

(1) A person (the first person) must not provide a registrable remittance network service to another person if:

the first person is not a registered remittance network provider; or

the first person is a registered remittance network provider, but the person to whom the service is provided is not a registered remittance affiliate of the first person.

Registrable remittance services—independents

A person must not provide a registrable remittance service if:

the person provides the service other than as part of a remittance network operated by a registered remittance network provider; and

the person is not a registered independent remittance dealer.

Registrable remittance services—affiliates

A person must not provide a registrable remittance service if:

the person provides the service as part of a remittance network operated by a registered remittance network provider; and

the person is not a registered remittance affiliate of the registered remittance network provider.

Breach of conditions

A person must not breach a condition to which the registration of the person as any of the following is subject:

a remittance network provider;

an independent remittance dealer;

a remittance affiliate of a registered remittance network provider.

Offences

A person commits an offence if:

the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 2 years or 500 penalty units, or both.

Strict liability applies to paragraphs (2)(b) and (c).

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

A person commits an offence if:

the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

the AUSTRAC CEO previously:

gave the person a direction under subsection 191(2) in relation to subsection (1), (1A), (1B) or (1C) of this section; or

accepted an undertaking given by the person under section 197 in relation to subsection (1), (1A), (1B) or (1C) of this section; and

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.

Strict liability applies to paragraphs (4)(b) and (c).

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

A person commits an offence if:

the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

the AUSTRAC CEO previously:

gave the person a direction under subsection 191(2) in relation to subsection (1), (1A), (1B) or (1C) of this section; or

accepted an undertaking given by the person under section 197 in relation to subsection (1), (1A), (1B) or (1C) of this section; and

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.

Strict liability applies to paragraphs (6)(b) and (c).

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

A person commits an offence if:

the person is subject to a requirement under subsection (1), (1A), (1B) or (1C); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

either:

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 Crimes Act 1914 in respect of an offence against subsection (2), (4) or (6), and that order has not been set aside.section 19B of the

Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.

Strict liability applies to paragraphs (8)(b) and (c).

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

Civil penalty

Subsections (1), (1A), (1B) and (1C) are civil penalty provisions.

75 Remittance Sector Register

The AUSTRAC CEO must maintain a register for the purposes of this Part, to be known as the Remittance Sector Register.

The AUSTRAC CEO may maintain the Remittance Sector Register by electronic means.

The Remittance Sector Register is not a legislative instrument.

The AML/CTF Rules may make provision for and in relation to the following:

the correction of entries in the Remittance Sector Register;

the publication of the Remittance Sector Register in whole or part, or of specified information entered on the Remittance Sector Register;

any other matter relating to the administration or operation of the Remittance Sector Register.

75A Information to be entered on the Remittance Sector Register

If the AUSTRAC CEO decides to register a person under subsection 75C(2), the AUSTRAC CEO must enter the following details on the Remittance Sector Register:

the name of the person;

whether the person is registered as:

a remittance network provider; or

an independent remittance dealer; or

a remittance affiliate of a registered remittance network provider;

if the person is registered as a remittance affiliate of a registered remittance network provider—the name of the registered remittance network provider;

any conditions to which the registration of the person is subject;

the date on which the registration takes effect;

the registrable details in relation to the person.

To avoid doubt, nothing in this Part prevents separate entries being entered on the Remittance Sector Register in relation to the same person in different capacities.

75B Applications for registration

A person may apply in writing to the AUSTRAC CEO for registration as:

a remittance network provider; or

an independent remittance dealer; or

subject to subsection (5)—a remittance affiliate of a registered remittance network provider.

A registered remittance network provider may apply in writing to the AUSTRAC CEO for another person to be registered as a remittance affiliate of the registered remittance network provider.

An application under subsection (1) or (2) must:

be in the approved form; and

contain the information required by the AML/CTF Rules.

Without limiting the information that the AML/CTF Rules may require under paragraph (3)(b), the AML/CTF Rules may require information relating to the matters mentioned in paragraph 75C(2)(a) or in Rules made under paragraph 75C(2)(b) (these provisions deal with matters to which the AUSTRAC CEO must have regard in deciding whether to register a person).

A person may apply for registration as a remittance affiliate of a registered remittance network provider as mentioned in paragraph (1)(c) only if:

either:

when the person makes the application, the person is a registered independent remittance dealer; or

the application is made in conjunction with an application by the person for registration as a registered independent remittance dealer; and

the registered remittance network provider has consented to the making of the application.

Deemed refusal in certain circumstances

(6) If the AUSTRAC CEO has not made a decision on the application within the relevant period, the AUSTRAC CEO is taken to have decided not to register the person at the end of the relevant period. The relevant period is the period of 90 days beginning on the latest of the following days:

the day the application is made;

if the AUSTRAC CEO requests information under subsection 75N(1) in relation to the application—the last day such information is provided;

if the person makes a submission under section 75Q in relation to the application—the day the person makes the submission.

Note: A deemed decision not to register the person is reviewable (see Part 17A).

However, if the AUSTRAC CEO determines in writing that:

the application cannot be dealt with properly within the 90 day period, either because of its complexity or because of other special circumstances; and

that period is extended by a specified period of not more than 30 days;

the relevant period is that period as so extended. The AUSTRAC CEO must notify the applicant in writing of the determination before the end of the 90 day period.

75C Registration by AUSTRAC CEO

When section applies

This section applies if an application has been made under section 75B for registration of a person.

When AUSTRAC CEO must register a person

The AUSTRAC CEO must decide to register the person in accordance with the application if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:

whether registering the person would involve a significant money laundering, financing of terrorism, people smuggling or other serious crime risk; and

such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.

Note: A decision not to register the person is reviewable (see Part 17A).

Matters that may be specified in the AML/CTF Rules

Without limiting the matters that the AML/CTF Rules may specify under paragraph (2)(b), the matters may relate to the following:

offences of which the applicant for registration, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person, has been charged or convicted under the law of the Commonwealth, a State or Territory or a foreign country;

the compliance or non-compliance of the applicant, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person, with this Act or any other law;

the legal and beneficial ownership and control of the applicant, a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant, or any other person;

the kinds of designated services to be provided by the applicant or by a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant;

the consent of a person proposed to be entered on the Remittance Sector Register as a remittance affiliate of the applicant.

Notice of decision to register

The AUSTRAC CEO must, as soon as practicable after deciding to register a person, give a written notice to:

the applicant for registration; and

if the application was made by a registered remittance network provider for another person to be registered as a remittance affiliate of the registered remittance network provider—the other person.

Contents of notice of decision to register

A notice under subsection (4) in relation to a decision to register a person must specify:

whether the person is registered as:

a remittance network provider; or

an independent remittance dealer; or

a remittance affiliate of a registered remittance network provider; and

the conditions (if any) to which the registration is subject (see section 75E); and

the date on which the registration takes effect.

75D Spent convictions scheme

The AML/CTF Rules made under paragraph 75B(3)(b) or 75C(2)(b) must not affect the operation of Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).Part VIIC of the

75E Registration may be subject to conditions

The AUSTRAC CEO may, in writing, impose conditions to which the registration of a person under this Part is subject.

Note: A decision to impose a condition is reviewable (see Part 17A).

Without limiting the conditions that the AUSTRAC CEO may impose under subsection (1), the conditions may relate to the following:

the volume of funds remitted (whether by reference to a particular time, a particular amount or otherwise);

the destination (however described) of funds remitted;

requiring notification of particular changes in circumstances.

Note: Section 75M imposes a general obligation in relation to notification of changes in circumstances.

75F When registration of a person ceases

The registration of a person ceases at the earliest of the following times:

when the cancellation of the registration of the person under section 75G takes effect;

when the entry relating to the registration of the person is removed from the Remittance Sector Register under subsection 75K(2);

subject to subsection (2)—3 years after the day on which the registration took effect;

in the case of an individual—when the individual dies;

in the case of a body corporate—when the body corporate ceases to exist.

Paragraph (1)(c) is subject to the AML/CTF Rules made under section 75J (which deals with renewal of registration).

75G Cancellation of registration

The AUSTRAC CEO may cancel the registration of a person if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:

whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism, people smuggling or other serious crime risk; or

one or more breaches by the person of a condition of registration; or

such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.

Note: A decision to cancel a registration is reviewable (see Part 17A).

The AUSTRAC CEO may also cancel the registration of a person if the AUSTRAC CEO has reasonable grounds to believe that the registered person no longer carries on a business that gives rise to the requirement to be registered under this Part.

The cancellation of the registration of a person takes effect on the day specified in the notice given to the person under subsection 233C(1).

The AUSTRAC CEO may publish, in the manner specified in the AML/CTF Rules, a list of the names of persons whose registration has been cancelled and the date the cancellation takes effect.

75H Suspension of registration

The AML/CTF Rules may make provision for and in relation to the suspension of registrations by the AUSTRAC CEO under this Part.

The AML/CTF Rules may provide for matters including, but not limited to, the following:

the grounds for suspension of registration;

the effect of suspension on registration;

the period for which suspensions have effect;

the effect of suspension of a registered remittance network provider upon its registered remittance affiliates;

making entries in and removing entries from the Remittance Sector Register in relation to suspension;

notices of suspension;

review of decisions relating to suspension.

75J Renewal of registration

The AML/CTF Rules may make provision for and in relation to the renewal of registrations by the AUSTRAC CEO under this Part.

The AML/CTF Rules may provide for matters including, but not limited to, the following:

the making of applications for renewal;

the period within which applications for renewal may be made;

the criteria for determining applications for renewal;

entries in the Remittance Sector Register in relation to renewal;

the giving of notices relating to decisions on applications for renewal;

review of decisions relating to applications for renewal;

the period for which renewed registrations have effect.

In particular, the AML/CTF Rules may provide that:

if the registration of a person would otherwise cease at the end of the period of 3 years commencing on the day on which the registration took effect; and

before the end of that period, an application for renewal of the registration was made to the AUSTRAC CEO within the period, and in the manner provided for, in the AML/CTF Rules;

the registration of the person continues in effect after the end of that period in accordance with the Rules.

75K Removal of entries from the Remittance Sector Register

Removal on request

A person who is one or more of the following:

a registered remittance network provider;

a registered independent remittance dealer;

a registered remittance affiliate of a registered remittance network provider;

may request the AUSTRAC CEO, in writing, to remove the entry relating to one or more of the registrations of the person from the Remittance Sector Register.

If a person makes a request under subsection (1) in relation to one or more registrations, the AUSTRAC CEO must remove from the Remittance Sector Register the entry relating to each registration to which the request relates.

Removal on cessation of registration—remittance network providers

If a person ceases to be a registered remittance network provider, the AUSTRAC CEO must remove from the Remittance Sector Register:

the entry relating to the registered remittance network provider; and

each entry relating to a registered remittance affiliate of the registered remittance network provider.

Removal on cessation of registration—independent remittance dealers and affiliates

If a person ceases to be a registered independent remittance dealer or a registered remittance affiliate of a registered remittance network provider, the AUSTRAC CEO must remove from the Remittance Sector Register each entry relating to the independent remittance dealer or the remittance affiliate, as the case requires.

Notice of removal—remittance network providers

The AUSTRAC CEO must, as soon as reasonably practicable, notify a remittance network provider, in writing, if:

the AUSTRAC CEO removes from the Remittance Sector Register an entry relating to a remittance affiliate of the provider; and

the removal of the affiliate was not because of the removal of the provider as required by paragraph (3)(b).

Notice of removal—affiliates of remittance network providers

The AUSTRAC CEO must, as soon as reasonably practicable, notify each affiliate of a remittance network provider, in writing, if the AUSTRAC CEO removes from the Remittance Sector Register the entry relating to the provider.

75L AML/CTF Rules—general provision

If a provision of this Part provides for the AML/CTF Rules to make provision in relation to a matter relating to the registration or proposed registration of a person, the AML/CTF Rules may make different provision in relation to a matter depending on whether the registration or proposed registration of the person is as:

a remittance network provider; or

an independent remittance dealer; or

a remittance affiliate of a registered remittance network provider.

75M Registered persons to advise of material changes in circumstance etc.

A person who is registered under this Part as:

a remittance network provider; or

an independent remittance dealer; or

a remittance affiliate of a registered remittance network provider that applied for registration on its own behalf (see paragraph 75B(1)(c));

must advise the AUSTRAC CEO of the following:

any change in circumstances that could materially affect the person’s registration;

any matters specified in the AML/CTF Rules for the purposes of this paragraph.

A registered remittance affiliate of a registered remittance network provider must advise the provider of the following:

any change in circumstances that could materially affect the person’s registration;

any matters specified in the AML/CTF Rules for the purposes of this paragraph;

unless the affiliate applied for registration on its own behalf (see paragraph 75B(1)(c)).

A registered remittance network provider must advise the AUSTRAC CEO of any changes notified to it under subsection (2).

A person who is required by this section to advise the AUSTRAC CEO or a registered remittance network provider of a change in circumstances or a matter must do so in accordance with the approved form, and:

in the case of a requirement under subsection (1) or (2)—within 14 days of the change in circumstances or the matter arising (however described); and

in the case of a requirement under subsection (3)—within 7 days of the registered remittance network provider concerned receiving the advice.

Civil penalty

Subsections (1), (2) and (3) are civil penalty provisions.

75N AUSTRAC CEO may request further information

The AUSTRAC CEO may, in writing, request further information from any person for the purposes of making a decision under this Part.

The AUSTRAC CEO is not required to make a decision under this Part until any information requested under subsection (1) in relation to the decision has been provided.

If:

a person is given a request under subsection (1) in relation to information; and

the person reasonably believes that the information is privileged from being given on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information within the period specified in the request.

Subsection (3) is a civil penalty provision.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

75P Immunity from suit

An action, suit or proceeding (whether criminal or civil) does not lie against:

the Commonwealth; or

the AUSTRAC CEO; or

a member of the staff of AUSTRAC;

in relation to the publication of the Remittance Sector Register or a list of a kind mentioned in subsection 75G(3).

75Q Steps to be taken by AUSTRAC CEO before making certain reviewable decisions

Before making a reviewable decision under section 75C, 75E or 75G in relation to one or more persons, the AUSTRAC CEO must give a written notice to each of the persons containing:

the terms of the proposed decision; and

if the proposed decision is to cancel a registration—the date on which the cancellation is proposed to take effect; and

the reasons for the proposed decision; and

a statement that the person may, within 28 days of the giving of the notice, make a submission under this section in relation to the proposed decision.

Note: An example of a reviewable decision relating to 2 persons is a decision refusing to register a person as a remittance affiliate of a registered remittance network provider, if the provider applied under subsection 75B(2) for that person to be so registered.

The AUSTRAC CEO is not required to give a notice under this section if the AUSTRAC CEO is satisfied that it is inappropriate to do so because of the urgency of the circumstances.

75T Basis of registration

Registration under this Part is on the basis that:

the registration may cease as mentioned in section 75F; and

the registration may be suspended as mentioned in section 75H; and

the registration may be made subject to conditions as mentioned in section 75E; and

the registration may cease, be suspended or be made subject to conditions by or under later legislation; and

no compensation is payable if the registration ceases, is suspended or made subject to conditions as mentioned in any of the above paragraphs.

76 Simplified outline

The following is a simplified outline of this Part:

• This Part provides for a system of registration for providers of virtual asset services.

• Division 2 sets out offences and civil penalties in relation to the provision of registrable virtual asset services by persons who are not registered.

• Division 3 requires the AUSTRAC CEO to maintain the Virtual Asset Service Provider Register and sets out the process of applying for registration.

76A Unregistered persons must not provide certain virtual asset services

Registrable virtual asset services

(1) A person (the first person) must not provide a registrable virtual asset service to another person if the first person is not a registered virtual asset service provider.

Breach of conditions

A person must not breach a condition to which the registration of the person as a virtual asset service provider is subject.

Offences

A person commits an offence if:

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 2 years or 500 penalty units, or both.

Strict liability applies to paragraphs (3)(b) and (c).

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

A person commits an offence if:

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

the AUSTRAC CEO previously:

gave the person a direction under subsection 191(2) in relation to subsection (1) or (2) of this section; or

accepted an undertaking given by the person under section 197 in relation to subsection (1) or (2) of this section; and

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.

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

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

A person commits an offence if:

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

the AUSTRAC CEO previously:

gave the person a direction under subsection 191(2) in relation to subsection (1) or (2) of this section; or

accepted an undertaking given by the person under section 197 in relation to subsection (1) or (2) of this section; and

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.

Strict liability applies to paragraphs (7)(b) and (c).

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

A person commits an offence if:

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement; and

either:

the person had previously been convicted of an offence against subsection (3), (5) or (7), and that conviction has not been set aside or quashed; or

(ii) an order had previously been made against the person under Crimes Act 1914 in respect of an offence against subsection (3), (5) or (7), and that order has not been set aside.section 19B of the

Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.

Strict liability applies to paragraphs (9)(b) and (c).

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

Civil penalty

Subsections (1) and (2) are civil penalty provisions.

76B Virtual Asset Service Provider Register

The AUSTRAC CEO must maintain a register for the purposes of this Part, to be known as the Virtual Asset Service Provider Register.

The AUSTRAC CEO may maintain the Virtual Asset Service Provider Register by electronic means.

The Virtual Asset Service Provider Register is not a legislative instrument.

The AML/CTF Rules may make provision for and in relation to the following:

the correction of entries in the Virtual Asset Service Provider Register;

the publication of the Virtual Asset Service Provider Register in whole or part, or of specified information entered on the Virtual Asset Service Provider Register;

any other matter relating to the administration or operation of the Virtual Asset Service Provider Register.

76C Information to be entered on the Virtual Asset Service Provider Register

If the AUSTRAC CEO decides to register a person under subsection 76E(2), the AUSTRAC CEO must enter the following details on the Virtual Asset Service Provider Register:

the name of the person;

any conditions to which the registration of the person is subject;

the date on which the registration takes effect;

the registrable details in relation to the person.

76D Applications for registration

A person may apply in writing to the AUSTRAC CEO for registration as a virtual asset service provider.

An application under subsection (1) must:

be in the approved form; and

contain the information required by the AML/CTF Rules.

Without limiting the information that the AML/CTF Rules may require under paragraph (2)(b), the AML/CTF Rules may require information relating to the matters mentioned in paragraph 76E(2)(a) or in Rules made under paragraph 76E(2)(b) (these provisions deal with matters to which the AUSTRAC CEO must have regard in deciding whether to register a person).

Deemed refusal in certain circumstances

(4) If the AUSTRAC CEO has not made a decision on the application within the relevant period, the AUSTRAC CEO is taken to have decided not to register the person at the end of the relevant period. The relevant period is the period of 90 days beginning on the latest of the following days:

the day the application is made;

if the AUSTRAC CEO requests information under subsection 76Q(1) in relation to the application—the last day such information is provided;

if the person makes a submission under section 76S in relation to the application—the day the person makes the submission.

Note: A deemed decision not to register the person is reviewable (see Part 17A).

However, if the AUSTRAC CEO determines in writing that:

the application cannot be dealt with properly within the 90 day period, either because of its complexity or because of other special circumstances; and

that period is extended by a specified period of not more than 30 days;

the relevant period is that period as so extended. The AUSTRAC CEO must notify the applicant in writing of the determination before the end of the 90 day period.

76E Registration by AUSTRAC CEO

When section applies

This section applies if an application has been made under section 76D for registration of a person.

When AUSTRAC CEO must register a person

The AUSTRAC CEO must decide to register the person in accordance with the application if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:

whether registering the person would involve a significant money laundering, financing of terrorism or other serious crime risk; and

such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.

Note: A decision not to register the person is reviewable (see Part 17A).

Matters that may be specified in the AML/CTF Rules

Without limiting the matters that the AML/CTF Rules may specify under paragraph (2)(b), the matters may relate to the following:

offences of which the applicant for registration, or any other person, has been charged or convicted under the law of the Commonwealth, a State or Territory or a foreign country;

the compliance or non-compliance of the applicant, or any other person, with this Act or any other law;

the legal and beneficial ownership and control of the applicant, or any other person.

Notice of decision to register

The AUSTRAC CEO must, as soon as practicable after deciding to register an applicant, give a written notice to the applicant.

Contents of notice of decision to register

A notice under subsection (4) must specify:

the conditions (if any) to which the registration is subject (see section 76G); and

the date on which the registration takes effect.

76F Spent convictions scheme

The AML/CTF Rules made under paragraph 76D(2)(b) or 76E(2)(b) must not affect the operation of Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).Part VIIC of the

76G Registration may be subject to conditions

The AUSTRAC CEO may, in writing, impose conditions to which the registration of a person under this Part is subject.

Note: A decision to impose a condition is reviewable (see Part 17A).

Without limiting the conditions that the AUSTRAC CEO may impose under subsection (1), the conditions may relate to the following:

the value of virtual assets or money exchanged;

the volume of virtual assets exchanged (whether by reference to a particular period, a particular kind of virtual asset, or otherwise);

the kinds of virtual assets exchanged;

requiring notification of the exchange of particular kinds of virtual assets, changes in circumstances, or other specified events.

Note: Section 76P imposes a general obligation in relation to notification of changes in circumstances.

76H When registration of a person ceases

The registration of a person ceases at the earliest of the following times:

when the cancellation of the registration of the person under section 76J takes effect;

when the entry relating to the registration of the person is removed from the Virtual Asset Service Provider Register under subsection 76M(2);

subject to subsection (2)—3 years after the day on which the registration took effect;

in the case of an individual—when the individual dies;

in the case of a body corporate—when the body corporate ceases to exist.

Paragraph (1)(c) is subject to the AML/CTF Rules made under section 76L (which deals with renewal of registration).

76J Cancellation of registration

The AUSTRAC CEO may cancel the registration of a person if the AUSTRAC CEO is satisfied that it is appropriate to do so, having regard to:

whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism or other serious crime risk; or

one or more breaches by the person of a condition of registration; or

such other matters (if any) as are specified in the AML/CTF Rules under this paragraph.

The AUSTRAC CEO may also cancel the registration of a person if the AUSTRAC CEO has reasonable grounds to believe that the registered person no longer carries on a business that involves providing a virtual asset service.

Note: A decision to cancel a registration is reviewable (see Part 17A).

The cancellation of the registration of a person takes effect on the day specified in the notice given to the person under subsection 233C(1).

The AUSTRAC CEO may publish, in the manner specified in the AML/CTF Rules, a list of the names of persons whose registration has been cancelled and the date the cancellation takes effect.

76K Suspension of registration

The AML/CTF Rules may make provision for and in relation to the suspension of registrations by the AUSTRAC CEO under this Part.

The AML/CTF Rules may provide for matters including, but not limited to, the following:

the grounds for suspension of registration;

the effect of suspension on registration;

the period for which suspensions have effect;

making entries in and removing entries from the Virtual Asset Service Provider Register in relation to suspension;

notices of suspension;

review of decisions relating to suspension.

76L Renewal of registration

The AML/CTF Rules may make provision for and in relation to the renewal of registrations by the AUSTRAC CEO under this Part.

The AML/CTF Rules may provide for matters including, but not limited to, the following:

the making of applications for renewal;

the period within which applications for renewal may be made;

the criteria for determining applications for renewal;

entries in the Virtual Asset Service Provider Register in relation to renewal;

the giving of notices relating to decisions on applications for renewal;

review of decisions relating to applications for renewal;

the period for which renewed registrations have effect.

In particular, the AML/CTF Rules may provide that:

if the registration of a person would otherwise cease at the end of the period of 3 years commencing on the day on which the registration took effect; and

before the end of that period, an application for renewal of the registration was made to the AUSTRAC CEO within the period, and in the manner provided for, in the AML/CTF Rules;

the registration of the person continues in effect after the end of that period in accordance with the Rules.

76M Removal of entries from the Virtual Asset Service Provider Register

Removal on request

A person who is a registered virtual asset service provider may request the AUSTRAC CEO, in writing, to remove the entry relating to the registration of the person from the Virtual Asset Service Provider Register.

If a person makes a request under subsection (1), the AUSTRAC CEO must remove the entry from the Virtual Asset Service Provider Register.

Removal on cessation of registration

If the registration of a person ceases under another provision of this Part, the AUSTRAC CEO must remove the entry relating to the registration from the Virtual Asset Service Provider Register.

Notice of removal

The AUSTRAC CEO must, as soon as reasonably practicable, notify a person, in writing, if the AUSTRAC CEO has acted under subsection (3) in relation to the person (unless the person has died or, in the case of a body corporate, ceased to exist).

76N AML/CTF Rules—general provision

If a provision of this Part provides for the AML/CTF Rules to make provision in relation to a matter relating to the registration or proposed registration of a person, the AML/CTF Rules may make different provision in relation to a matter depending on different circumstances.

76P Registered persons to advise of material changes in circumstance etc.

A person who is registered under this Part must advise the AUSTRAC CEO of the following:

any change in circumstances that could materially affect the person’s registration;

any matters specified in the AML/CTF Rules for the purposes of this paragraph.

A person who is required by this section to advise the AUSTRAC CEO of a change in circumstances or a matter must do so:

in accordance with the approved form; and

within 14 days of the change in circumstances or the matter arising (however described).

Civil penalty

Subsection (1) is a civil penalty provision.

76Q AUSTRAC CEO may request further information

The AUSTRAC CEO may, in writing, request further information from any person for the purposes of making a decision under this Part.

The AUSTRAC CEO is not required to make a decision under this Part until any information requested under subsection (1) in relation to the decision has been provided.

If:

a person is given a request under subsection (1) in relation to information; and

the person reasonably believes that the information is privileged from being given on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information within the period specified in the request.

Subsection (3) is a civil penalty provision.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

76R Immunity from suit

An action, suit or proceeding (whether criminal or civil) does not lie against:

the Commonwealth; or

the AUSTRAC CEO; or

a member of the staff of AUSTRAC;

in relation to the publication of the Virtual Asset Service Provider Register or a list of a kind mentioned in subsection 76J(4).

76S Steps to be taken by AUSTRAC CEO before making certain reviewable decisions

Before making a reviewable decision under section 76E, 76G or 76J in relation to a person, the AUSTRAC CEO must give a written notice to the person containing:

the terms of the proposed decision; and

if the proposed decision is to cancel a registration—the date on which the cancellation is proposed to take effect; and

the reasons for the proposed decision; and

a statement that the person may, within 28 days of the giving of the notice, make a submission under this section in relation to the proposed decision.

The AUSTRAC CEO is not required to give a notice under this section if the AUSTRAC CEO is satisfied that it is inappropriate to do so because of the urgency of the circumstances.

76T Basis of registration

Registration under this Part is on the basis that:

the registration may cease as mentioned in section 76H; and

the registration may be suspended as mentioned in section 76K; and

the registration may be made subject to conditions as mentioned in section 76G; and

the registration may cease, be suspended or be made subject to conditions by or under later legislation; and

no compensation is payable if the registration ceases, is suspended or made subject to conditions as mentioned in any of the above paragraphs.

104 Simplified outline

The following is a simplified outline of this Part:

• The AML/CTF Rules may provide that a reporting entity must make a record of a designated service. The reporting entity must retain the record for 7 years.

• If a customer of a reporting entity gives the reporting entity a document relating to the provision of a designated service, the reporting entity must retain the document for 7 years.

• A reporting entity must retain records relating to:

customer due diligence; and

assessments it carries out of agreements or arrangements it has entered into relating to its reliance on the collection and verification of KYC information about a customer, or other procedures, carried out by another person.

• A reporting entity must retain records relating to its AML/CTF program.

105 Privacy Act not overridden by this Part

This Part does not override Privacy Act 1988.Part IIIA of the

107 Transaction records to be retained

Retention of records

If a reporting entity commences to provide, or provides, a designated service to a customer, the reporting entity must retain sufficient records to allow the reconstruction of individual transactions relating to the provision of the designated service to the customer.

A record under subsection (1) must comply with any requirements specified by the AML/CTF Rules.

Period for which records must be retained

A person who is or was a reporting entity must retain a record referred to in subsection (1) for a period of 7 years beginning on the day the record is made.

Civil penalty

Subsections (1) and (3) are civil penalty provisions.

AML/CTF Rules

The AML/CTF Rules may specify kinds of records to which this section does not apply.

108 Customer-provided transaction documents to be retained

Scope

This section applies if:

a document relating to the provision, or prospective provision, of a designated service by a reporting entity is given to the reporting entity by or on behalf of the customer concerned; and

the reporting entity commences, or has commenced, to provide the service to the customer.

The reporting entity must retain:

the document; or

a copy of the document;

for 7 years after the giving of the document.

Civil penalty

Subsection (2) is a civil penalty provision.

109 Records relating to transferred ADI accounts

Scope

This section applies if:

(a) a document is in the possession of an ADI (the transferor ADI) in fulfilment of an obligation imposed on it by section 107 or 108; and

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

a law of the Commonwealth or of a State or Territory; or

an arrangement between the transferor ADI and the transferee ADI.

Transferor ADI must give document to the transferee ADI

The transferor ADI must give the document to the transferee ADI within the 120-day period beginning 30 days before the transfer of the account.

Transferor ADI released from retention obligations

Sections 107 and 108 do not apply to the transferor ADI, in relation to the document, if the transferor ADI gave the original or a copy of the document to the transferee ADI within the 120-day period beginning 30 days before the transfer of the account.

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

Retention obligations of transferee ADI

If the transferee ADI is given the document within the 120-day period beginning 30 days before the transfer of the account, the transferee ADI must retain:

the document; or

a copy of the document;

for 7 years after the giving of the document.

Civil penalty

Subsections (2) and (4) are civil penalty provisions.

110 Retention of records relating to closed ADI accounts

Transferor ADI may give documents to transferee ADI

(1) An ADI (the transferor ADI) may give the original and copies of a document (the second document) relating to an account to another ADI (the transferee ADI) if:

(a) the transferor ADI has given another document (the first document) relating to the same account to the transferee ADI in accordance with section 109; and

the second document is in the transferor ADI’s possession in fulfilment of an obligation imposed on it by section 107 or 108; and

the second document relates to a closed account; and

the transferor ADI and the transferee ADI agree in writing that the second document should be given by the transferor ADI to the transferee ADI within the 120-day period allowed by section 109 for the giving of the first document.

Transferor ADI released from retention obligations

Sections 107 and 108 do not apply to the transferor ADI, in relation to the second document, if the transferor ADI gave the original or a copy of the second document to the transferee ADI within the 120-day period allowed by section 109 for the giving of the first document.

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

Retention obligations of transferee ADI

If the transferee ADI is given the original or a copy of the second document within the 120-day period allowed by section 109 for the giving of the first document, the transferee ADI must retain:

the second document; or

a copy of the second document;

for 7 years after the giving of the second document.

Civil penalty

Subsection (3) is a civil penalty provision.

111 Retention of records of customer due diligence

This section applies to a reporting entity if the reporting entity complies with section 28 (undertaking initial customer due diligence) or 30 (undertaking ongoing customer due diligence) in relation to a customer to whom the reporting entity provides a designated service, or proposed or proposes to provide a designated service.

The reporting entity must retain, until the end of the 7 year period that begins when the business relationship ends or the reporting entity completes the provision of the occasional transaction, records that:

are reasonably necessary to demonstrate compliance with the reporting entity’s obligations under Part 2; and

are in the English language, or in a form in which the records are readily accessible and readily convertible into writing in the English language.

Without limiting paragraph (2)(a), the records must include:

sufficient and accurate records which demonstrate the type and content of the data collected by the reporting entity in relation to the customer for the purposes of complying with section 28 or 30; and

records of any analysis, identification or assessment of ML/TF risk, or decision making, undertaken by the reporting entity in relation to the customer for the purposes of complying with section 28 or 30.

Subsection (2) is a civil penalty provision.

114 Retention of information if initial customer due diligence taken to have been carried out by a reporting entity

If:

(a) a person (the first person) carries out a procedure (the initial procedure) mentioned in paragraph 37A(1)(a) or 38(b); and

under section 37A or 38 and in connection with the initial procedure, Part 2 has effect as if a reporting entity had complied with paragraph 28(3)(c) or (d) in respect of a customer; and

the first person makes a record of the initial procedure and gives a copy of the record to the reporting entity;

the reporting entity must retain the copy until the end of the first 7-year period:

that began at a time after Part 2 had that effect; and

throughout the whole of which the reporting entity did not provide any designated services to the customer.

Civil penalty

Subsection (1) is a civil penalty provision.

114A Retention of records of assessments of agreements or arrangements covered by section 37A

If a reporting entity prepares a record under paragraph 37B(1)(c), the reporting entity must retain the record, or a copy of the record, for 7 years after the completion of the preparation of the record.

Civil penalty

Subsection (1) is a civil penalty provision.

114B Retention of records made or obtained under the repealed Financial Transaction Reports Act 1988

(1) This section applies to a reporting entity if, immediately before this section commences, the reporting entity is retaining a record or a copy of a record, for the purposes of Financial Transaction Reports Act 1988, in relation to a customer to whom the reporting entity has provided, or is providing, a designated service.Part III of the

The reporting entity must continue to retain the record, or a copy of the record, until the end of the first 7-year period throughout the whole of which the reporting entity did not provide any designated services to the customer.

Civil penalty

Subsection (2) is a civil penalty provision.

116 Retention of records relating to Part 1A

A reporting entity must keep records that:

are reasonably necessary to demonstrate compliance with the reporting entity’s obligations under Part 1A; and

are in the English language, or in a form in which the records are readily accessible and readily convertible into writing in the English language.

Subsection (1) is a civil penalty provision.

A person who is or was a reporting entity must retain the records referred to in subsection (1) throughout the period:

beginning at the time the record was made; and

ending 7 years after the record is no longer relevant to the reporting entity’s compliance with its obligations under Part 1A.

Subsection (3) is a civil penalty provision.

117 Retention of records about correspondent banking relationships

Scope

This section applies to a financial institution if the financial institution prepared a record under section 96.

Retention

The financial institution must retain the record, or a copy of the record, for 7 years after the completion of the preparation of the record.

Civil penalty

Subsection (2) is a civil penalty provision.

118 Exemptions

This Part (other than sections 109, 110, 116 and 117) does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

The AML/CTF Rules may provide that a specified provision of this Part (other than sections 109, 110, 116 and 117) does not apply to a designated service that is of a kind specified in the AML/CTF Rules.

This Part (other than sections 109, 110, 116 and 117) does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

The AML/CTF Rules may provide that a specified provision of this Part (other than sections 109, 110, 116 and 117) does not apply to a designated service that is provided in circumstances specified in the AML/CTF Rules.

This Part (other than sections 109, 110, 116 and 117) does not apply to a designated service that is provided by a reporting entity at or through a permanent establishment of the reporting entity in a foreign country.

119 This Part does not limit any other obligations

This Part does not limit any other obligation of a person to make records or retain documents.

120 Simplified outline of this Part

• Except as permitted by this Act, an AUSTRAC entrusted person must not access, make a record of, authorise access to, disclose or otherwise use AUSTRAC information.

• A reporting entity must not disclose:

that the reporting entity has given, or is required to give, a report under subsection 41(2); or

any information from which it could reasonably be inferred that the reporting entity has given, or is required to give, that report.

• Certain persons must not disclose information relating to the giving or production of certain reports, information or other documents.

• The AUSTRAC CEO may authorise officials of Commonwealth, State or Territory agencies to access AUSTRAC information for the purposes of performing the agency’s functions and duties and exercising the agency’s powers.

• In certain circumstances, AUSTRAC information may be disclosed to governments of foreign countries or to foreign agencies.

• There are restrictions on persons using or disclosing AUSTRAC information where the information was disclosed to the persons in contravention of this Part.

121 Offence—AUSTRAC entrusted persons

A person commits an offence if:

the person is, or has been, an AUSTRAC entrusted person; and

the person accesses, makes a record of, authorises access to, discloses or otherwise uses information; and

the information is AUSTRAC information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

Subsection (1) does not apply if the access, making of the record, authorisation of the access, disclosure or use:

(a) is for the purposes of this Act or the repealed Financial Transaction Reports Act 1988; or

is for the purposes of the performance of the functions of the AUSTRAC CEO; or

is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers in relation to AUSTRAC; or

is in accordance with a provision of this Part; or

(e) is for the purposes of the National Anti-Corruption Commission Act 2022.

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

Subsection (1) does not apply if the disclosure is:

to an official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the official’s functions, duties or powers in relation to the agency; or

to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister’s responsibilities.

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

Conditions

If:

a person who is an AUSTRAC entrusted person discloses AUSTRAC information to another person under this section; and

the other person is none of the following:

an AUSTRAC entrusted person;

an official of a Commonwealth, State or Territory agency;

a Minister of the Commonwealth or of a State or Territory;

the AUSTRAC CEO may, in writing and at the time of the disclosure, impose conditions to be complied with in relation to the making of a record, disclosure or use of the information by the other person.

Secondary dealings

A person commits an offence if:

the person is none of the following:

an AUSTRAC entrusted person;

an official of a Commonwealth, State or Territory agency;

a Minister of the Commonwealth or of a State or Territory; and

AUSTRAC information is disclosed to the person under subsection (2); and

the person is not subject to conditions under subsection (4) in relation to the information; and

the person discloses the information to another person.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

A person commits an offence if:

the person is none of the following:

an AUSTRAC entrusted person;

an official of a Commonwealth, State or Territory agency;

a Minister of the Commonwealth or of a State or Territory; and

AUSTRAC information is disclosed to the person under subsection (2); and

the person is subject to conditions under subsection (4) in relation to the information; and

the person makes a record of, discloses or otherwise uses the information; and

the making of the record, disclosure or use referred to in paragraph (d) breaches any of those conditions.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Subsection (5) or (6) does not apply if the disclosure of AUSTRAC information is to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official.

Note: A defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection (see subsection 13.3(3) of the Criminal Code). For IGIS officials, see section 34C of the Inspector-General of Intelligence and Security Act 1986.

Instrument not a legislative instrument

An instrument under subsection (4) is not a legislative instrument.

123 Offence of tipping off

Offence

A person commits an offence if:

the person is or has been:

a reporting entity; or

an officer, employee or agent of a reporting entity; or

a member of a reporting group; or

an officer, employee or agent of a member of a reporting group; or

required by a notice under subsection 49(1) to give information or produce documents; or

required by notice under subsection 49B(2) to give information or produce documents; and

the person discloses information to another person (other than an AUSTRAC entrusted person); and

the information is covered by subsection (2); and

the disclosure of the information would or could reasonably be expected to prejudice an investigation:

of an offence against a law of the Commonwealth or of a State or Territory; or

(ii) for the purposes of the Proceeds of Crime Act 2002 or regulations under that Act; or

(iii) for the purposes of a law of a State or Territory that corresponds to the Proceeds of Crime Act 2002 or regulations under that Act.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Information is covered by this subsection if it is any of the following:

that a reporting entity has given, or is required to give, a report under subsection 41(2);

a report given under, or prepared for the purposes of, subsection 41(2);

a copy of such a report;

(d) a document purporting to set out information (including the formation or existence of a suspicion) contained in such a report;

a person is or has been required by a notice under subsection 49(1) to give information or produce a document;

a person has given information or produced a document in response to a notice under subsection 49(1);

a person is or has been required by a notice under subsection 49B(2) to give information or produce a document;

a person has given information or produced a document in response to a notice under subsection 49B(2);

(i) information referred to in paragraph 16(5A)(a), (b) or (c) or (5AA)(a) or (b) of the Financial Transaction Reports Act 1988, as in force immediately before its repeal.

For the purposes of paragraph (1)(d), it is immaterial whether an investigation has commenced.

Exception—crime prevention

Subsection (1) does not apply to the disclosure of information covered by paragraphs (2)(a), (b), (c) or (d) by a person if:

the person is a reporting entity, or an officer, employee or agent of a reporting entity, that is:

a legal practitioner (however described); or

a partnership or company that carries on a business of using legal practitioners (however described) to supply professional legal services; or

a qualified accountant; or

a partnership or company that carries on a business of using qualified accountants to supply professional accountancy services; or

a person specified in the AML/CTF Rules; and

the information relates to the affairs of a customer of the reporting entity; and

the person makes the disclosure, in good faith, for the purposes of dissuading the customer from engaging in conduct that constitutes, or could constitute, an offence against a law of the Commonwealth or of a State or Territory.

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

Exception—information sharing to detect, deter or disrupt money laundering, the financing of terrorism, proliferation financing, or other serious crimes

Subsection (1) does not apply if:

the disclosure is made to another reporting entity; and

the disclosure is made for the purpose of detecting, deterring, or disrupting money laundering, the financing of terrorism, proliferation financing, or other serious crimes; and

the conditions prescribed by the regulations are met.

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

Courts and Tribunals

Except where it is necessary to do so for the purposes of giving effect to this Act, a person is not to be required to disclose to a court or tribunal information mentioned in subsection (2).

124 Report and information not admissible

In any court or tribunal proceedings:

none of the following is admissible in evidence:

(i) a report given under, or prepared for the purposes of, subsection 41(2) of this Act or subsection 16(1) or (1A) of the repealed Financial Transaction Reports Act 1988;

a copy of such a report;

a document purporting to set out information (including the formation or existence of a suspicion) contained in such a report;

(iv) a document given or produced under subsection 49(1), in so far as that subsection relates to a communication under Financial Transaction Reports Act 1988;section 41 of this Act or subsection 16(1) or (1A) of the repealed

(v) information given under subsection 16(4) of the repealed Financial Transaction Reports Act 1988; and

evidence is not admissible as to:

(i) whether or not a report was prepared for the purposes of subsection 41(2) of this Act or subsection 16(1) or (1A) of the repealed Financial Transaction Reports Act 1988; or

(ii) whether or not a report prepared for the purposes of subsection 41(2) of this Act or subsection 16(1) or (1A) of the repealed Financial Transaction Reports Act 1988, or a document purporting to set out information (including the formation or existence of a suspicion) contained in such a report, was given to, or received by, the AUSTRAC CEO; or

(iii) whether or not particular information (including the formation or existence of a suspicion) was contained in a report prepared for the purposes of subsection 41(2) of this Act or subsection 16(1) or (1A) of the repealed Financial Transaction Reports Act 1988; or

(iv) whether or not particular information (including the formation or existence of a suspicion) was given under subsection 49(1), in so far as that subsection relates to a communication under Financial Transaction Reports Act 1988; orsection 41 of this Act or subsection 16(1) or (1A) of the repealed

(v) whether or not a particular document was produced under subsection 49(1), in so far as that subsection relates to a communication under Financial Transaction Reports Act 1988.section 41 of this Act or subsection 16(1) or (1A) of the repealed

Subsection (1) does not apply to the following proceedings:

criminal proceedings for an offence against section 26R, 121, 123, 126, 128, 129, 136, 137, 161 or 162 of this Act;

(b) criminal proceedings for an offence against Financial Transaction Reports Act 1988;section 29 or 30 of the repealed

proceedings under section 175 of this Act.

125 Access to AUSTRAC information

The AUSTRAC CEO may, in writing, authorise specified officials of a specified Commonwealth, State or Territory agency to access specified AUSTRAC information for the purposes of performing the agency’s functions and duties and exercising the agency’s powers.

Note 1: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

However, the AUSTRAC CEO may give an authorisation under subsection (1) in relation to an agency, authority, body or organisation of a State or Territory only if its head (however described) has given a written undertaking to the AUSTRAC CEO that it and its officials will comply with the Australian Privacy Principles in respect of AUSTRAC information obtained under subsection 121(2) or (3), this section or subsection 126(2).

Inspector-General of Intelligence and Security

An IGIS official is taken, for the purposes of this Act, to hold an authorisation under this section to allow the IGIS official to have access to any AUSTRAC information.

Authorisation not a legislative instrument

An authorisation under subsection (1) is not a legislative instrument.

126 Dealings with AUSTRAC information

A person commits an offence if:

the person is, or has been, an official of a Commonwealth, State or Territory agency; and

the person has obtained AUSTRAC information under subsection 121(2) or (3), section 125 or subsection (2) of this section; and

the person makes a record of, discloses or otherwise uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exception—functions, duties or powers of officials etc.

Subsection (1) does not apply if:

both of the following apply:

the making of the record, disclosure or use is for the purposes of, or in connection with, the performance or exercise of the person’s functions, duties or powers as an official of a Commonwealth, State or Territory agency;

the disclosure is not to the government of a foreign country or to a foreign agency; or

the disclosure is to another official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the other official’s functions, duties or powers in relation to the agency; or

the disclosure is to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister’s responsibilities; or

the disclosure is in accordance with section 127.

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

Exception—court or tribunal proceedings etc.

Subject to subsection (3A), subsection (1) does not apply if the disclosure is to a person for the purposes of or in connection with:

court or tribunal proceedings; or

proposed or possible court or tribunal proceedings; or

obtaining legal advice.

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

Subsection (3) does not apply if the AUSTRAC information:

was obtained under section 41 (reports of suspicious matters); or

was obtained under section 49 (further information to be given to the AUSTRAC CEO etc.), in so far as that section relates to a communication under section 41; or

(c) was obtained under Financial Transaction Reports Act 1988 (reports of suspect transactions).section 16 of the repealed 

Secondary disclosure

A person commits an offence if:

AUSTRAC information is disclosed to the person under subsection (3); and

the person discloses the information to another person.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Subsection (4) does not apply if:

the disclosure is for the purposes of or in connection with:

the court or tribunal proceedings; or

the proposed or possible court or tribunal proceedings; or

obtaining or giving the legal advice; or

the disclosure is permitted by this Division.

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

127 Disclosure of AUSTRAC information to foreign countries or agencies

AUSTRAC CEO

The AUSTRAC CEO may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the AUSTRAC CEO is satisfied that:

where the AUSTRAC CEO considers it appropriate, the government of the foreign country, or the foreign agency, has given an undertaking for:

protecting the confidentiality of the information; and

controlling the use that will be made of the information; and

ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and

it is appropriate, in all the circumstances of the case, to do so.

Commonwealth, State or Territory agencies

A person who is:

the head (however described) of a Commonwealth, State or Territory agency prescribed by the AML/CTF Rules; or

covered by an authorisation under subsection (4);

may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the person is satisfied that:

the government of the foreign country, or the foreign agency, has given an undertaking for:

protecting the confidentiality of the information; and

controlling the use that will be made of the information; and

ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and

it is appropriate, in all the circumstances of the case, to do so.

Authorisations

For the purposes of paragraph (2)(b), the head (however described) of a Commonwealth, State or Territory agency prescribed by the AML/CTF Rules for the purposes of paragraph 127(2)(a) may, in writing, authorise an official of the Commonwealth, State or Territory agency.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

An authorisation under subsection (4) is not a legislative instrument.

128 Unauthorised accessing of AUSTRAC information

A person commits an offence if:

the person accesses information; and

the information is AUSTRAC information; and

the access is not permitted by this Part.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

129 Use or disclosure of AUSTRAC information disclosed in contravention of this Part

A person commits an offence if:

information is disclosed to the person; and

the information is AUSTRAC information; and

the disclosure to the person is in contravention of this Part; and

the person makes a record of, discloses or otherwise uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exception

Subsection (1) does not apply if the person discloses the information for the purposes of, or in connection with:

an appropriate authority investigating the disclosure mentioned in paragraph (1)(c); or

the performance or exercise of the person’s functions, duties or powers as an IGIS official.

Note: A defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection (see subsection 13.3(3) of the Criminal Code). For IGIS officials, see section 34C of the Inspector-General of Intelligence and Security Act 1986.

134 Use of AUSTRAC information in court or tribunal proceedings

Except where it is necessary to do so for the purposes of giving effect to this Act or the repealed Financial Transaction Reports Act 1988, a person is not to be required:

to produce a document containing AUSTRAC information to a court or tribunal; or

to disclose AUSTRAC information to a court or tribunal.

144 Simplified outline

The following is a simplified outline of this Part:

• An authorised officer may enter any reporting entity business premises:

with the occupier’s consent; or

under a monitoring warrant.

• An authorised officer who enters any reporting entity business premises may exercise monitoring powers.

• The AUSTRAC CEO may require a reporting entity to carry out an external audit or a money laundering and terrorism financing risk assessment.

145 Appointment of authorised officers

The AUSTRAC CEO may, in writing, appoint as an authorised officer for the purposes of this Act:

a member of the staff of AUSTRAC; or

a person whose services are made available to the AUSTRAC CEO under subsection 225(3), other than a person covered by paragraph 225(3)(g).

Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

The AUSTRAC CEO must not appoint a person to be an authorised officer unless the person satisfies the conditions (if any) specified in the regulations.

In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the AUSTRAC CEO.

146 Identity cards

The AUSTRAC CEO must issue an identity card to an authorised officer.

The identity card must

be in a form approved in writing by the AUSTRAC CEO; and

contain a recent photograph of the authorised officer.

A person commits an offence if:

the person has been issued with an identity card; and

the person ceases to be an authorised officer; and

the person does not, within 3 business days after so ceasing, return the identity card to the AUSTRAC CEO.

Penalty: 1 penalty unit.

Subsection (3) does not apply if the person has a reasonable excuse.

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

An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer under this Part.

147 Authorised officer may enter premises by consent or under a monitoring warrant

For the purposes of determining whether the provisions of this Act, the regulations or the AML/CTF Rules have been complied with, an authorised officer may:

enter any reporting entity business premises at any reasonable time of the day; and

exercise the monitoring powers set out in section 148.

An authorised officer is not authorised to enter premises under subsection (1) unless:

the occupier of the premises has consented to the entry and the officer has shown his or her identity card if required by the occupier; or

the entry is made under a monitoring warrant.

Note: Monitoring warrants are issued under section 159.

If an authorised officer is on the premises with the consent of the occupier, the authorised officer must leave the premises if the occupier asks the authorised officer to do so.

148 Monitoring powers of authorised officers

(1) For the purposes of this Act, the following are the monitoring powers that an authorised officer may exercise, in relation to premises, under section 147:

the power to search the premises for any compliance records that:

are kept at, or accessible from, the premises; and

relate to a reporting entity;

the power to search the premises for any system used by a reporting entity at the premises for keeping those records;

the power to search the premises for any reports under this Act that are retained at, or accessible from, the premises;

the power to search the premises for any system used by a reporting entity in connection with:

preparing reports under this Act; or

sending such reports to the AUSTRAC CEO; or

retaining such reports;

the power to search the premises for any other thing on the premises that may be relevant to the obligations of a reporting entity under this Act, the regulations or the AML/CTF Rules;

the power to examine any activity conducted on the premises that may relate to information provided under this Act, the regulations or the AML/CTF Rules;

the power to examine any thing on the premises that may relate to information provided under this Act, the regulations or the AML/CTF Rules;

the power to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

the power to inspect any document on the premises that may relate to information provided under this Act, the regulations or the AML/CTF Rules;

the power to take extracts from, or make copies of, any such document;

the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;

the powers set out in subsections (2), (3) and (4).

(2) For the purposes of this Act, monitoring powers include the power to secure a thing for no more than 24 hours if:

the thing is found during the exercise of monitoring powers on the premises; and

an authorised officer believes on reasonable grounds that:

(i) the thing affords evidence of the commission of an offence against this Act or the regulations, or evidence of the commission of an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the regulations; and

it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and

the circumstances are serious and urgent.

(3) For the purposes of this Act, monitoring powers include the power to operate equipment at the premises to see whether:

the equipment; or

a data storage device that:

is at the premises; and

can be used with the equipment or is associated with it;

contains information that is relevant to assessing the correctness of information provided under this Act.

(4) For the purposes of this Act, monitoring powers include the following powers in relation to information described in subsection (3) found in the exercise of the power under that subsection:

the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;

the power to operate facilities at the premises to transfer the information to a disk, tape or other storage device that:

is brought to the premises for the exercise of the power; or

is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

the power to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

149 Tampering or interfering with things secured in the exercise of monitoring powers

A person commits an offence if:

a thing has been secured by an authorised officer in the exercise of the monitoring powers set out in section 148; and

the person tampers or interferes with the thing.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Subdivision B—Powers of authorised officers to ask questions and seek production of documents

150 Authorised officer may ask questions and seek production of documents

If the authorised officer was authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:

answer any questions relating to the operation of this Act, the regulations or the AML/CTF Rules that are put by the authorised officer; and

produce any document relating to the operation of this Act, the regulations or the AML/CTF Rules that is requested by the authorised officer.

If the authorised officer was authorised to enter the premises by a monitoring warrant, the authorised officer may require any person in or on the premises to:

answer any questions relating to the operation of this Act, the regulations or the AML/CTF Rules that are put by the authorised officer; and

produce any document relating to the operation of this Act, the regulations or the AML/CTF Rules that is requested by the authorised officer.

Note: Monitoring warrants are issued under section 159.

A person commits an offence if:

the person is subject to a requirement under subsection (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Self-incrimination

A person is not excused from answering a question or producing a document under subsection (2) on the ground that the answering of the question or the production of the document might tend to incriminate the person or expose the person to a penalty.

However:

the answer given or the document produced; or

answering the question or producing the document;

is not admissible in evidence against the person:

(c) in civil proceedings other than proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or

in criminal proceedings other than:

proceedings for an offence against subsection (3); or

proceedings for an offence against section 136 or 137 that relates to this section; or

(iii) proceedings for an offence against Criminal Code that relates to this section.section 137.1 or 137.2 of the

151 Authorised officer must produce identity card on request

An authorised officer is not entitled to exercise any powers under this Part in relation to premises if:

the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

the authorised officer fails to comply with the requirement.

152 Consent

Before obtaining the consent of a person for the purposes of paragraph 147(2)(a), the authorised officer must inform the person that he or she may refuse consent.

An entry of an authorised officer because of the consent of a person is not lawful unless the person voluntarily consented to the entry.

The consent may be expressed to be limited to entry during a particular period unless the consent is withdrawn before the end of that period.

A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

If an authorised officer entered premises because of the consent of a person, the authorised officer must leave the premises if the person withdraws the consent.

153 Announcement before entry

An authorised officer executing a monitoring warrant must, before entering premises under the warrant:

announce that he or she is authorised to enter the premises; and

give any person at the premises an opportunity to allow entry to the premises.

Note: Monitoring warrants are issued under section 159.

154 Details of monitoring warrant to be given to occupier etc. before entry

If:

a monitoring warrant is being executed in relation to premises; and

either:

the occupier of the premises is present at the premises; or

the occupier of the premises is not present at the premises, but another person who apparently represents the occupier is present at the premises;

the authorised officer must make a copy of the warrant available to:

if subparagraph (b)(i) applies—the occupier of the premises; or

if subparagraph (b)(ii) applies—the person who apparently represents the occupier.

The authorised officer must identify himself or herself to that person.

The copy of the warrant mentioned in subsection (1) need not include the signature of the magistrate who issued the warrant.

Note: Monitoring warrants are issued under section 159.

155 Use of electronic equipment in exercising monitoring powers

This section applies to the following premises:

premises that an authorised officer has entered, and remains on, with the consent of the occupier;

warrant premises.

An authorised officer or a person assisting that officer may operate electronic equipment already at the premises in order to exercise monitoring powers if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.

If the authorised officer or a person assisting believes, on reasonable grounds, that:

there is on the premises material relating to information provided under this Act, the regulations or the AML/CTF Rules that may be accessible by operating electronic equipment on the premises; and

expert assistance is required to operate the equipment; and

if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard, or otherwise.

The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

The equipment may be secured:

for a period not exceeding 24 hours; or

until the equipment has been operated by the expert;

whichever first happens.

If an authorised officer or a person assisting believes, on reasonable grounds, that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of the period.

The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

156 Compensation for damage to electronic equipment

This section applies if:

as a result of electronic equipment being operated as mentioned in section 155:

damage is caused to the equipment; or

the data recorded on the equipment is damaged; or

programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

the damage or corruption occurs because:

insufficient care was exercised in selecting the person who was to operate the equipment; or

insufficient care was exercised by the person operating the equipment.

The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

In determining the amount of compensation payable under subsection (3), regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

Compensation is payable out of money appropriated by the Parliament.

157 Occupier entitled to be present during execution of monitoring warrant

If:

a monitoring warrant is being executed; and

the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the premises;

the person is entitled to observe the execution of the warrant.

The right to observe the execution of the warrant ceases if the person impedes that execution.

This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

Note: Monitoring warrants are issued under section 159.

158 Occupier to provide authorised officer with facilities and assistance

The occupier of warrant premises, or another person who apparently represents the occupier, must provide:

the authorised officer executing the monitoring warrant; and

any person assisting that officer;

with all reasonable facilities and assistance for the effective exercise of their powers.

Note: Monitoring warrants are issued under section 159.

A person commits an offence if:

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty for contravention of this subsection: 30 penalty units.

159 Monitoring warrants

An authorised officer may apply to a magistrate for a warrant under this section in relation to reporting entity business premises.

Note: A warrant under this section is called a monitoring warrant.

The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised officers should have access to the premises for the purposes of determining whether the provisions of this Act, the regulations or the AML/CTF Rules have been, or are being, complied with. This subsection has effect subject to subsection (3).

The magistrate must not issue the warrant unless the authorised officer or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

The warrant must:

contain a description of the premises to which the warrant relates; and

authorise one or more authorised officers (whether or not named in the warrant), and any person or persons assisting the authorised officer or authorised officers:

to enter the premises; and

to exercise the powers set out in section 148 in relation to the premises; and

state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

state the purpose for which the warrant is issued.

160 Magistrates—personal capacity

Functions conferred personally

The functions conferred on a magistrate by section 159 are conferred on the magistrate:

in a personal capacity; and

not as a court or a member of a court.

Functions need not be accepted

The magistrate need not accept the functions conferred.

Protection and immunity

A magistrate performing a function conferred by section 159 has the same protection and immunity as if he or she were performing the function:

as the court of which the magistrate is a member; or

as a member of the court of which the magistrate is a member.

161 External audits—risk management etc.

This section applies if the AUSTRAC CEO has reasonable grounds to suspect that a reporting entity has not taken, or is not taking, appropriate action to identify, assess, manage or mitigate the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services at or through a permanent establishment of the reporting entity in Australia.

Requirement

The AUSTRAC CEO may, by written notice given to the reporting entity, require the reporting entity to:

appoint an external auditor; and

arrange for the external auditor to carry out an external audit of the reporting entity’s capacity and endeavours to identify, assess, manage or mitigate the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services at or through a permanent establishment of the reporting entity in Australia; and

(c) arrange for the external auditor to give the reporting entity a written report (the audit report) setting out the results of the audit; and

give the AUSTRAC CEO a copy of the audit report within:

the period specified in the notice; or

if the AUSTRAC CEO allows a longer period—that longer period.

Note: The AUSTRAC CEO’s decisions under this subsection are reviewable (see Part 17A).

The notice must specify:

the matters to be covered by the audit; and

the form of the audit report and the kinds of details it is to contain.

The matters that may be specified under paragraph (3)(a) may include either or both of the following:

an assessment of the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services at or through a permanent establishment of the reporting entity in Australia;

an assessment of what the reporting entity will need to do, or continue to do, to appropriately identify, assess, manage or mitigate the risks of money laundering, financing of terrorism and proliferation financing that the reporting entity may reasonably face in providing its designated services at or through a permanent establishment of the reporting entity in Australia.

Subsection (4) does not limit paragraph (3)(a).

Eligibility for appointment as an external auditor

An individual is not eligible to be appointed an external auditor by a reporting entity if:

the individual is an officer, employee or agent of the reporting entity; or

both:

the reporting entity is a member of a reporting group; and

the individual is an officer, employee or agent of another member of the reporting group.

Offence

A person commits an offence if:

the person is subject to a requirement under subsection (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty

A reporting entity must comply with a requirement under subsection (2).

Subsection (8) is a civil penalty provision.

162 External audits—compliance

This section applies if the AUSTRAC CEO has reasonable grounds to suspect that a reporting entity has contravened, is contravening, or is proposing to contravene, this Act, the regulations or the AML/CTF Rules.

The AUSTRAC CEO may, by written notice given to the reporting entity, require the reporting entity to:

appoint an external auditor; and

arrange for the external auditor to carry out an external audit of whichever of the following is specified in the notice:

the reporting entity’s compliance with this Act, the regulations and the AML/CTF Rules;

one or more specified aspects of the reporting entity’s compliance with this Act, the regulations and the AML/CTF Rules; and

(c) arrange for the external auditor to give the reporting entity a written report (the audit report) setting out the results of the audit; and

give the AUSTRAC CEO a copy of the audit report within:

the period specified in the notice; or

if the AUSTRAC CEO allows a longer period—that longer period.

The notice must specify:

the matters to be covered by the audit; and

the form of the audit report and the kinds of details it is to contain.

The matters that may be specified under paragraph (3)(a) may include either or both of the following:

an assessment of the reporting entity’s existing capacity to comply with this Act, the regulations and the AML/CTF Rules;

an assessment of what the reporting entity will need to do, or continue to do, to comply with this Act, the regulations and the AML/CTF Rules.

Subsection (4) does not limit paragraph (3)(a).

Eligibility for appointment as an external auditor

An individual is not eligible to be appointed an external auditor by a reporting entity if:

the individual is an officer, employee or agent of the reporting entity; or

both:

the reporting entity is a member of a reporting group; and

the individual is an officer, employee or agent of another member of the reporting group.

Offence

A person commits an offence if:

the person is subject to a requirement under subsection (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Civil penalty

A reporting entity must comply with a requirement under subsection (2).

Subsection (8) is a civil penalty provision.

163 External auditor may have regard to the results of previous audit

In carrying out an external audit in accordance with a notice under section 161 or 162, an external auditor may, if:

an external audit was completed under that section within the last preceding 2 years; and

the external auditor is satisfied that the previous audit is still relevant;

have regard to the results of the previous audit.

164 External auditors

The AUSTRAC CEO may, by writing, authorise a specified individual to be an external auditor for the purposes of this Act.

Note 1: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

An authorisation under subsection (1) is not a legislative instrument.

166 Simplified outline

An authorised officer may obtain information or documents.

If the AUSTRAC CEO believes on reasonable grounds that a person has information or a document that is relevant to compliance with this Act, the regulations or the AML/CTF Rules, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules, the AUSTRAC CEO may require the person:

to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents; or

to appear before an examiner for examination under this Division on oath or affirmation and to answer questions, and to produce any such documents.

The examiner may, and must if the examinee so requests, cause a record to be made of statements made at an examination under this Division.

A statement made by a person at an examination under this Division of the person is admissible in evidence against the person in certain proceedings except in certain circumstances.

167 Authorised officer may obtain information and documents

This section applies to a person if an authorised officer reasonably believes that the person has knowledge of information, or possession or control of a document, that is relevant to the compliance with or enforcement of:

an offence provision of this Act or the regulations; or

a civil penalty provision of this Act or the regulations; or

(c) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Requirement

The authorised officer may, by written notice given to the person, require the person:

to give to the authorised officer, within the period and in the manner specified in the notice, any such information; or

to produce to the authorised officer, within the period and in the manner specified in the notice, any such documents; or

to make copies of any such documents and to produce to the authorised officer, within the period and in the manner specified in the notice, those copies.

Offence

A person commits an offence if:

the person has been given a notice under subsection (2); and

the person omits to do an act; and

the omission contravenes a requirement in the notice.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Compliance

A person must comply with a notice given under subsection (2).

Subsection (3A) is a civil penalty provision.

Notice to set out the effect of offence provisions etc.

A notice under subsection (2) must set out the effect of the following provisions:

subsection (3);

subsection (5);

subsection (6);

section 136;

section 137.

Note 1: Section 136 is about giving false or misleading information.

Note 2: Section 137 is about producing false or misleading documents.

Legal professional privilege

If:

a person is given a notice under subsection (2) in relation to information, a document or a copy of a document; and

the person reasonably believes that the information, document or copy is privileged from being given or produced on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information, document or copy within the period specified in the notice.

Subsection (5) is a civil penalty provision.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

168 Copying documents—reasonable compensation

A person is entitled to be paid reasonable compensation for complying with a requirement covered by paragraph 167(2)(c).

169 Self-incrimination

A person is not excused from giving information or producing a document under section 167 on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.

However:

the information given or the document produced; or

giving the information or producing the document;

is not admissible in evidence against the person:

in civil proceedings other than:

proceedings under this Act; or

(ii) proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or

in criminal proceedings other than:

proceedings for an offence against this Act; or

(ii) proceedings for an offence against the Criminal Code that relates to this Act; or

(iii) proceedings for an offence against a provision covered by the definition of money laundering in section 5; or

(iv) proceedings for an offence against a provision covered by the definition of financing of terrorism in section 5; or

(v) proceedings for an offence against a provision covered by the definition of proliferation financing in section 5.

170 Copies of documents

An authorised officer may inspect a document produced under this Part and may make and retain copies of, or take and retain extracts from, such a document.

171 Authorised officer may retain documents

An authorised officer may take possession of a document produced under this Part, and retain it for as long as is reasonably necessary.

The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the authorised officer to be a true copy.

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Until a certified copy is supplied, the authorised officer must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, the document.

172 Division 400 and Chapter 5 of the Criminal Code

If a person, or an officer, employee or agent of a person, provides information under a notice under subsection 167(2), the person, officer, employee or agent is taken, for the purposes of Criminal Code, not to have been in possession of that information at any time.Division 400 and Chapter 5 of the

172A Power of AUSTRAC CEO to obtain information and documents

This section applies if the AUSTRAC CEO believes on reasonable grounds that a person has information or a document that is relevant to:

compliance with this Act, the regulations or the AML/CTF Rules; or

(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.

The AUSTRAC CEO may, by written notice given to the person, require the person:

to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents; or

to appear before an examiner at the time and place specified in the notice:

for examination under this Division, on oath or affirmation and to answer questions; and

to produce any such documents.

The notice must:

if paragraph (2)(b) applies—state the general nature of the matter to which the questions will relate; and

in any case set out the effect of subsections (4) and 172F(1).

A person commits an offence if the person intentionally or recklessly fails to comply with a notice under subsection (2).

Penalty: Imprisonment for 2 years or 100 penalty units, or both.

172B Proceedings at examination

Sections 172C to 172H apply if, in accordance with a notice given under examinee) appears before another person (in this Division called the examiner) for examination.section 172A, a person (in this Division called the

172C Requirements made of persons appearing for examination

If a person appears for examination in accordance with a notice given under subsection 172A(2), the examiner may examine the person on oath or affirmation and may, for that purpose:

require the person to either take an oath or make an affirmation; and

administer an oath or affirmation to the person.

The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.

A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (1).

Penalty: 3 months imprisonment.

The examiner may require the person to answer a question that is put to the person at the examination and is relevant to:

compliance with this Act, the regulations or the AML/CTF Rules; or

(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.

A person commits an offence if the person intentionally or recklessly refuses or fails to comply with a requirement made under subsection (4).

Penalty: Imprisonment for 2 years.

172D Examination to take place in private

An examination under this Division must take place in private and the examiner may give directions about who may be present during it, or during a part of it.

A person commits an offence of strict liability if:

the person is present at the examination; and

the person is not:

the examiner or examinee; or

a member of the staff of AUSTRAC approved by the examiner; or

entitled to be present by virtue of a direction under subsection (1) or subsection 172F(1).

Penalty: 30 penalty units.

172E Procedures for holding an examination

The examiner may decide to hold an examination under this Division:

at one or more physical venues; or

at one or more physical venues and using virtual examination technology that allows a person to appear at all or part of the examination without being physically present at the examination; or

using virtual examination technology only.

Subsection (3) applies if the examination is held:

at one or more physical venues and using virtual examination technology; or

using virtual examination technology only.

The examiner must ensure that the use of the virtual examination technology is reasonable.

If the examination is held:

at more than one physical venue; or

at one or more physical venues and using virtual examination technology; or

using virtual examination technology only;

the examiner may appoint a single place and time at which the examination is taken to have been held.

This section applies to part of an examination in the same way that it applies to all of an examination.

In this section:

virtual examination technology means any technology that allows a person to appear at all or part of an examination under this Division without being physically present at the examination.

172F Examinee’s lawyer may attend

The examinee’s lawyer may be present at the examination and may, at such times during the examination as the examiner determines:

address the examiner; and

examine the examinee;

about matters about which the examiner has examined the examinee.

If, in the examiner’s opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the examiner may require the person to stop addressing the examiner, or examining the examinee, as the case requires.

A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (2).

Penalty: 20 penalty units.

172G Record of examination

The examiner may, and must if the examinee so requests, cause a record to be made of statements made at an examination under this Division.

If a record made under subsection (1) is in writing or is reduced to writing:

the examiner may require the examinee to read it, or to have it read to the examinee, and may require the examinee to sign it; and

the examiner must, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the examiner imposes.

A person commits an offence of strict liability if the person fails to comply with a requirement made under paragraph (2)(a).

Penalty: 3 months imprisonment.

172H Giving to other persons copies of written record of examination

The AUSTRAC CEO may give a copy of the whole or a part of a written record of an examination made under subsection 172G(1) to a person’s lawyer if the lawyer satisfies the AUSTRAC CEO that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.

A person commits an offence of strict liability if:

the AUSTRAC CEO gives a copy of the whole or a part of a written record of an examination to a person under subsection (1); and

the person, or any other person who has possession, custody or control of the copy or a copy of it:

uses the copy or a copy of it; or

publishes, or communicates to another person, the copy, a copy of it, or any part of the copy’s contents;

except in connection with preparing, beginning or carrying on, or in the course of, a proceeding.

Penalty: 30 penalty units.

The AUSTRAC CEO may, subject to such conditions (if any) as it imposes, give to a person a copy of the whole or a part of a written record of the examination made under subsection 172G(1).

172J Copies of record of examination given subject to conditions

A person (the first person) commits an offence of strict liability if:

a copy of the whole or a part of a record is given to a person under subsection 172G(2) or 172H(3) subject to conditions; and

the first person:

is the person referred to in paragraph (a); or

has possession, custody or control of the copy or a copy of it; and

the first person engages in conduct; and

the first person’s conduct breaches the condition.

Penalty: 30 penalty units.

172K Self-incrimination

For the purposes of this Division, it is not a reasonable excuse for an individual to refuse or fail:

to answer a question; or

to produce a document; or

to sign a record;

in accordance with a requirement made of the individual under this Division, on the ground that answering the question, producing the document or signing the record might tend to incriminate the individual or expose the individual to a penalty.

Subsection (3) applies if:

before making an oral statement in answer to a question, or signing a record, in accordance with a requirement made under this Division, the individual claims that the statement or the signing of the record (as the case may be) might tend to incriminate the individual or make the individual liable to a penalty; and

the statement or the signing of the record (as the case may be) might, in fact, tend to incriminate the individual or make the individual so liable.

The statement or the fact that the individual has signed the record (as the case may be) is not admissible in evidence against the individual in:

civil or criminal proceedings; or

a proceeding for the imposition of a penalty;

other than a proceeding in respect of:

in the case of the making of a statement—the falsity of the statement; or

in the case of the signing of a record—the falsity of any statement contained in the record.

Note: The law relating to legal professional privilege is not affected by this Act (see section 242).

Subdivision B—Evidentiary use of certain material

172L Statements made at an examination—proceedings against examinee

A statement that a person makes at an examination under this Division of the person is admissible in evidence against the person in a proceeding referred to in subsection (2) unless:

because of subsection 172K(3), the statement is not admissible in evidence against the person in the proceeding; or

the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or

the statement is qualified or explained by another statement made at the examination, evidence of the other statement is not tendered in the proceeding, and the person objects to the admission of evidence of the first-mentioned statement; or

the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.

Note: The law relating to legal professional privilege is not affected by this Act (see section 242).

For the purposes of subsection (1), the proceedings are:

a proceeding in a court; or

a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.

If a written record of an examination of a person is signed by the person under subsection 172G(2) or authenticated in any other manner specified in the AML/CTF Rules, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Division limits or affects the admissibility in the proceeding of other evidence of statements made at the examination.

172M Statements made at an examination—other proceedings

(1) If direct evidence by a person (the absent witness) of a matter would be admissible in a proceeding referred to in subsection (2), a statement that the absent witness made at an examination under this Division of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter:

if it appears to the court or tribunal that:

the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure the witness’ attendance; or

all reasonable steps have been taken to find the absent witness but the witness cannot be found; or

if it does not so appear to the court or tribunal—unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

For the purposes of subsection (1), the proceedings are:

a proceeding in a court; or

a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

172N Weight of evidence admitted under section 172M

This section applies if evidence of a statement made by a person at an examination under this Division of the person is admitted under section 172M in a proceeding.

In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:

how long after the matters to which it related the statement was made; and

any reason the person may have had for concealing or misrepresenting a material matter; and

any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

If the person is not called as a witness in the proceeding:

evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting the person’s credibility is so admissible; and

evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.

However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

172P Objection to admission of statements made at examination

(1) A party (the adducing party) to a proceeding referred to in subsection (2) may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:

will apply to have admitted in evidence in the proceeding specified statements made at an examination under this Division; and

for that purpose, will apply to have evidence of those statements admitted in the proceeding.

For the purposes of subsection (1), the proceedings are:

a proceeding in a court; or

a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.

Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:

stating that the other party objects to specified statements being admitted in evidence in the proceeding; and

specifies, in relation to each of those statements, the grounds of objection.

The period prescribed by subsection (4) may be extended by the court or tribunal or by agreement between the parties concerned.

On receiving a notice given under subsection (4), the adducing party must give to the court or tribunal or other body referred to in paragraph (2)(b) (as the case requires) a copy of:

the notice under subsection (1) and any writing that subsection (3) required to accompany that notice; and

the notice under subsection (4).

If subsection (6) is complied with, the court or tribunal or other body may either:

determine the objections as a preliminary point before the hearing of the proceeding begins; or

defer determination of the objections until the hearing.

If a notice has been given in accordance with subsections (1) and (3), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:

the other party has, in accordance with subsection (4), objected to the statement being so admitted; or

the court or tribunal or other body gives the other party leave to object to the statement being so admitted.

172Q Material otherwise admissible

Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.

Subdivision C—Miscellaneous

172R Application of Crimes Act and Evidence Act

(1) For the purposes of Crimes Act 1914, an examination under this Division is a judicial proceeding.Part III of the

(2) Evidence Act 1995 apply to an examination under this Division in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the

173 Simplified outline

The following is a simplified outline of this Part:

• Pecuniary penalties are payable for contraventions of civil penalty provisions.

• Authorised officers, customs officers and police officers may issue infringement notices for unreported cross-border movements of monetary instruments.

• The AUSTRAC CEO is to monitor compliance by reporting entities with their obligations under this Act, the regulations and the AML/CTF Rules.

• The AUSTRAC CEO may give a remedial direction to a reporting entity that has contravened a civil penalty provision.

• The Federal Court may grant injunctions in relation to contraventions of civil penalty provisions.

• The AUSTRAC CEO may accept enforceable undertakings.

• Customs officers and police officers may exercise powers of questioning, search and arrest in connection with a cross-border movement of monetary instruments.

174 Ancillary contravention of civil penalty provision

A person must not:

attempt to contravene a civil penalty provision (other than this subsection); or

aid, abet, counsel or procure a contravention of a civil penalty provision (other than this subsection); or

induce, whether by threats or promises or otherwise, a contravention of a civil penalty provision (other than this subsection); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or

conspire with others to effect a contravention of a civil penalty provision (other than this subsection).

Civil penalty

Subsection (1) is a civil penalty provision.

175 Civil penalty orders

If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty.

(2) An order under subsection (1) is to be known as a civil penalty order.

Determining amount of pecuniary penalty

In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including:

the nature and extent of the contravention; and

the nature and extent of any loss or damage suffered as a result of the contravention; and

the circumstances in which the contravention took place; and

whether the person has previously been found by the Federal Court in proceedings under this Act to have engaged in any similar conduct; and

if the Federal Court considers that it is appropriate to do so—whether the person has previously been found by a court in proceedings under a law of a State or Territory to have engaged in any similar conduct; and

if the Federal Court considers that it is appropriate to do so—whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct; and

(g) if the Federal Court considers that it is appropriate to do so—whether the person has previously been found by a court in proceedings under the repealed Financial Transaction Reports Act 1988 to have engaged in any similar conduct.

Maximum pecuniary penalty

The pecuniary penalty payable by a body corporate must not exceed 100,000 penalty units.

The pecuniary penalty payable by a person other than a body corporate must not exceed 20,000 penalty units.

Conduct contravening more than one civil penalty provision

If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this section against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

Civil enforcement of penalty

The pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

176 Who may apply for a civil penalty order

Only the AUSTRAC CEO may apply for a civil penalty order.

(2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.

177 2 or more proceedings may be heard together

The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

178 Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 6 years after the contravention.

179 Civil evidence and procedure rules for civil penalty orders

The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

180 Civil proceedings after criminal proceedings

The Federal Court must not make a civil penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

181 Criminal proceedings during civil proceedings

Proceedings for a civil penalty order against a person are stayed if:

criminal proceedings are started or have already been started against the person for an offence; and

the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

182 Criminal proceedings after civil proceedings

Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.

183 Evidence given in proceedings for penalty not admissible in criminal proceedings

Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

184 When an infringement notice can be given

If an authorised officer, a customs officer or a police officer has reasonable grounds to believe that a person has contravened an infringement notice provision, the officer may give the person an infringement notice relating to the contravention.

(1A) An infringement notice provision means any of the following provisions:

a designated infringement notice provision (see subsection (4));

subsection 51B(1) (which deals with the requirement for reporting entities to enrol on the Reporting Entities Roll);

subsection 51F(1) (which deals with reporting entities notifying changes of their enrolment details);

subsection 53(2) (which deals with reports about movements of monetary instruments);

subsections 74(1), (1A), (1B) and (1C) (which deal with providing certain remittance services if unregistered or in breach of a condition of registration);

subsection 75M(1) (which deals with notifying the AUSTRAC CEO of certain matters);

subsections 76A(1) and (2) (which deal with providing certain virtual asset services without being registered);

subsection 76P(1) (which deals with notifying the AUSTRAC CEO of certain matters).

Despite subsection (1), an infringement notice relating to the alleged contravention of a designated infringement notice provision may only be given to a person by an authorised officer.

An authorised officer must not issue an infringement notice relating to a contravention of subsection 32(1), 41(2), 43(2), 46(2) or (5), 46A(2) or 49(2) unless the authorised officer considers that issuing such a notice is appropriate in the particular case after taking into account:

the nature and extent of the contravention; and

the seriousness of the contravention; and

the circumstances in which the contravention took place; and

any other matter the authorised officer considers to be relevant.

The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

If a customs officer or a police officer issues an infringement notice, the officer must, within 5 business days after the day of issue of the infringement notice, forward a copy of the infringement notice to the AUSTRAC CEO.

In this Act:

designated infringement notice provision means any of the following provisions:

subsection 26K(1) or (2) (which deal with reporting entities’ obligation to designate an AML/CTF compliance officer);

subsection 26M(1) (which deals with notifications about AML/CTF compliance officers);

subsection 26N(2) (which deals with AML/CTF program documentation);

subsection 26P(3) (which deals with AML/CTF program approvals);

subsection 26Q(2) (which deals with requests for AML/CTF program documentation);

subsection 26Q(2A) (which deals with providing an LPP form in relation to certain further information requested);

subsection 41(2) (which deals with reporting certain suspicious matters);

subsection 43(2) (which deals with reporting a threshold transaction);

subsection 46(2) or (5) (which deals with reporting about international value transfer services);

subsection 46A(2) (which deals with reporting about transfers of value involving unverified self-hosted virtual asset wallets);

subsection 47(2) (which deals with reporting on compliance with the Act and other instruments);

subsection 49(2) (which deals with providing further information on request);

subsection 49(4) (which deals with providing an LPP form in relation to information or documents requested);

subsection 49B(6) (which deals with complying with a notice requiring certain information or documents);

subsection 49B(6A) (which deals with providing an LPP form in relation to information or documents requested);

subsection 50(4) (which deals with providing certain reports about a card issuer’s response, or lack of response to the AUSTRAC CEO);

subsection 50(5) (which deals with providing certain reports about a card issuer’s response, or lack of response to the Commissioner of Taxation);

subsections 64(2), (3) and (5) (which deal with obligations of ordering institutions relating to transfers of value);

subsections 66(4) and (5) (which deal with obligations of intermediary institutions relating to transfers of value);

subsections 66A(4) and (7) (which deal with obligations of ordering and beneficiary institutions relating to virtual asset transfers);

subsection 75N(3) (which deals with providing an LPP form in relation to certain further information requested);

subsection 76Q(3) (which deals with providing an LPP form in relation to certain further information requested);

subsection 111(2) (which deals with retaining records relating to customer due diligence);

(fl) subsection 114B(2) (which deals with retaining certain records made or obtained under the repealed Financial Transaction Reports Act 1988);

subsection 116(1) or (3) (which deal with retaining records relating to AML/CTF programs);

subsection 167(3A) (which deals with complying with a notice requiring certain information or documents);

subsection 167(5) (which deals with providing an LPP form in relation to certain information or documents to be provided to an authorised officer);

subsection 202(5) (which deals with reporting entities providing an LPP form in relation to certain information or documents requested by notice).

185 Matters to be included in an infringement notice

An infringement notice must:

set out the name of the person to whom the notice is given; and

set out the name of the person who gave the notice; and

set out brief details relating to the alleged contravention of the infringement notice provision, including the date of the alleged contravention; and

contain a statement to the effect that neither criminal nor civil penalty proceedings will be brought in relation to the matter if the penalty specified in the notice is paid to the AUSTRAC CEO, on behalf of the Commonwealth, within:

28 days after the notice is given; or

if the AUSTRAC CEO allows a longer period—that longer period; and

give an explanation of how payment of the penalty is to be made; and

set out such other matters (if any) as are specified in the regulations.

Note: See sections 186A and 186B for the penalty to be specified in the infringement notice.

An infringement notice may specify more than one alleged contravention of one or more infringement notice provisions. If it does so, the infringement notice must set out the details referred to in paragraph (1)(c) in relation to each alleged contravention.

186A Amount of penalty—breaches of certain provisions of Part 3A, 4, 6 or 6A

Infringement notice—bodies corporate

The penalty to be specified in an infringement notice for an alleged contravention of subsection 51B(1), 51F(1), 53(2), 74(1), (1A), (1B) or (1C), 75M(1), 76A(1) or (2) or 76P(1) by a body corporate must be a pecuniary penalty equal to:

if the alleged contravention is of a kind specified in the AML/CTF Rules under subsection (3)—the number of penalty units specified in the AML/CTF Rules in relation to that kind of contravention; or

otherwise—60 penalty units.

Infringement notice—persons other than bodies corporate

The penalty to be specified in an infringement notice for an alleged contravention of subsection 51B(1), 51F(1), 53(2), 74(1), (1A), (1B) or (1C), 75M(1), 76A(1) or (2) or 76P(1) by a person other than a body corporate must be a pecuniary penalty equal to:

if the alleged contravention is of a kind specified in the AML/CTF Rules under subsection (3)—the number of penalty units specified in the AML/CTF Rules in relation to that kind of contravention; or

otherwise—12 penalty units.

AML/CTF Rules may specify penalty units

For the purposes of paragraphs (1)(a) and (2)(a), the AML/CTF Rules may:

specify one or more kinds of alleged contraventions; and

for each kind of contravention—specify a particular number of penalty units that applies.

Without limiting the kinds of contraventions that may be specified in the AML/CTF Rules made under paragraph (3)(a), the contraventions may be described by reference to the following:

whether an alleged contravention is one of a number of alleged contraventions of a provision covered by subsection (1) or (2) that is specified in a particular infringement notice;

whether a person alleged to have contravened one or more provisions covered by subsection (1) or (2) has previously been given an infringement notice in relation to an alleged contravention of one or more of those provisions.

The number of penalty units specified in AML/CTF Rules made under paragraph (3)(b) in relation to a particular kind of contravention must not exceed:

in the case of an alleged contravention by a body corporate—120 penalty units; or

in the case of an alleged contravention by a person other than a body corporate—24 penalty units.

186B Amount of penalty—breaches of designated infringement notice provisions

The penalty to be specified in an infringement notice for an alleged contravention of a designated infringement notice provision by a body corporate must be a pecuniary penalty equal to 60 penalty units.

The penalty to be specified in an infringement notice for an alleged contravention of a designated infringement notice provision by a person other than a body corporate must be a pecuniary penalty equal to 12 penalty units.

187 Withdrawal of an infringement notice

This section applies if an infringement notice is given to a person.

(2) An authorised officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.

To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

If:

the penalty specified in the infringement notice is paid; and

the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

188 What happens if the penalty is paid

This section applies if:

an infringement notice relating to an alleged contravention of an infringement notice provision is given to a person; and

the penalty is paid in accordance with the infringement notice; and

the infringement notice is not withdrawn.

Any liability of the person for the alleged contravention is discharged.

Criminal proceedings, or section 175 proceedings, may not be brought against the person for the alleged contravention.

189 Effect of this Division on criminal and civil proceedings

This Division does not:

require an infringement notice to be given in relation to an alleged contravention of an infringement notice provision; or

affect the liability of a person to have:

criminal proceedings brought against the person for an alleged contravention of subsection 53(1), 74(2), (4), (6) or (8) or 76A(3), (5), (7) or (9); or

section 175 proceedings brought against the person for an alleged contravention of an infringement notice provision;

if:

the person does not comply with an infringement notice relating to the contravention; or

an infringement notice relating to the contravention is not given to the person; or

an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

limit a court’s discretion to determine the amount of a penalty to be imposed on a person who:

is found in criminal proceedings to have contravened subsection 53(1), 74(2), (4), (6) or (8) or 76A(3), (5), (7) or (9); or

is found in section 175 proceedings to have contravened an infringement notice provision.

190 Monitoring of compliance

The AUSTRAC CEO is to monitor, and report to the Minister on, compliance by reporting entities with their obligations under this Act, the regulations and the AML/CTF Rules.

If:

the AUSTRAC CEO has reasonable grounds to believe that a reporting entity has breached any of its obligations under this Act, the regulations or the AML/CTF Rules; and

the AUSTRAC CEO is satisfied that the breach is relevant to the performance of the functions, or the exercise of the powers, of an Australian government body; and

the AUSTRAC CEO has given the Minister a report about the breach;

the AUSTRAC CEO may give the body a copy of that report.

Subsection (1) does not require the AUSTRAC CEO to monitor, and report individually upon, each reporting entity that is registered under Part 6 of this Act, but the AUSTRAC CEO must monitor and report generally upon those reporting entities.

An action, suit or proceeding (whether criminal or civil) does not lie against:

the Commonwealth; or

the AUSTRAC CEO; or

a member of the staff of AUSTRAC;

in relation to any action taken under this section by way of:

the giving of a report; or

the giving of a copy of a report.

Subsection (2) does not limit section 125.

191 Remedial directions

This section applies if the AUSTRAC CEO is satisfied that a reporting entity has contravened, or is contravening, a civil penalty provision (other than subsection (4)).

The AUSTRAC CEO may give the reporting entity a written direction requiring the reporting entity to do one or both of the following:

to take specified action directed towards ensuring that the reporting entity does not contravene the civil penalty provision, or is unlikely to contravene the civil penalty provision, in the future;

in the case of a contravention of subsection 43(2), 46(2) or (5), 46A(2) or 47(2)—to take specified action to remedy the contravention by giving the relevant report to the AUSTRAC CEO within a period specified in the direction.

The following are examples of the kinds of direction that may be given to a reporting entity under paragraph (2)(a):

a direction that the reporting entity implement effective administrative systems for monitoring compliance with a civil penalty provision;

a direction that the reporting entity implement a system designed to give the reporting entity’s officers, employees and agents a reasonable knowledge and understanding of the requirements of a civil penalty provision, in so far as those requirements affect the officers, employees or agents concerned.

The AUSTRAC CEO:

must not act under paragraph (2)(b) if it appears to the AUSTRAC CEO that the contravention occurred more than 24 months before the day on which a direction would be issued; and

must not act under paragraph (2)(b) unless the AUSTRAC CEO has:

assessed the risks that have arisen in view of the contravention; and

determined that giving a direction under that paragraph is an appropriate and proportionate response in the circumstances.

A reporting entity must not contravene a direction under subsection (2).

Civil penalty

Subsection (4) is a civil penalty provision.

Remedial direction is not a legislative instrument

A direction under subsection (2) is not a legislative instrument.

192 Injunctions

Restraining injunctions

If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of a civil penalty provision, the Federal Court may, on the application of the AUSTRAC CEO, grant an injunction:

restraining the person from engaging in the conduct; and

if, in the Court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

If:

a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

the refusal or failure was, is or would be a contravention of a civil penalty provision;

the Federal Court may, on the application of the AUSTRAC CEO, grant an injunction requiring the person to do that act or thing.

193 Interim injunctions

Grant of interim injunction

If an application is made to the Federal Court for an injunction under section 192, the Court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind mentioned in that section.

No undertakings as to damages

The Federal Court is not to require an applicant for an injunction under section 192, as a condition of granting an interim injunction, to give any undertakings as to damages.

194 Discharge etc. of injunctions

The Federal Court may discharge or vary an injunction granted under this Division.

195 Certain limits on granting injunctions not to apply

Restraining injunctions

The power of the Federal Court under this Division to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:

if the Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

if it appears to the Court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

196 Other powers of the Federal Court unaffected

The powers conferred on the Federal Court under this Division are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise.

197 Acceptance of undertakings

The AUSTRAC CEO may accept any of the following undertakings:

a written undertaking given by a person that the person will, in order to comply with this Act, the regulations or the AML/CTF Rules, take specified action;

a written undertaking given by a person that the person will, in order to comply with this Act, the regulations or the AML/CTF Rules, refrain from taking specified action;

a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene this Act, the regulations or the AML/CTF Rules, or is unlikely to contravene this Act, the regulations or the AML/CTF Rules, in the future.

The undertaking must be expressed to be an undertaking under this section.

The person may withdraw or vary the undertaking at any time, but only with the consent of the AUSTRAC CEO.

The AUSTRAC CEO may, by written notice given to the person, cancel the undertaking.

The AUSTRAC CEO may publish a copy of the undertaking on AUSTRAC’s website, but the AUSTRAC CEO must delete from the copy information that the AUSTRAC CEO is satisfied:

is commercial in confidence; or

should not be released because it would be against the public interest to do so; or

consists of personal details of an individual.

If:

the AUSTRAC CEO publishes a copy of the undertaking on AUSTRAC’s website; and

the copy has information deleted from it;

the copy must include a note stating that information has been deleted.

198 Enforcement of undertakings

If:

a person has given an undertaking under section 197; and

the undertaking has not been withdrawn or cancelled; and

the AUSTRAC CEO considers that the person has breached the undertaking;

the AUSTRAC CEO may apply to the Federal Court for an order under subsection (2).

If the Federal Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders:

an order directing the person to comply with the undertaking;

an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

any other order that the Court considers appropriate.

199 Questioning and search powers in relation to monetary instruments

Person leaving Australia

A person who is:

about to leave Australia; or

in an embarkation area for the purpose of leaving Australia;

must, if required to do so by a police officer or a customs officer:

declare whether or not the person has with him or her any monetary instruments; and

declare the sum of the monetary instrument amounts for the monetary instruments that the person has with him or her; and

declare whether or not, to the best of the person’s knowledge and belief, a report under section 53 has been given in respect of any monetary instruments that the person has with him or her; and

produce to the officer any monetary instruments that the person has with him or her.

Person arriving in Australia

A person who arrives in Australia must, if required to do so by a police officer or a customs officer:

declare whether or not the person has with him or her any monetary instruments; and

declare the sum of the monetary instrument amounts for the monetary instruments that the person has with him or her; and

declare whether or not, to the best of the person’s knowledge and belief, a report under section 53 has been given in respect of any monetary instruments that the person has with him or her; and

produce to the officer any monetary instruments that the person has with him or her.

Officer may copy bearer negotiable instruments

(2AA) If a person produces to a police officer or a customs officer under paragraph (1)(f) or (2)(d):

a bearer negotiable instrument; or

(b) a thing prescribed by the AML/CTF Rules for the purposes of paragraph (c) of the definition of monetary instrument in section 5 that is able to be copied;

the officer may make a copy of the instrument or thing. Once copied, the officer must return the instrument or thing to the person.

Person leaving or arriving in Australia—seizing monetary instrument

A police officer or a customs officer may seize a monetary instrument produced to the officer under paragraph (1)(f) or (2)(d) if:

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may afford evidence as to the commission of an offence against section 53; or

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may be of interest under subsection (14).

Powers of examination and search

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

the person:

is about to leave Australia or has arrived in Australia; or

is about to board or leave, or has boarded or left, any ship or aircraft; and

either:

the officer is seeking to find out whether the person has with him or her any monetary instrument in respect of which a report under section 53 is required; or

the officer has reasonable grounds to suspect that the person has with him or her any monetary instrument that may be of interest under subsection (14).

Either:

a police officer; or

(b) a customs officer in respect of whom a declaration under Customs Act 1901 is in force;section 219ZA of the

may, with such assistance as is reasonable and necessary, search a person so long as:

any of the following subparagraphs applies:

the person is about to leave Australia;

the person has arrived in Australia;

the person is about to board or leave a ship or aircraft;

the person has boarded or left a ship or aircraft; and

the officer has reasonable grounds to suspect that there is on the person, or in clothing being worn by the person:

a monetary instrument in respect of which a report under section 53 is required; or

a monetary instrument that may be of interest under subsection (14).

A police officer or a customs officer may seize a monetary instrument found in the course of an examination or search under subsection (3) or (4) if:

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may afford evidence as to the commission of an offence against section 53; or

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may be of interest under subsection (14).

A person must not be searched under subsection (4) except by a person of the same sex.

Boarding of ships and aircraft

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

A police officer or a customs officer may, with such assistance as is reasonable and necessary:

board a ship or aircraft; or

examine or search the ship or aircraft, and any goods found on the ship or aircraft;

for the purpose of finding out whether there is at or in the place, or in the goods:

any monetary instrument in respect of which a report under section 53 is required; or

any monetary instrument that may be of interest under subsection (14).

Entry to eligible places

A police officer or a customs officer may, with such assistance as is reasonable and necessary:

go onto or enter any eligible place; and

examine the place, and any goods found at or in it;

for the purpose of finding out whether there is at or in the place, or in the goods:

any monetary instrument in respect of which a report under section 53 is required; or

any monetary instrument that may be of interest under subsection (14).

Seizure

A police officer or a customs officer may seize a monetary instrument found in the course of an examination or search under subsection (8) or (9) if:

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may afford evidence as to the commission of an offence against section 53; or

the police officer or customs officer has reasonable grounds to suspect that the monetary instrument may be of interest under subsection (14).

Offence

A person commits an offence if:

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty for contravention of this subsection: Imprisonment for 1 year or 60 penalty units, or both.

Civil penalty

If a person is subject to a requirement under subsection (1) or (2), the person must not engage in conduct that breaches the requirement.

Subsection (12) is a civil penalty provision.

Monetary instrument of interest

For the purposes of this section, a monetary instrument may be of interest if the monetary instrument:

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

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

(c) 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.

201 Arrest without warrant

If a police officer or a customs officer has reasonable grounds to believe that a person has committed an offence against subsection 53(1), the officer may arrest the person without warrant.

If a police officer or a customs officer has reasonable grounds to believe that a person has assaulted any police officer or customs officer in the execution of that officer’s duties under this Division, the first-mentioned officer may arrest the person without warrant.

A person commits an offence if:

the person engages in conduct; and

the conduct resists, obstructs or prevents the arrest of a person under this section.

Penalty: 10 penalty units.

Subsection (3) does not apply if the person has a reasonable excuse.

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

202 Notices to reporting entities

Each of the following persons is authorised to give notices under this section:

the AUSTRAC CEO;

an authorised officer;

the Commissioner of the Australian Federal Police;

a Deputy Commissioner of the Australian Federal Police;

(e) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979) who is:

a member of the Australian Federal Police; and

authorised in writing by the Commissioner of the Australian Federal Police for the purposes of this section;

the Chief Executive Officer of the Australian Crime Commission;

an examiner of the Australian Crime Commission;

(h) an approved examiner (within the meaning of the Proceeds of Crime Act 2002).

If a person authorised by subsection (1) believes on reasonable grounds that another person is a reporting entity, the authorised person may give a written notice to the other person requiring the other person to give the authorised person any information, or produce to the authorised person any documents, relevant to any or all of the following:

determining whether the other person provides designated services at or through a permanent establishment of the other person in Australia;

ascertaining details relating to any permanent establishment in Australia at or through which the other person provides designated services;

ascertaining details relating to designated services provided by the other person at or through a permanent establishment of the other person in Australia.

A person must not give a notice under subsection (2) unless the person reasonably believes that giving the notice is required:

to determine whether to take any action under this Act; or

in relation to proceedings under this Act.

A person must comply with a notice given to the person under subsection (2).

If:

a person is given a notice under subsection (2) in relation to information or a document; and

the person reasonably believes that the information or document is privileged from being given or produced on the ground of legal professional privilege;

the person must give the AUSTRAC CEO an LPP form in relation to the information or document within the period specified in the notice.

Subsection (5) is a civil penalty provision.

Note: For other provisions dealing with legal professional privilege, see sections 242 and 242A.

203 Contents of notices to reporting entities

A notice given by a person to another person under subsection 202(2) must:

state that the first-mentioned person believes that the notice is required:

to determine whether to take any action under this Act; or

in relation to proceedings under this Act;

(as the case requires); and

specify the name of the other person; and

specify the kind of information or documents required to be given or produced; and

specify the form and manner in which that information or those documents are to be given or produced; and

specify the period within which the information or documents must be given or produced; and

set out the effect of subsections 202(5) and (6) (information or documents privileged from being given or produced on the ground of legal professional privilege); and

set out the effect of section 204 (breaching a requirement under a notice); and

if the notice specifies that information about the notice must not be disclosed—set out the effect of section 207 (disclosing existence or nature of a notice).

204 Breaching a notice requirement

A person commits an offence if:

the person is subject to a requirement under subsection 202(4); and

the person engages in conduct; and

the person’s conduct breaches the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

205 Self-incrimination

A person is not excused from giving information or producing a document under section 202 on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.

However:

the information given or the document produced; or

giving the information or producing the document;

is not admissible in evidence against the person:

in civil proceedings other than:

proceedings under this Act; or

(ii) proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or

in criminal proceedings other than:

proceedings for an offence against this Act; or

(ii) proceedings for an offence against the Criminal Code that relates to this Act.

206 Division 400 and Chapter 5 of the Criminal Code

If a person, or an officer, employee or agent of a person, provides information under a notice under subsection 202(2), the person, officer, employee or agent is taken, for the purposes of Criminal Code, not to have been in possession of that information at any time.Division 400 and Chapter 5 of the

207 Disclosing existence or nature of notice

A person commits an offence if:

the person is given a notice under subsection 202(2); and

the notice specifies that information about the notice must not be disclosed; and

the person discloses the existence or nature of the notice.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to a legal practitioner (however described) for the purpose of obtaining legal advice.

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

Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to an IGIS official for the purposes of, or in connection with, the IGIS official performing a function or duty, or exercising a power, as an IGIS official.

Note: A defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection (see subsection 13.3(3) of the Criminal Code). For IGIS officials, see section 34C of the Inspector-General of Intelligence and Security Act 1986.

Subsection (1) does not apply to the disclosure of information by a reporting entity if:

the reporting entity is a member of a reporting group; and

the disclosure is made to another member of the reporting group.

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

208 Simplified outline

The following is a simplified outline of this Part:

• AUSTRAC is continued in existence.

• There is to be a Chief Executive Officer of AUSTRAC.

• The AUSTRAC CEO’s functions include the compilation and analysis of AUSTRAC information.

• The AUSTRAC CEO may arrange for the use of computer programs for any purposes for which the AUSTRAC CEO may take certain administrative action under this Act, the AML/CTF Rules or other instruments made under this Act.

• The AUSTRAC CEO may make AML/CTF Rules.

209 Establishment of AUSTRAC

(1) The Australian Transaction Reports and Analysis Centre established under the repealed Financial Transaction Reports Act 1988 continues in existence by force of this subsection, under and subject to the provisions of this Act.

The Australian Transaction Reports and Analysis Centre may also be known as AUSTRAC.

AUSTRAC consists of:

the AUSTRAC CEO; and

the staff of AUSTRAC.

Note: AUSTRAC does not have a legal identity separate from the Commonwealth.

(4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

AUSTRAC is a listed entity; and

the AUSTRAC CEO is the accountable authority of AUSTRAC; and

the following persons are officials of AUSTRAC:

the AUSTRAC CEO;

the staff of AUSTRAC referred to in section 224;

consultants engaged under subsection 225(1);

persons whose services are made available to the AUSTRAC CEO under subsection 225(3); and

the purposes of AUSTRAC include:

the function of AUSTRAC referred to in section 210; and

the functions of the AUSTRAC CEO referred to in section 212.

210 Function of AUSTRAC

The function of AUSTRAC is to assist the AUSTRAC CEO in the performance of the AUSTRAC CEO’s functions.

211 AUSTRAC CEO

There is to be a Chief Executive Officer of AUSTRAC.

The Chief Executive Officer of AUSTRAC may also be known as the AUSTRAC CEO.

(3) The office of Chief Executive Officer of AUSTRAC is, for all purposes, a continuation under that name of the office of Director of AUSTRAC established under the repealed Financial Transaction Reports Act 1988.

To avoid doubt, a reference in a law of the Commonwealth to the AUSTRAC CEO must, in relation to matters that occurred before the commencement of this section, be construed as a reference to the Director of AUSTRAC.

Note: See also Acts Interpretation Act 1901.section 25B of the

212 Functions of the AUSTRAC CEO

The functions of the AUSTRAC CEO are:

to retain, compile, analyse and disseminate AUSTRAC information; and

to provide access to, and to share, AUSTRAC information to support domestic and international efforts to combat money laundering and terrorism financing and other serious crimes; and

to provide advice and assistance, in relation to AUSTRAC information, to the persons and agencies who are authorised to access AUSTRAC information under Part 11; and

to advise and assist reporting entities in relation to their obligations under this Act, the regulations and the AML/CTF Rules; and

to advise and assist the representatives of reporting entities in relation to compliance by reporting entities with this Act, the regulations and the AML/CTF Rules; and

to facilitate gaining access on a timely basis to the financial, administrative and law enforcement information that the AUSTRAC CEO requires to properly undertake the AUSTRAC CEO’s financial intelligence functions; and

to establish such task forces as the AUSTRAC CEO considers appropriate; and

to promote compliance with this Act, the regulations and the AML/CTF Rules; and

to assist in the development of government policy or to assist academic research; and

such other functions as are conferred on the AUSTRAC CEO by or under:

this Act; or

the regulations; or

any other law of the Commonwealth; and

to do anything that is incidental or conducive to the performance of a function referred to in a preceding paragraph.

Note: The AUSTRAC CEO’s other functions include:

monitoring compliance with this Act, the regulations and the AML/CTF Rules (see section 190); and

making AML/CTF Rules (see section 229).

In performing the AUSTRAC CEO’s functions, the AUSTRAC CEO must:

consult with the following:

reporting entities or the representatives of reporting entities;

the Commissioner of the Australian Federal Police;

the Chief Executive Officer of the Australian Crime Commission;

the Commissioner of Taxation;

the Comptroller-General of Customs;

(vi) the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010); and

take into account any comments made in the course of those consultations.

In performing the AUSTRAC CEO’s functions under this Act, the AUSTRAC CEO must have regard to the following:

the integrity of the financial system;

crime reduction;

the desirability of ensuring that regulatory considerations are addressed in a way that does not impose unnecessary financial and administrative burdens on reporting entities;

the desirability of adopting a risk-based approach;

competitive neutrality;

competition;

economic efficiency;

privacy;

such other matters (if any) as the AUSTRAC CEO considers relevant.

In considering an exemption or modification under or in relation to the operation of this Act that could reasonably be expected to have an impact on the risk associated with money laundering or the financing of terrorism as that risk applies to a designated service, the AUSTRAC CEO must be satisfied that the risk associated with the proposed exemption or modification is low.

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

any relevant FATF Recommendations; and

any relevant Conventions mentioned in subsection 3(3); and

any relevant Resolutions mentioned in subsection 3(3).

Any failure to comply with the requirements of subsection (2), (3), (3A) or (4) in relation to the performance of a function of the AUSTRAC CEO does not affect the validity of the performance of the function.

Subsection (5) does not apply in determining the constitutional validity of the performance of the AUSTRAC CEO’s functions.

213 Policy principles

The Minister may give written policy principles to the AUSTRAC CEO about the performance of the AUSTRAC CEO’s functions.

The Minister must cause a copy of the policy principles to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which they were given to the AUSTRAC CEO.

The AUSTRAC CEO must comply with the policy principles (if any) when performing the AUSTRAC CEO’s functions.

Policy principles are not legislative instruments.

Subdivision B—Appointment of the AUSTRAC CEO etc.

214 Appointment of the AUSTRAC CEO etc.

The AUSTRAC CEO is to be appointed by the Minister by written instrument.

The AUSTRAC CEO is to be appointed on a full-time basis.

The AUSTRAC CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: The AUSTRAC CEO may be reappointed: see Acts Interpretation Act 1901.section 33AA of the

215 Remuneration and allowances of the AUSTRAC CEO

The AUSTRAC CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the AUSTRAC CEO is to be paid the remuneration that is determined by the Minister.

The AUSTRAC CEO is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

216 Leave of absence of the AUSTRAC CEO

The AUSTRAC CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

The Minister may grant the AUSTRAC CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

217 Resignation of the AUSTRAC CEO

The AUSTRAC CEO may resign his or her appointment by giving the Minister a written resignation.

219 Termination of the AUSTRAC CEO’s appointment

Termination

The Minister may terminate the appointment of the AUSTRAC CEO for misbehaviour or physical or mental incapacity.

The Minister may terminate the appointment of the AUSTRAC CEO if:

the AUSTRAC CEO:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors; or

the AUSTRAC CEO is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

the AUSTRAC CEO engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

(d) the AUSTRAC CEO fails, without reasonable excuse, to comply with Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; orsection 29 of the

the Minister is satisfied that the performance of the AUSTRAC CEO has been unsatisfactory for a significant period.

Conflict of interest

(3) If the Minister becomes aware, whether because of a disclosure under Public Governance, Performance and Accountability Act 2013 or otherwise, that the AUSTRAC CEO has an interest that could conflict with the proper performance of the AUSTRAC CEO’s duties, the Minister must make a written determination either that the interest does, or that it does not, pose a significant risk of a conflict of interest.section 29 of the

If the Minister determines that the interest poses a significant risk, the Minister must require the AUSTRAC CEO to dispose of that interest within a period specified by the Minister.

If:

the Minister requires the AUSTRAC CEO to dispose of an interest; and

the AUSTRAC CEO refuses or fails to comply with that requirement;

the Minister must terminate the appointment of the AUSTRAC CEO.

220 Other terms and conditions

The AUSTRAC CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

221 Acting appointments

The Minister may appoint a person to act as the AUSTRAC CEO:

during a vacancy in the office of AUSTRAC CEO (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when the AUSTRAC CEO is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see Acts Interpretation Act 1901.section 33A of the

222 Delegation by the AUSTRAC CEO

The AUSTRAC CEO may, by writing, delegate any or all of his or her functions or powers to a member of the staff of AUSTRAC.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the AUSTRAC CEO.

Note: See sections 34AA to 34A of the Acts Interpretation Act 1901.

223 Secretary may require the AUSTRAC CEO to give information

Information

The Secretary may, by written notice given to the AUSTRAC CEO, require the AUSTRAC CEO to:

prepare a document setting out specified information relating to the performance of the AUSTRAC CEO’s functions; and

give a copy of the document to the Secretary within the period specified in the notice.

Compliance with requirement

The AUSTRAC CEO must comply with a requirement under subsection (1).

224 Staff of AUSTRAC

(1) The staff of AUSTRAC are persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

the AUSTRAC CEO and the staff of AUSTRAC together constitute a Statutory Agency; and

the AUSTRAC CEO is the Head of that Statutory Agency.

225 Consultants and persons seconded to AUSTRAC

The AUSTRAC CEO may, on behalf of the Commonwealth, engage consultants to perform services for AUSTRAC in connection with the performance of any of the AUSTRAC CEO’s functions.

The terms and conditions of engagement of persons engaged under subsection (1) are such as the AUSTRAC CEO determines in writing.

The AUSTRAC CEO may also be assisted:

(a) by officers and employees of Agencies (within the meaning of the Public Service Act 1999); or

by officers and employees of authorities of the Commonwealth; or

by members of the Australian Federal Police; or

by officers and employees of a State or Territory; or

by officers and employees of authorities of a State or Territory; or

by members of the police force or police service of a State or Territory; or

by persons with suitable qualifications and experience who are officers, or employees, of some other body or organisation (whether located within or outside Australia);

whose services are made available to the AUSTRAC CEO in connection with the performance of any of the AUSTRAC CEO’s functions.

228 Directions by Minister

The Minister may give the AUSTRAC CEO a written direction about policies the AUSTRAC CEO should pursue, or priorities the AUSTRAC CEO should follow, in performing any of the AUSTRAC CEO’s functions.

The Minister must not give a direction under subsection (1) about a particular case.

The AUSTRAC CEO must comply with a direction under subsection (1).

A direction under subsection (1) is not a legislative instrument.

The Minister must cause a copy of each direction under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after giving the direction.

228A AUSTRAC CEO may use computers to take administrative action

The AUSTRAC CEO may, in writing, arrange for the use, under the AUSTRAC CEO’s control, of computer programs for any purposes for which the AUSTRAC CEO may or must take administrative action under a provision prescribed by the AML/CTF Rules for the purposes of this subsection.

The AML/CTF Rules may prescribe a provision for the purposes of subsection (1) if the provision is any of the following:

a provision of Part 3A of this Act (Reporting Entities Roll);

a provision of Part 6 of this Act (the Remittance Sector Register);

a provision of Part 6A of this Act (the Virtual Asset Service Provider Register);

a provision of the AML/CTF Rules made for the purposes of a provision of this Act mentioned in paragraph (a), (b) or (c) of this subsection;

a provision of an instrument made under a provision of this Act mentioned in paragraph (a), (b) or (c) of this subsection.

The AUSTRAC CEO must take reasonable steps to ensure that administrative action taken by the operation of a computer program under such an arrangement is consistent with the objects of this Act.

Administrative action taken by the operation of a computer program under such an arrangement is, for the purposes of this Act, the AML/CTF Rules and any other instrument made under this Act, taken to be administrative action taken by the AUSTRAC CEO.

Substituted decisions

The AUSTRAC CEO may substitute a decision for a decision the AUSTRAC CEO is taken to have made under subsection (4) if the AUSTRAC CEO is satisfied that the decision made by the operation of the computer program is not the correct or preferable decision.

The AUSTRAC CEO does not have a duty to consider whether to exercise the power under subsection (5) in respect of any decision, whether the AUSTRAC CEO is requested to do so by an applicant or by any other person, or in any other circumstances.

To avoid doubt, if:

(a) the AUSTRAC CEO is taken under subsection (4) to have made a decision under a provision of this Act, the AML/CTF Rules or an instrument made under this Act (the original provision); and

(b) the AUSTRAC CEO substitutes a decision (the substitute decision) under subsection (5) for that decision;

then, for the purposes of this Act, the AML/CTF Rules and any other instrument made under this Act, the AUSTRAC CEO is taken to have made the substitute decision under the original provision.

Arrangement not a legislative instrument

An arrangement made under subsection (1) is not a legislative instrument.

Meaning of administrative action

(9) Each of the following constitutes taking administrative action:

making a decision;

exercising any power or complying with any obligation;

doing anything else related to making a decision or exercising a power or complying with an obligation.

229 AML/CTF Rules

(1) The AUSTRAC CEO may, by writing, make rules (the AML/CTF Rules) prescribing matters required or permitted by any other provision of this Act to be prescribed by the AML/CTF Rules.

Note 1: AML/CTF Rules is short for Anti-Money Laundering/Counter-Terrorism Financing Rules.

Note 2: For amendment and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.

AML/CTF Rules are legislative instruments.

Ministerial directions with respect to the making of AML/CTF Rules

The Minister may give the AUSTRAC CEO a written direction about the exercise of the powers conferred on the AUSTRAC CEO by subsection (1).

The AUSTRAC CEO must comply with a direction under subsection (3).