Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2024 (110 of 2024)
Schedule 9 Powers and definitions
Part 1 Examination power
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
5 At the end of Part 14
Add:
Division 3 - Other powers to obtain information and documents
Subdivision A - Examination of persons
172A Power of AUSTRAC CEO to obtain information and documents
(1) This section applies if the AUSTRAC CEO believes on reasonable grounds that a person has information or a document that is relevant to:
(a) compliance with this Act, the regulations or the AML/CTF Rules; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.
(2) The AUSTRAC CEO may, by written notice given to the person, require the person:
(a) to produce to the AUSTRAC CEO, within the period and in the manner specified in the notice, any such documents; or
(b) to appear before an examiner at the time and place specified in the notice:
(i) for examination under this Division, on oath or affirmation and to answer questions; and
(ii) to produce any such documents.
(3) The notice must:
(a) if paragraph (2)(b) applies - state the general nature of the matter to which the questions will relate; and
(b) in any case set out the effect of subsections (4) and 172F(1).
(4) A person commits an offence if the person intentionally or recklessly fails to comply with a notice under subsection (2).
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
172B Proceedings at examination
Sections 172C to 172H apply if, in accordance with a notice given under section 172A, a person (in this Division called the examinee ) appears before another person (in this Division called the examiner ) for examination.
172C Requirements made of persons appearing for examination
(1) If a person appears for examination in accordance with a notice given under subsection 172A(2), the examiner may examine the person on oath or affirmation and may, for that purpose:
(a) require the person to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to the person.
(2) The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.
(3) A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (1).
Penalty: 3 months imprisonment.
(4) The examiner may require the person to answer a question that is put to the person at the examination and is relevant to:
(a) compliance with this Act, the regulations or the AML/CTF Rules; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, the regulations or the AML/CTF Rules.
(5) A person commits an offence if the person intentionally or recklessly refuses or fails to comply with a requirement made under subsection (4).
Penalty: Imprisonment for 2 years.
172D Examination to take place in private
(1) An examination under this Division must take place in private and the examiner may give directions about who may be present during it, or during a part of it.
(2) A person commits an offence of strict liability if:
(a) the person is present at the examination; and
(b) the person is not:
(i) the examiner or examinee; or
(ii) a member of the staff of AUSTRAC approved by the examiner; or
(iii) entitled to be present by virtue of a direction under subsection (1) or subsection 172F(1).
Penalty: 30 penalty units.
172E Procedures for holding an examination
(1) The examiner may decide to hold an examination under this Division:
(a) at one or more physical venues; or
(b) at one or more physical venues and using virtual examination technology that allows a person to appear at all or part of the examination without being physically present at the examination; or
(c) using virtual examination technology only.
(2) Subsection (3) applies if the examination is held:
(a) at one or more physical venues and using virtual examination technology; or
(b) using virtual examination technology only.
(3) The examiner must ensure that the use of the virtual examination technology is reasonable.
(4) If the examination is held:
(a) at more than one physical venue; or
(b) at one or more physical venues and using virtual examination technology; or
(c) using virtual examination technology only;
the examiner may appoint a single place and time at which the examination is taken to have been held.
(5) This section applies to part of an examination in the same way that it applies to all of an examination.
(6) In this section:
virtual examination technology means any technology that allows a person to appear at all or part of an examination under this Division without being physically present at the examination.
172F Examinee's lawyer may attend
(1) The examinee's lawyer may be present at the examination and may, at such times during the examination as the examiner determines:
(a) address the examiner; and
(b) examine the examinee;
about matters about which the examiner has examined the examinee.
(2) If, in the examiner's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the examiner may require the person to stop addressing the examiner, or examining the examinee, as the case requires.
(3) A person commits an offence of strict liability if the person refuses or fails to comply with a requirement made under subsection (2).
Penalty: 20 penalty units.
172G Record of examination
(1) The examiner may, and must if the examinee so requests, cause a record to be made of statements made at an examination under this Division.
(2) If a record made under subsection (1) is in writing or is reduced to writing:
(a) the examiner may require the examinee to read it, or to have it read to the examinee, and may require the examinee to sign it; and
(b) the examiner must, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the examiner imposes.
(3) A person commits an offence of strict liability if the person fails to comply with a requirement made under paragraph (2)(a).
Penalty: 3 months imprisonment.
172H Giving to other persons copies of written record of examination
(1) The AUSTRAC CEO may give a copy of the whole or a part of a written record of an examination made under subsection 172G(1) to a person's lawyer if the lawyer satisfies the AUSTRAC CEO that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.
(2) A person commits an offence of strict liability if:
(a) the AUSTRAC CEO gives a copy of the whole or a part of a written record of an examination to a person under subsection (1); and
(b) the person, or any other person who has possession, custody or control of the copy or a copy of it:
(i) uses the copy or a copy of it; or
(ii) publishes, or communicates to another person, the copy, a copy of it, or any part of the copy's contents;
except in connection with preparing, beginning or carrying on, or in the course of, a proceeding.
Penalty: 30 penalty units.
(3) The AUSTRAC CEO may, subject to such conditions (if any) as it imposes, give to a person a copy of the whole or a part of a written record of the examination made under subsection 172G(1).
172J Copies of record of examination given subject to conditions
A person (the first person ) commits an offence of strict liability if:
(a) a copy of the whole or a part of a record is given to a person under subsection 172G(2) or 172H(3) subject to conditions; and
(b) the first person:
(i) is the person referred to in paragraph (a); or
(ii) has possession, custody or control of the copy or a copy of it; and
(c) the first person engages in conduct; and
(d) the first person's conduct breaches the condition.
Penalty: 30 penalty units.
172K Self-incrimination
(1) For the purposes of this Division, it is not a reasonable excuse for an individual to refuse or fail:
(a) to answer a question; or
(b) to produce a document; or
(c) to sign a record;
in accordance with a requirement made of the individual under this Division, on the ground that answering the question, producing the document or signing the record might tend to incriminate the individual or expose the individual to a penalty.
(2) Subsection (3) applies if:
(a) before making an oral statement in answer to a question, or signing a record, in accordance with a requirement made under this Division, the individual claims that the statement or the signing of the record (as the case may be) might tend to incriminate the individual or make the individual liable to a penalty; and
(b) the statement or the signing of the record (as the case may be) might, in fact, tend to incriminate the individual or make the individual so liable.
(3) The statement or the fact that the individual has signed the record (as the case may be) is not admissible in evidence against the individual in:
(a) civil or criminal proceedings; or
(b) a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of the making of a statement - the falsity of the statement; or
(d) in the case of the signing of a record - the falsity of any statement contained in the record.
Note: The law relating to legal professional privilege is not affected by this Act (see section 242).
Subdivision B - Evidentiary use of certain material
172L Statements made at an examination - proceedings against examinee
(1) A statement that a person makes at an examination under this Division of the person is admissible in evidence against the person in a proceeding referred to in subsection (2) unless:
(a) because of subsection 172K(3), the statement is not admissible in evidence against the person in the proceeding; or
(b) the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or
(c) the statement is qualified or explained by another statement made at the examination, evidence of the other statement is not tendered in the proceeding, and the person objects to the admission of evidence of the first-mentioned statement; or
(d) the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.
Note: The law relating to legal professional privilege is not affected by this Act (see section 242).
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
(3) Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.
(4) If a written record of an examination of a person is signed by the person under subsection 172G(2) or authenticated in any other manner specified in the AML/CTF Rules, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Division limits or affects the admissibility in the proceeding of other evidence of statements made at the examination.
172M Statements made at an examination - other proceedings
(1) If direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding referred to in subsection (2), a statement that the absent witness made at an examination under this Division of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure the witness' attendance; or
(iii) all reasonable steps have been taken to find the absent witness but the witness cannot be found; or
(b) if it does not so appear to the court or tribunal - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
172N Weight of evidence admitted under section 172M
(1) This section applies if evidence of a statement made by a person at an examination under this Division of the person is admitted under section 172M in a proceeding.
(2) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related the statement was made; and
(b) any reason the person may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.
(3) If the person is not called as a witness in the proceeding:
(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting the person's credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.
(4) However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.
172P Objection to admission of statements made at examination
(1) A party (the adducing party ) to a proceeding referred to in subsection (2) may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination under this Division; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.
(2) For the purposes of subsection (1), the proceedings are:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal in Australia or any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
(3) A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.
(4) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of objection.
(5) The period prescribed by subsection (4) may be extended by the court or tribunal or by agreement between the parties concerned.
(6) On receiving a notice given under subsection (4), the adducing party must give to the court or tribunal or other body referred to in paragraph (2)(b) (as the case requires) a copy of:
(a) the notice under subsection (1) and any writing that subsection (3) required to accompany that notice; and
(b) the notice under subsection (4).
(7) If subsection (6) is complied with, the court or tribunal or other body may either:
(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.
(8) If a notice has been given in accordance with subsections (1) and (3), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:
(a) the other party has, in accordance with subsection (4), objected to the statement being so admitted; or
(b) the court or tribunal or other body gives the other party leave to object to the statement being so admitted.
172Q Material otherwise admissible
Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.
Subdivision C - Miscellaneous
172R Application of Crimes Act and Evidence Act
(1) For the purposes of Part III of the Crimes Act 1914, an examination under this Division is a judicial proceeding.
(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply to an examination under this Division in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.