Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020 (133 of 2020)
Schedule 1 Amendments
Part 4 Secrecy and access
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
51 Divisions 1 and 2 of Part 11
Repeal the Divisions, substitute:
Division 1 - Introduction
120 Simplified outline of this Part
• Except as permitted by this Act, an AUSTRAC entrusted person must not access, make a record of, authorise access to, disclose or otherwise use AUSTRAC information.
• A reporting entity must not disclose:
(a) that the reporting entity has given, or is required to give, a report under subsection 41(2); or
(b) any information from which it could reasonably be inferred that the reporting entity has given, or is required to give, that report.
• The AUSTRAC CEO may authorise officials of Commonwealth, State or Territory agencies to access AUSTRAC information for the purposes of performing the agency's functions and duties and exercising the agency's powers.
• In certain circumstances, AUSTRAC information may be disclosed to governments of foreign countries or to foreign agencies.
• There are restrictions on persons using or disclosing AUSTRAC information where the information was disclosed to the persons in contravention of this Part.
Division 2 - AUSTRAC entrusted persons
121 Offence - AUSTRAC entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an AUSTRAC entrusted person; and
(b) the person accesses, makes a record of, authorises access to, discloses or otherwise uses information; and
(c) the information is AUSTRAC information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exceptions
(2) Subsection (1) does not apply if the access, making of the record, authorisation of the access, disclosure or use:
(a) is for the purposes of this Act or the Financial Transaction Reports Act 1988; or
(b) is for the purposes of the performance of the functions of the AUSTRAC CEO; or
(c) is for the purposes of, or in connection with, the performance or exercise of the person's functions, duties or powers in relation to AUSTRAC; or
(d) is in accordance with a provision of this Part; or
(e) is for the purposes of the Law Enforcement Integrity Commissioner Act 2006.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply if the disclosure is:
(a) to an official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the official's functions, duties or powers in relation to the agency; or
(b) to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister's responsibilities.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Conditions
(4) If:
(a) a person who is an AUSTRAC entrusted person discloses AUSTRAC information to another person under this section; and
(b) the other person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory;
the AUSTRAC CEO may, in writing and at the time of the disclosure, impose conditions to be complied with in relation to the making of a record, disclosure or use of the information by the other person.
Secondary dealings
(5) A person commits an offence if:
(a) the person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory; and
(b) AUSTRAC information is disclosed to the person under subsection (2); and
(c) the person is not subject to conditions under subsection (4) in relation to the information; and
(d) the person discloses the information to another person.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(6) A person commits an offence if:
(a) the person is none of the following:
(i) an AUSTRAC entrusted person;
(ii) an official of a Commonwealth, State or Territory agency;
(iii) a Minister of the Commonwealth or of a State or Territory; and
(b) AUSTRAC information is disclosed to the person under subsection (2); and
(c) the person is subject to conditions under subsection (4) in relation to the information; and
(d) the person makes a record of, discloses or otherwise uses the information; and
(e) the making of the record, disclosure or use referred to in paragraph (d) breaches any of those conditions.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Instrument not a legislative instrument
(7) An instrument under subsection (4) is not a legislative instrument.