Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2024 (110 of 2024)

Schedule 10   Exemptions

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

7   At the end of Division 7 of Part 2

Add:

39A Exemption - assisting the investigation of certain offences

(1) This section applies if:

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

(b) the keep open notice is in force.

(2) 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.

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

(4) 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:

(a) 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

(b) 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:

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

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

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

(i) is an SES employee or acting SES employee in the agency; or

(ii) 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

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

(4) The agencies are as follows:

(a) the Australian Border Force;

(b) the Australian Crime Commission;

(c) the Australian Federal Police;

(d) the National Anti-Corruption Commission;

(e) the New South Wales Crime Commission;

(f) the police force or police service of a State or the Northern Territory;

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

(5) A keep open notice must:

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

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

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

(a) starting on the day specified in the notice; and

(b) ending on the earlier of:

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

(ii) 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:

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

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

(c) 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.

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

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

(b) 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

(c) 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

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

(9) 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

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

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

(b) an extension notice under subsection 39B(7).

(2) 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.

(3) The AUSTRAC CEO may revoke:

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

(b) 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.

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

(a) the agency that issued the notice; and

(b) the reporting entity to whom the notice was issued.

39D Exemption - when a suspicious matter reporting obligation arises

(1) 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.

(2) 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:

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

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

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

Exemptions - specified conditions

   

Item

Column 1

Designated service

Column 2

Conditions

1

item 2 or 3 of table 1 in section 6

(a) the reporting entity providing the designated service is a financial institution; and

(b) the designated service:

(i) relates to a correspondent banking relationship; and

(ii) occurs in circumstances where there is a geographical link in accordance with section 100; and

(iii) relates to signatories to the account who are employees of the other financial institution

2

paragraph (a) of item 17 of table 1 in section 6

(a) the reporting entity issues a cheque that the reporting entity draws on itself; and

(b) the cheque is drawn from an account held at the issuing ADI, building society, credit union or representative office of a foreign bank; and

(c) the cheque contains details of the payee; and

(d) the face value of the cheque is less than $5,000

3

paragraph (a) of item 17 of table 1 in section 6

(a) the reporting entity issues a cheque that the reporting entity draws on itself; and

(b) the cheque is funded by physical currency; and

(c) the face value of the cheque is less than $1,000

4

item 25 or 26 of table 1 in section 6

the sum of the face value of the traveller's cheque or traveller's cheques issued, cashed or redeemed in any one transaction is less than $1,000

5

item 25 or 26 of table 1 in section 6

(a) the issuing, cashing or redeeming of the traveller's cheque or traveller's cheques is one of 2 or more transactions that the reporting entity reasonably believes to be linked; and

(b) the sum of the face value of the traveller's cheque or traveller's cheques issued, cashed or redeemed as part of the linked transactions is less than $1,000

6

item 33 of table 1 in section 6

(a) the designated service is a disposal; and

(b) the disposal occurs on a prescribed financial market (within the meaning of the Corporations Act 2001); and

(c) the agent gives the proceeds of the disposal directly to an ancillary fund (within the meaning of the Income Tax Assessment Act 1997) that provides an undertaking to:

(i) distribute, by cheque or electronic funds transfer, the proceeds of the disposal of the security to a deductible gift recipient; and

(ii) list on its public website within 14 business days, for a period of 12 months, the details of the distribution of the proceeds of the disposal of the security to the deductible gift recipient; and

(d) the value of the security does not exceed $10,000

7

paragraph (a) of item 43 of table 1 in section 6

(a) no additional contributions from the customer are accepted in relation to the interest; and

(b) the whole of the interest of the customer in the superannuation fund is cashed out; and

(c) the account in which the interest of the customer in the superannuation fund was held is closed as soon as practicable after the cashing out of that interest; and

(d) the application for the interest in the superannuation fund to be cashed out was not made online using the Departing Australia Superannuation Payment internet-based application system administered by the Australian Taxation Office; and

(e) on the date the customer applies for the interest in the superannuation fund to be cashed out, the value of the interest does not exceed $1,000

8

item 43 or 45 of table 1 in section 6

(a) the application of the member relates to the cashing out of the interest held by the customer in:

(i) a superannuation fund; or

(ii) an approved deposit fund; or

(iii) a RSA; and

(b) the application was made online using the Departing Australia Superannuation Payment internet-based application system administered by the Australian Taxation Office; and

(c) the whole of the interest of the member is cashed out; and

(d) no additional contributions from the customer are accepted in relation to the customer's interest; and

(e) the account in which the interest of the customer was held is closed as soon as practicable after the cashing out of that interest; and

(f) the value of the interest in the customer's superannuation fund, approved deposit fund or RSA does not exceed $5,000 on the date of the application

9

item 50 of table 1 or item 14 of table 3 in section 6

(a) currency is moved into or out of an account; and

(b) the provider of the account is an ADI, a building society, a bank, a credit union or a representative office of a foreign bank; and

(c) the value of the currency is less than $1,000

10

item 50 of table 1 or item 14 of table 3 in section 6

(a) currency is not moved into or out of an account where the account provider is an ADI, a building society, a bank, a credit union or a representative office of a foreign bank; and

(b) either or both of the following apply:

(i) the proceeds are in the form of physical currency;

(ii) the funding source is in the form of physical currency; and

(c) the value of the currency is less than $1,000

11

item 1 of table 2 in section 6

the retail value of the bullion is less than $5,000

12

item 1, 2, 4, 6, 7, 8 or 9 of table 3 in section 6

(a) the reporting entity is a casino; and

(b) the designated service does not involve online gambling services; and

(c) the designated service involves an amount of less than $5,000

13

item 1, 2, 4, 6, 7, 8 or 9 of table 3 in section 6

(a) the reporting entity is a casino; and

(b) the designated service does not involve online gambling services; and

(c) the designated service involves the customer giving or receiving only gaming chips or tokens; and

(d) the designated service involves an amount of $5,000 or more

14

item 1 or 2 of table 3 in section 6

the reporting entity providing the designated service is an on-course bookmaker or a totalisator agency board

15

item 4, 7 or 8 of table 3 in section 6

(a) the reporting entity is an on-course bookmaker or totalisator agency board; and

(b) the designated service involves an amount of less than $5,000

16

item 5 or 6 of table 3 in section 6

(a) the designated service is provided by the reporting entity by way of a gaming machine; and

(b) the designated service is not provided at a casino

17

item 8, 9 or 10 of table 3 in section 6

(a) the designated service is provided by the reporting entity by way of a gaming machine; and

(b) the designated service is not provided at a casino; and

(c) the designated service involves an amount of less than $5,000

39F Exemption - intermediary institutions

(1) 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.

(2) 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.

(3) Subsection (2) is a civil penalty provision.

(4) 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.

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