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
55 Division 4 of Part 11
Repeal the Division, substitute:
Division 4 - Access to AUSTRAC information by Commonwealth, State or Territory agencies
125 Access to AUSTRAC information
(1) The AUSTRAC CEO may, in writing, authorise specified officials of a specified Commonwealth, State or Territory agency to access specified AUSTRAC information for the purposes of performing the agency's functions and duties and exercising the agency's powers.
Note 1: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) However, the AUSTRAC CEO may give an authorisation under subsection (1) in relation to an agency, authority, body or organisation of a State or Territory only if its head (however described) has given a written undertaking to the AUSTRAC CEO that it and its officials will comply with the Australian Privacy Principles in respect of AUSTRAC information obtained under subsection 121(2) or (3), this section or subsection 126(2).
Authorisation not a legislative instrument
(3) An authorisation under subsection (1) is not a legislative instrument.
126 Dealings with AUSTRAC information
(1) A person commits an offence if:
(a) the person is, or has been, an official of a Commonwealth, State or Territory agency; and
(b) the person has obtained AUSTRAC information under subsection 121(2) or (3), section 125 or subsection (2) of this section; and
(c) the person makes a record of, discloses or otherwise uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exception - functions, duties or powers of officials etc.
(2) Subsection (1) does not apply if:
(a) the making of the record, disclosure or use is for the purposes of, or in connection with, the performance or exercise of the person's functions, duties or powers as an official of a Commonwealth, State or Territory agency; or
(b) the disclosure is to another official of a Commonwealth, State or Territory agency for the purposes of, or in connection with, the performance or exercise of the other official's functions, duties or powers in relation to the agency; or
(c) the disclosure is to a Minister of the Commonwealth or of a State or Territory for the purposes of, or in connection with, the performance of that Minister's responsibilities; or
(d) the disclosure is in accordance with section 127.
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Exception - court or tribunal proceedings etc.
(3) Subsection (1) does not apply if the disclosure is to a person for the purposes of or in connection with:
(a) court or tribunal proceedings; or
(b) proposed or possible court or tribunal proceedings; or
(c) obtaining legal advice.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Secondary disclosure
(4) A person commits an offence if:
(a) AUSTRAC information is disclosed to the person under subsection (3); and
(b) the person discloses the information to another person.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(5) Subsection (4) does not apply if:
(a) the disclosure is for the purposes of or in connection with:
(i) the court or tribunal proceedings; or
(ii) the proposed or possible court or tribunal proceedings; or
(iii) obtaining or giving the legal advice; or
(b) the disclosure is permitted by this Division.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Division 5 - Disclosure of AUSTRAC information to foreign countries or agencies
127 Disclosure of AUSTRAC information to foreign countries or agencies
AUSTRAC CEO
(1) The AUSTRAC CEO may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the AUSTRAC CEO is satisfied that:
(a) where the AUSTRAC CEO considers it appropriate, the government of the foreign country, or the foreign agency, has given an undertaking for:
(i) protecting the confidentiality of the information; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and
(b) it is appropriate, in all the circumstances of the case, to do so.
Commonwealth, State or Territory agencies
(2) A person who is:
(a) the head (however described) of a Commonwealth, State or Territory agency referred to in subsection (3); or
(b) covered by an authorisation under subsection (4);
may disclose AUSTRAC information to the government of a foreign country, or to a foreign agency, if the person is satisfied that:
(c) the government of the foreign country, or the foreign agency, has given an undertaking for:
(i) protecting the confidentiality of the information; and
(ii) controlling the use that will be made of the information; and
(iii) ensuring that the information will be used only for the purpose for which it is disclosed to the government of the foreign country or to the foreign agency; and
(d) it is appropriate, in all the circumstances of the case, to do so.
List of agencies, authorities, bodies or organisations of the Commonwealth
(3) For the purposes of this section, the Commonwealth, State or Territory agencies are the following:
(a) the Department;
(b) the Attorney-General's Department;
(c) the Department of Foreign Affairs and Trade;
(d) the Australian Federal Police;
(e) the Australian Crime Commission;
(f) the Australian Prudential Regulation Authority;
(g) the Australian Securities and Investments Commission;
(h) the Australian Taxation Office;
(i) ASIO;
(j) ASIS;
(k) ASD;
(l) AGO;
(m) DIO;
(n) ONI;
(o) any other agency, authority, body or organisation of the Commonwealth that is prescribed by the AML/CTF Rules.
Note: See also the definition of agency in section 5.
Authorisations
(4) For the purposes of paragraph (2)(b), the head (however described) of a Commonwealth, State or Territory agency referred to in subsection (3) may, in writing, authorise an official of the Commonwealth, State or Territory agency.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(5) An authorisation under subsection (4) is not a legislative instrument.
Division 6 - Unauthorised accessing of or use or disclosure of AUSTRAC information
128 Unauthorised accessing of AUSTRAC information
A person commits an offence if:
(a) the person accesses information; and
(b) the information is AUSTRAC information; and
(c) the access is not permitted by this Part.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
129 Use or disclosure of AUSTRAC information disclosed in contravention of this Part
(1) A person commits an offence if:
(a) information is disclosed to the person; and
(b) the information is AUSTRAC information; and
(c) the disclosure to the person is in contravention of this Part; and
(d) the person makes a record of, discloses or otherwise uses the information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exception
(2) Subsection (1) does not apply if the person discloses the information for the purposes of an appropriate authority investigating the disclosure mentioned in paragraph (1)(c).
Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).