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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Anti-Money Laundering and
Counter-Terrorism Financing
Amendment Bill 2017
No. , 2017
(Justice)
A Bill for an Act to amend legislation relating to
combating money laundering and terrorism
financing, and for related purposes
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Objects of Act
3
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
3
Part 2--Digital currencies
4
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
4
Part 3--Remittance activities
22
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
22
Part 4--Regulatory relief to industry
23
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
23
Financial Transaction Reports Act 1988
24
Part 5--Investigation and enforcement
26
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
26
Part 6--Revision of definitions
33
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
33
Part 7--Other regulatory matters
35
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
35
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
1
A Bill for an Act to amend legislation relating to
1
combating money laundering and terrorism
2
financing, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Anti-Money Laundering and Counter-Terrorism
6
Financing Amendment Act 2017.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A day or days to be fixed by Proclamation.
However, if any of the provisions do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments Schedule 1
Objects of Act Part 1
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
3
Schedule 1--Amendments
1
Part 1--Objects of Act
2
Anti-Money Laundering and Counter-Terrorism Financing
3
Act 2006
4
1 Before paragraph 3(1)(a)
5
Insert:
6
(aa) to provide for measures to detect, deter and disrupt money
7
laundering, the financing of terrorism, and other serious
8
financial crimes; and
9
(ab) to provide relevant Australian government bodies and their
10
international counterparts with the information they need to
11
investigate and prosecute money laundering offences,
12
offences constituted by the financing of terrorism, and other
13
serious crimes; and
14
(ac) to support cooperation and collaboration among reporting
15
entities, AUSTRAC and other government agencies,
16
particularly law enforcement agencies, to detect, deter and
17
disrupt money laundering, the financing of terrorism, and
18
other serious crimes; and
19
(ad) to promote public confidence in the Australian financial
20
system through the enactment and implementation of controls
21
and powers to detect, deter and disrupt money laundering, the
22
financing of terrorism, and other serious crimes; and
23
Schedule 1 Amendments
Part 2 Digital currencies
4
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
Part 2--Digital currencies
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
2 Section 4
4
After:
5
•
Providers of registrable designated remittance services or
6
registrable remittance network services must be registered
7
with the AUSTRAC CEO.
8
insert:
9
•
Providers of registrable digital currency exchange services
10
must be registered with the AUSTRAC CEO.
11
3 Section 5
12
Insert:
13
digital currency means:
14
(a) a digital representation of value that:
15
(i) functions as a medium of exchange, a store of economic
16
value, or a unit of account; and
17
(ii) is not issued by or under the authority of a government
18
body; and
19
(iii) is interchangeable with money (including through the
20
crediting of an account) and may be used as
21
consideration for the supply of goods or services; and
22
(iv) is generally available to members of the public without
23
any restriction on its use as consideration; or
24
(b) a means of exchange or digital process or crediting declared
25
to be digital currency by the AML/CTF Rules;
26
but does not include any right or thing that, under the AML/CTF
27
Rules, is taken not to be digital currency for the purposes of this
28
Act.
29
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
5
Digital Currency Exchange Register has the meaning given by
1
section 76B.
2
4 Section 5 (definition of e-currency)
3
Repeal the definition.
4
5 Section 5 (paragraph (c) of the definition of money)
5
Omit "other currency; and", substitute "other currency.".
6
6 Section 5 (paragraph (d) of the definition of money)
7
Repeal the paragraph.
8
7 Section 5 (definition of precious metal)
9
Repeal the definition.
10
8 Section 5 (definition of property)
11
After "money", insert "or digital currency".
12
9 Section 5
13
Insert:
14
registered digital currency exchange provider means a person
15
registered under section 76E as a digital currency exchange
16
provider.
17
registrable digital currency exchange service means a designated
18
service that:
19
(a) is covered by item 50A of table 1 in section 6; and
20
(b) is not of a kind specified in the AML/CTF Rules.
21
10 Section 5 (definition of registration)
22
Repeal the definition, substitute:
23
registration means:
24
(a) in, or in relation to, Part 6--registration as any of the
25
following:
26
(i) a remittance network provider;
27
(ii) an independent remittance dealer;
28
Schedule 1 Amendments
Part 2 Digital currencies
6
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(iii) a remittance affiliate of a registered remittance network
1
provider; or
2
(b) in, or in relation to, Part 6A--registration as a digital
3
currency exchange provider.
4
11 Section 5 (paragraph (b) of the definition of threshold
5
transaction)
6
Repeal the paragraph.
7
12 Section 5 (after paragraph (c) of the definition of threshold
8
transaction)
9
Insert:
10
(ca) if:
11
(i) the regulations provide that this definition applies to a
12
specified transaction involving digital currency; and
13
(ii) the regulations provide that a specified amount is the
14
transaction threshold for the specified transaction;
15
the specified transaction, where the total amount transferred
16
is not less than the transaction threshold for the transaction;
17
or
18
13 Section 5 (definition of threshold transaction)
19
Omit "Paragraphs (a) and (b) do", substitute "Paragraph (a) does".
20
14 Section 5 (note 2 at the end of the definition of threshold
21
transaction)
22
Omit "e-currency", substitute "digital currency".
23
15 Subsection 6(2) (after table item 50)
24
Insert:
25
26
50A
exchanging digital currency for
money (whether Australian or not)
or exchanging money (whether
Australian or not) for digital
currency, where the exchange is
provided in the course of carrying
on a digital currency exchange
the person whose digital currency or
money is exchanged
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
7
business
16 Subsection 6(4) (table item 7)
1
After "money" (wherever occurring), insert "or digital currency".
2
17 Subsection 6(4) (table item 8)
3
After "money", insert "or digital currency".
4
18 Section 19 (heading)
5
Repeal the heading, substitute:
6
19 Translation of digital currency to Australian currency
7
19 Section 19
8
Omit "e-currency" (wherever occurring), substitute "digital currency".
9
20 After Part 6
10
Insert:
11
Part 6A--The Digital Currency Exchange Register
12
Division 1--Simplified outline
13
76 Simplified outline
14
The following is a simplified outline of this Part:
15
•
This Part provides for a system of registration for providers of
16
digital currency exchange services.
17
•
Division 2 sets out offences and civil penalties in relation to
18
the provision of registrable digital currency exchange services
19
by persons who are not registered.
20
•
Division 3 requires the AUSTRAC CEO to maintain the
21
Digital Currency Exchange Register and sets out the process
22
of applying for registration.
23
Schedule 1 Amendments
Part 2 Digital currencies
8
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
Division 2--Restrictions on providing digital currency
1
exchange services
2
76A Unregistered persons must not provide certain digital currency
3
exchange services
4
Registrable digital currency exchange services
5
(1) A person (the first person) must not provide a registrable digital
6
currency exchange service to another person if the first person is
7
not a registered digital currency exchange provider.
8
Breach of conditions
9
(2) A person must not breach a condition to which the registration of
10
the person as a digital currency exchange provider is subject.
11
Offences
12
(3) A person commits an offence if:
13
(a) the person is subject to a requirement under subsection (1) or
14
(2); and
15
(b) the person engages in conduct; and
16
(c) the person's conduct breaches the requirement.
17
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
18
(4) Strict liability applies to paragraphs (3)(b) and (c).
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
(5) A person commits an offence if:
21
(a) the person is subject to a requirement under subsection (1) or
22
(2); and
23
(b) the person engages in conduct; and
24
(c) the person's conduct breaches the requirement; and
25
(d) the AUSTRAC CEO previously:
26
(i) gave the person a direction under subsection 191(2) in
27
relation to subsection (1) or (2) of this section; or
28
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
9
(ii) accepted an undertaking given by the person under
1
section 197 in relation to subsection (1) or (2) of this
2
section; and
3
(e) that was the only occasion on which the AUSTRAC CEO
4
previously gave such a direction to, or accepted such an
5
undertaking from, the person.
6
Penalty: Imprisonment for 4 years or 1,000 penalty units, or both.
7
(6) Strict liability applies to paragraphs (5)(b) and (c).
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
(7) A person commits an offence if:
10
(a) the person is subject to a requirement under subsection (1) or
11
(2); and
12
(b) the person engages in conduct; and
13
(c) the person's conduct breaches the requirement; and
14
(d) the AUSTRAC CEO previously:
15
(i) gave the person a direction under subsection 191(2) in
16
relation to subsection (1) or (2) of this section; or
17
(ii) accepted an undertaking given by the person under
18
section 197 in relation to subsection (1) or (2) of this
19
section; and
20
(e) that was not the only occasion on which the AUSTRAC CEO
21
previously gave such a direction to, or accepted such an
22
undertaking from, the person.
23
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
24
(8) Strict liability applies to paragraphs (7)(b) and (c).
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
(9) A person commits an offence if:
27
(a) the person is subject to a requirement under subsection (1) or
28
(2); and
29
(b) the person engages in conduct; and
30
(c) the person's conduct breaches the requirement; and
31
(d) either:
32
Schedule 1 Amendments
Part 2 Digital currencies
10
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(i) the person had previously been convicted of an offence
1
against subsection (3), (5) or (7), and that conviction has
2
not been set aside or quashed; or
3
(ii) an order had previously been made against the person
4
under section 19B of the Crimes Act 1914 in respect of
5
an offence against subsection (3), (5) or (7), and that
6
order has not been set aside.
7
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
8
(10) Strict liability applies to paragraphs (9)(b) and (c).
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
Civil penalty
11
(11) Subsections (1) and (2) are civil penalty provisions.
12
Division 3--Registration of persons
13
76B Digital Currency Exchange Register
14
(1) The AUSTRAC CEO must maintain a register for the purposes of
15
this Part, to be known as the Digital Currency Exchange Register.
16
(2) The AUSTRAC CEO may maintain the Digital Currency
17
Exchange Register by electronic means.
18
(3) The Digital Currency Exchange Register is not a legislative
19
instrument.
20
(4) The AML/CTF Rules may make provision for and in relation to the
21
following:
22
(a) the correction of entries in the Digital Currency Exchange
23
Register;
24
(b) the publication of the Digital Currency Exchange Register in
25
whole or part, or of specified information entered on the
26
Digital Currency Exchange Register;
27
(c) any other matter relating to the administration or operation of
28
the Digital Currency Exchange Register.
29
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
11
76C Information to be entered on the Digital Currency Exchange
1
Register
2
If the AUSTRAC CEO decides to register a person under
3
subsection 76E(2), the AUSTRAC CEO must enter the following
4
details on the Digital Currency Exchange Register:
5
(a) the name of the person;
6
(b) any conditions to which the registration of the person is
7
subject;
8
(c) the date on which the registration takes effect;
9
(d) the registrable details in relation to the person.
10
76D Applications for registration
11
(1) A person may apply in writing to the AUSTRAC CEO for
12
registration as a digital currency exchange provider.
13
(2) An application under subsection (1) must:
14
(a) be in the approved form; and
15
(b) contain the information required by the AML/CTF Rules.
16
(3) Without limiting the information that the AML/CTF Rules may
17
require under paragraph (2)(b), the AML/CTF Rules may require
18
information relating to the matters mentioned in
19
paragraph 76E(2)(a) or in Rules made under paragraph 76E(2)(b)
20
(these provisions deal with matters to which the AUSTRAC CEO
21
must have regard in deciding whether to register a person).
22
Deemed refusal in certain circumstances
23
(4) If the AUSTRAC CEO has not made a decision on the application
24
within the relevant period, the AUSTRAC CEO is taken to have
25
decided not to register the person at the end of the relevant period.
26
The relevant period is the period of 90 days beginning on the latest
27
of the following days:
28
(a) the day the application is made;
29
(b) if the AUSTRAC CEO requests information under
30
subsection 76Q(1) in relation to the application--the last day
31
such information is provided;
32
Schedule 1 Amendments
Part 2 Digital currencies
12
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(c) if the person makes a submission under section 76S in
1
relation to the application--the day the person makes the
2
submission.
3
Note:
A deemed decision not to register the person is reviewable (see
4
Part 17A).
5
(5) However, if the AUSTRAC CEO determines in writing that:
6
(a) the application cannot be dealt with properly within the 90
7
day period, either because of its complexity or because of
8
other special circumstances; and
9
(b) that period is extended by a specified period of not more than
10
30 days;
11
the relevant period is that period as so extended. The AUSTRAC
12
CEO must notify the applicant in writing of the determination
13
before the end of the 90 day period.
14
76E Registration by AUSTRAC CEO
15
When section applies
16
(1) This section applies if an application has been made under
17
section 76D for registration of a person.
18
When AUSTRAC CEO must register a person
19
(2) The AUSTRAC CEO must decide to register the person in
20
accordance with the application if the AUSTRAC CEO is satisfied
21
that it is appropriate to do so, having regard to:
22
(a) whether registering the person would involve a significant
23
money laundering, financing of terrorism or other serious
24
crime risk; and
25
(b) such other matters (if any) as are specified in the AML/CTF
26
Rules under this paragraph.
27
Note:
A decision not to register the person is reviewable (see Part 17A).
28
Matters that may be specified in the AML/CTF Rules
29
(3) Without limiting the matters that the AML/CTF Rules may specify
30
under paragraph (2)(b), the matters may relate to the following:
31
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
13
(a) offences of which the applicant for registration, or any other
1
person, has been charged or convicted under the law of the
2
Commonwealth, a State or Territory or a foreign country;
3
(b) the compliance or non-compliance of the applicant, or any
4
other person, with this Act or any other law;
5
(c) the legal and beneficial ownership and control of the
6
applicant, or any other person.
7
Notice of decision to register
8
(4) The AUSTRAC CEO must, as soon as practicable after deciding to
9
register an applicant, give a written notice to the applicant.
10
Contents of notice of decision to register
11
(5) A notice under subsection (4) must specify:
12
(a) the conditions (if any) to which the registration is subject (see
13
section 76G); and
14
(b) the date on which the registration takes effect.
15
76F Spent convictions scheme
16
The AML/CTF Rules made under paragraph 76D(2)(b) or
17
76E(2)(b) must not affect the operation of Part VIIC of the Crimes
18
Act 1914 (which includes provisions that, in certain circumstances,
19
relieve persons from the requirement to disclose spent convictions
20
and require persons aware of such convictions to disregard them).
21
76G Registration may be subject to conditions
22
(1) The AUSTRAC CEO may, in writing, impose conditions to which
23
the registration of a person under this Part is subject.
24
Note:
A decision to impose a condition is reviewable (see Part 17A).
25
(2) Without limiting the conditions that the AUSTRAC CEO may
26
impose under subsection (1), the conditions may relate to the
27
following:
28
(a) the value of digital currency or money exchanged;
29
Schedule 1 Amendments
Part 2 Digital currencies
14
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(b) the volume of digital currency exchanged (whether by
1
reference to a particular period, a particular kind of digital
2
currency, or otherwise);
3
(c) the kinds of digital currencies exchanged;
4
(d) requiring notification of the exchange of particular kinds of
5
digital currency, changes in circumstances, or other specified
6
events.
7
Note:
Section 76P imposes a general obligation in relation to notification of
8
changes in circumstances.
9
76H When registration of a person ceases
10
(1) The registration of a person ceases at the earliest of the following
11
times:
12
(a) when the cancellation of the registration of the person under
13
section 76J takes effect;
14
(b) when the entry relating to the registration of the person is
15
removed from the Digital Currency Exchange Register under
16
subsection 76M(2);
17
(c) subject to subsection (2)--3 years after the day on which the
18
registration took effect;
19
(d) in the case of an individual--when the individual dies;
20
(e) in the case of a body corporate--when the body corporate
21
ceases to exist.
22
(2) Paragraph (1)(c) is subject to the AML/CTF Rules made under
23
section 76L (which deals with renewal of registration).
24
76J Cancellation of registration
25
(1) The AUSTRAC CEO may cancel the registration of a person if the
26
AUSTRAC CEO is satisfied that it is appropriate to do so, having
27
regard to:
28
(a) whether the continued registration of the person involves, or
29
may involve, a significant money laundering, financing of
30
terrorism or other serious crime risk; or
31
(b) one or more breaches by the person of a condition of
32
registration; or
33
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
15
(c) such other matters (if any) as are specified in the AML/CTF
1
Rules under this paragraph.
2
(2) The AUSTRAC CEO may also cancel the registration of a person
3
if the AUSTRAC CEO has reasonable grounds to believe that the
4
registered person no longer carries on a business that involves
5
providing a digital currency exchange service.
6
Note:
A decision to cancel a registration is reviewable (see Part 17A).
7
(3) The cancellation of the registration of a person takes effect on the
8
day specified in the notice given to the person under
9
subsection 233C(1).
10
(4) The AUSTRAC CEO may publish, in the manner specified in the
11
AML/CTF Rules, a list of the names of persons whose registration
12
has been cancelled and the date the cancellation takes effect.
13
76K Suspension of registration
14
(1) The AML/CTF Rules may make provision for and in relation to the
15
suspension of registrations by the AUSTRAC CEO under this Part.
16
(2) The AML/CTF Rules may provide for matters including, but not
17
limited to, the following:
18
(a) the grounds for suspension of registration;
19
(b) the effect of suspension on registration;
20
(c) the period for which suspensions have effect;
21
(d) making entries in and removing entries from the Digital
22
Currency Exchange Register in relation to suspension;
23
(e) notices of suspension;
24
(f) review of decisions relating to suspension.
25
76L Renewal of registration
26
(1) The AML/CTF Rules may make provision for and in relation to the
27
renewal of registrations by the AUSTRAC CEO under this Part.
28
(2) The AML/CTF Rules may provide for matters including, but not
29
limited to, the following:
30
(a) the making of applications for renewal;
31
Schedule 1 Amendments
Part 2 Digital currencies
16
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(b) the period within which applications for renewal may be
1
made;
2
(c) the criteria for determining applications for renewal;
3
(d) entries in the Digital Currency Exchange Register in relation
4
to renewal;
5
(e) the giving of notices relating to decisions on applications for
6
renewal;
7
(f) review of decisions relating to applications for renewal;
8
(g) the period for which renewed registrations have effect.
9
(3) In particular, the AML/CTF Rules may provide that:
10
(a) if the registration of a person would otherwise cease at the
11
end of the period of 3 years commencing on the day on
12
which the registration took effect; and
13
(b) before the end of that period, an application for renewal of
14
the registration was made to the AUSTRAC CEO within the
15
period, and in the manner provided for, in the AML/CTF
16
Rules;
17
the registration of the person continues in effect after the end of
18
that period in accordance with the Rules.
19
76M Removal of entries from the Digital Currency Exchange
20
Register
21
Removal on request
22
(1) A person who is a registered digital currency exchange provider
23
may request the AUSTRAC CEO, in writing, to remove the entry
24
relating to the registration of the person from the Digital Currency
25
Exchange Register.
26
(2) If a person makes a request under subsection (1), the AUSTRAC
27
CEO must remove the entry from the Digital Currency Exchange
28
Register.
29
Removal on cessation of registration
30
(3) If the registration of a person ceases under another provision of this
31
Part, the AUSTRAC CEO must remove the entry relating to the
32
registration from the Digital Currency Exchange Register.
33
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
17
Notice of removal
1
(4) The AUSTRAC CEO must, as soon as reasonably practicable,
2
notify a person, in writing, if the AUSTRAC CEO has acted under
3
subsection (3) in relation to the person (unless the person has died
4
or, in the case of a body corporate, ceased to exist).
5
76N AML/CTF Rules--general provision
6
If a provision of this Part provides for the AML/CTF Rules to
7
make provision in relation to a matter relating to the registration or
8
proposed registration of a person, the AML/CTF Rules may make
9
different provision in relation to a matter depending on different
10
circumstances.
11
76P Registered persons to advise of material changes in
12
circumstance etc.
13
(1) A person who is registered under this Part must advise the
14
AUSTRAC CEO of the following:
15
(a) any change in circumstances that could materially affect the
16
person's registration;
17
(b) any matters specified in the AML/CTF Rules for the
18
purposes of this paragraph.
19
(2) A person who is required by this section to advise the AUSTRAC
20
CEO of a change in circumstances or a matter must do so:
21
(a) in accordance with the approved form; and
22
(b) within 14 days of the change in circumstances or the matter
23
arising (however described).
24
Civil penalty
25
(3) Subsection (1) is a civil penalty provision.
26
76Q AUSTRAC CEO may request further information
27
(1) The AUSTRAC CEO may, in writing, request further information
28
from any person for the purposes of making a decision under this
29
Part.
30
Schedule 1 Amendments
Part 2 Digital currencies
18
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(2) The AUSTRAC CEO is not required to make a decision under this
1
Part until any information requested under subsection (1) in
2
relation to the decision has been provided.
3
76R Immunity from suit
4
An action, suit or proceeding (whether criminal or civil) does not
5
lie against:
6
(a) the Commonwealth; or
7
(b) the AUSTRAC CEO; or
8
(c) a member of the staff of AUSTRAC;
9
in relation to the publication of the Digital Currency Exchange
10
Register or a list of a kind mentioned in subsection 76J(4).
11
76S Steps to be taken by AUSTRAC CEO before making certain
12
reviewable decisions
13
(1) Before making a reviewable decision under section 76E, 76G or
14
76J in relation to a person, the AUSTRAC CEO must give a
15
written notice to the person containing:
16
(a) the terms of the proposed decision; and
17
(b) if the proposed decision is to cancel a registration--the date
18
on which the cancellation is proposed to take effect; and
19
(c) the reasons for the proposed decision; and
20
(d) a statement that the person may, within 28 days of the giving
21
of the notice, make a submission under this section in relation
22
to the proposed decision.
23
(2) The AUSTRAC CEO is not required to give a notice under this
24
section if the AUSTRAC CEO is satisfied that it is inappropriate to
25
do so because of the urgency of the circumstances.
26
Division 4--Basis of registration
27
76T Basis of registration
28
Registration under this Part is on the basis that:
29
(a) the registration may cease as mentioned in section 76H; and
30
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
19
(b) the registration may be suspended as mentioned in
1
section 76K; and
2
(c) the registration may be made subject to conditions as
3
mentioned in section 76G; and
4
(d) the registration may cease, be suspended or be made subject
5
to conditions by or under later legislation; and
6
(e) no compensation is payable if the registration ceases, is
7
suspended or made subject to conditions as mentioned in any
8
of the above paragraphs.
9
21 Paragraph 142(1)(b)
10
After "money", insert ", digital currency".
11
22 Subsection 142(2)
12
After "money", insert ", digital currency".
13
23 Paragraph 142(3)(a)
14
After "money", insert ", digital currency".
15
24 At the end of subsection 184(1A)
16
Add:
17
; (e) subsections 76A(1) and (2) (which deal with providing
18
certain digital currency exchange services without being
19
registered);
20
(f) subsection 76P(1) (which deals with notifying the
21
AUSTRAC CEO of certain matters).
22
25 Section 186A (heading)
23
Repeal the heading, substitute:
24
186A Amount of penalty--breaches of certain provisions of Part 6,
25
Part 6A or Part 3A
26
26 Subsection 186A(1)
27
After "(a Part 6 infringement notice provision)", insert ",
28
subsection 76A(1) or (2) or 76P(1) (a Part 6A infringement notice
29
provision)".
30
Schedule 1 Amendments
Part 2 Digital currencies
20
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
27 Subsection 186A(2)
1
After "Part 6 infringement notice provision", insert ", a Part 6A
2
infringement notice provision".
3
28 Paragraph 186A(3)(a)
4
After "Part 6 infringement notice provision", insert ", a Part 6A
5
infringement notice provision".
6
29 Paragraph 186A(4)(a)
7
After "Part 6 infringement notice provision", insert ", a Part 6A
8
infringement notice provision".
9
30 Paragraph 186A(4)(b)
10
After "Part 6 infringement notice provisions", insert ", Part 6A
11
infringement notice provisions".
12
31 Paragraph 186A(4)(b)
13
After "Part 6 infringement notice provision", insert ", a Part 6A
14
infringement notice provision".
15
32 Subparagraph 189(b)(i)
16
Omit "or 74(2), (4), (6) or (8)", substitute ", 74(2), (4), (6) or (8) or
17
76A(3), (5), (7) or (9)".
18
33 Subparagraph 189(c)(i)
19
Omit "or 74(2), (4), (6) or (8)", substitute ", 74(2), (4), (6) or (8) or
20
76A(3), (5), (7) or (9)".
21
34 Section 233B (after table item 3)
22
Insert:
23
24
3A
A decision under subsection 76D(4) or section 76E to refuse to register a
person as a digital currency exchange provider.
3B
A decision under section 76G to impose conditions to which a person's
registration is subject.
3C
A decision under section 76J to cancel a person's registration.
Amendments Schedule 1
Digital currencies Part 2
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
21
35 Section 233B (at the end of the table)
1
Add:
2
3
7
A decision that is declared by the AML/CTF Rules under
paragraph 75H(2)(g), 75J(2)(f), 76K(2)(f) or 76L(2)(f) to be a reviewable
decision for the purposes of this section.
36 Paragraph 233C(1)(b)
4
After "section 75G", insert "or 76J".
5
37 Subsection 233C(2)
6
Omit "subsection 75B(6) (about deemed refusal)", substitute
7
"subsection 75B(6) or 76D(4) (about deemed refusals)".
8
Schedule 1 Amendments
Part 3 Remittance activities
22
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
Part 3--Remittance activities
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
38 Paragraph 75C(2)(a)
4
Omit "or people smuggling", substitute ", people smuggling or other
5
serious crime".
6
39 Subsection 75E(1)
7
Omit "under subsection 75C(2)", substitute "under this Part".
8
40 Paragraph 75G(1)(a)
9
Omit "or people smuggling", substitute ", people smuggling or other
10
serious crime".
11
41 After subsection 75G(1)
12
Insert:
13
(1A) The AUSTRAC CEO may also cancel the registration of a person
14
if the AUSTRAC CEO has reasonable grounds to believe that the
15
registered person no longer carries on a business that gives rise to
16
the requirement to be registered under this Part.
17
Amendments Schedule 1
Regulatory relief to industry Part 4
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
23
Part 4--Regulatory relief to industry
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
42 Section 5
4
Insert:
5
corporate group has the meaning given by subsection 123(12).
6
43 Section 5 (at the end of the definition of financial
7
institution)
8
Add:
9
The AML/CTF Rules made under paragraph (e) may specify
10
different persons to be financial institutions for the purposes of
11
different provisions of this Act.
12
44 Subsection 6(2) (table items 51 and 53)
13
Repeal the items.
14
45 Subsection 6(3) (table items 1 and 2)
15
After "carrying on a", insert "bullion-dealing".
16
46 Subsection 6(4) (table items 1, 2, 3, 4, 6, 9, 11, 12 and 13)
17
After "carrying on a", insert "gambling".
18
47 Subsections 97(1) and (2)
19
After "with another financial institution", insert "that will involve a
20
vostro account".
21
48 Subsections 98(1) and (2)
22
After "with another financial institution", insert "that involves a vostro
23
account".
24
49 Subsection 99(1)
25
After "with another person", insert "that will involve a vostro account".
26
Schedule 1 Amendments
Part 4 Regulatory relief to industry
24
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
50 Subsection 99(2)
1
After "with another person", insert "that involves a vostro account".
2
51 Paragraph 123(7)(a)
3
After "designated business group", insert "or a corporate group".
4
52 Paragraph 123(7)(b)
5
Repeal the paragraph.
6
53 Paragraph 123(7)(d)
7
After "designated business group", insert "or the corporate group (as the
8
case may be)".
9
54 Paragraph 123(7AA)(a)
10
After "designated business group", insert "or the corporate group (as the
11
case may be)".
12
55 At the end of section 123
13
Add:
14
Definition
15
(12) In this Act:
16
corporate group means a group of 2 or more bodies corporate that
17
are related to each other under section 50 of the Corporations Act
18
2001.
19
Financial Transaction Reports Act 1988
20
56 Subsection 3(1) (paragraph (c) of the definition of cash
21
dealer)
22
Repeal the paragraph, substitute:
23
(c) a motor vehicle dealer who acts as an insurer or insurance
24
intermediary;
25
Amendments Schedule 1
Regulatory relief to industry Part 4
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
25
57 Subsection 3(1) (subparagraphs (k)(i) and (iii) of the
1
definition of cash dealer)
2
Repeal the subparagraphs.
3
Schedule 1 Amendments
Part 5 Investigation and enforcement
26
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
Part 5--Investigation and enforcement
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
58 Section 5
4
Insert:
5
designated infringement notice provision has the meaning given
6
by subsection 184(4).
7
59 Before paragraph 184(1A)(aaa)
8
Insert:
9
(aaaa) a designated infringement notice provision (see
10
subsection (4));
11
60 After subsection 184(1A)
12
Insert:
13
(1B) Despite subsection (1), an infringement notice relating to the
14
alleged contravention of a designated infringement notice
15
provision may only be given to a person by the AUSTRAC CEO.
16
(1C) The AUSTRAC CEO must not issue an infringement notice
17
relating to a contravention of subsection 32(1), 41(2), 43(2), 45(2)
18
or 49(2) unless the AUSTRAC CEO considers that issuing such a
19
notice is appropriate in the particular case after taking into account:
20
(a) the nature and extent of the contravention; and
21
(b) the seriousness of the contravention; and
22
(c) the circumstances in which the contravention took place; and
23
(d) any other matter the AUSTRAC CEO considers to be
24
relevant.
25
61 At the end of section 184
26
Add:
27
(4) In this Act:
28
Amendments Schedule 1
Investigation and enforcement Part 5
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
27
designated infringement notice provision means any of the
1
following provisions:
2
(a) subsection 32(1) (which deals with customer identification
3
procedures to be carried out by reporting entities);
4
(b) subsection 41(2) (which deals with reporting certain
5
suspicious matters);
6
(c) subsection 43(2) (which deals with reporting a threshold
7
transaction);
8
(d) subsection 45(2) (which deals with reporting an international
9
funds transfer instruction);
10
(e) subsection 47(2) (which deals with reporting on compliance
11
with the Act and other instruments);
12
(f) subsection 49(2) (which deals with providing further
13
information on request);
14
(g) subsection 116(2), (3) or (4) (which deal with making and
15
retaining certain records).
16
62 After section 186A
17
Insert:
18
186B Amount of penalty--breaches of designated infringement
19
notice provisions
20
(1) The penalty to be specified in an infringement notice for an alleged
21
contravention of a designated infringement notice provision by a
22
body corporate must be a pecuniary penalty equal to 60 penalty
23
units.
24
(2) The penalty to be specified in an infringement notice for an alleged
25
contravention of a designated infringement notice provision by a
26
person other than a body corporate must be a pecuniary penalty
27
equal to 12 penalty units.
28
63 Subsection 191(2)
29
Repeal the subsection, substitute:
30
(2) The AUSTRAC CEO may give the reporting entity a written
31
direction requiring the reporting entity to do one or both of the
32
following:
33
Schedule 1 Amendments
Part 5 Investigation and enforcement
28
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(a) to take specified action directed towards ensuring that the
1
reporting entity does not contravene the civil penalty
2
provision, or is unlikely to contravene the civil penalty
3
provision, in the future;
4
(b) in the case of a contravention of subsection 43(2), 45(2) or
5
47(2)--to take specified action to remedy the contravention
6
by giving the relevant report to the AUSTRAC CEO within a
7
period specified in the direction.
8
64 Application of amendment
9
Paragraph 191(2)(b) of the Anti-Money Laundering and
10
Counter-Terrorism Financing Act 2006 as in force after the
11
commencement of this item applies in relation to a contravention that
12
occurs on or after that commencement.
13
65 Subsection 191(3)
14
Omit "subsection (2)", substitute "paragraph (2)(a)".
15
66 After subsection 191(3)
16
Insert:
17
(3A) The AUSTRAC CEO:
18
(a) must not act under paragraph (2)(b) if it appears to the
19
AUSTRAC CEO that the contravention occurred more than
20
24 months before the day on which a direction would be
21
issued; and
22
(b) must not act under paragraph (2)(b) unless the AUSTRAC
23
CEO has:
24
(i) assessed the risks that have arisen in view of the
25
contravention; and
26
(ii) determined that giving a direction under that paragraph
27
is an appropriate and proportionate response in the
28
circumstances.
29
67 After subsection 199(2)
30
Insert:
31
Amendments Schedule 1
Investigation and enforcement Part 5
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
29
Person leaving or arriving in Australia--seizing physical currency
1
(2A) A police officer or a customs officer may seize physical currency
2
produced to the officer under paragraph (1)(f) or (2)(d) if:
3
(a) the police officer or customs officer has reasonable grounds
4
to suspect that the physical currency may afford evidence as
5
to the commission of an offence against section 53; or
6
(b) the police officer or customs officer has reasonable grounds
7
to suspect that the physical currency may be of interest under
8
subsection (14).
9
68 Subsection 199(3)
10
Repeal the subsection, substitute:
11
Powers of examination and search
12
(3) A police officer or a customs officer may, with such assistance as
13
is reasonable and necessary, examine an article which a person has
14
with him or her if:
15
(a) the person:
16
(i) is about to leave Australia or has arrived in Australia; or
17
(ii) is about to board or leave, or has boarded or left, any
18
ship or aircraft; and
19
(b) either:
20
(i) the officer is seeking to find out whether the person has
21
with him or her any physical currency in respect of
22
which a report under section 53 is required; or
23
(ii) the officer has reasonable grounds to suspect that the
24
person has with him or her any physical currency that
25
may be of interest under subsection (14).
26
69 Subsection 199(4)
27
Omit "for the purpose of finding out whether the person has with him or
28
her any physical currency in respect of which a report under section 53
29
is required,".
30
70 Paragraph 199(4)(d)
31
Repeal the paragraph, substitute:
32
Schedule 1 Amendments
Part 5 Investigation and enforcement
30
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(d) the officer has reasonable grounds to suspect that there is on
1
the person, or in clothing being worn by the person:
2
(i) physical currency in respect of which a report under
3
section 53 is required; or
4
(ii) physical currency that may be of interest under
5
subsection (14).
6
71 Subsection 199(5)
7
Repeal the subsection, substitute:
8
(5) A police officer or a customs officer may seize physical currency
9
found in the course of an examination or search under
10
subsection (3) or (4) if:
11
(a) the police officer or customs officer has reasonable grounds
12
to suspect that the physical currency may afford evidence as
13
to the commission of an offence against section 53; or
14
(b) the police officer or customs officer has reasonable grounds
15
to suspect that the physical currency may be of interest under
16
subsection (14).
17
72 Subsections 199(8), (9) and (10)
18
Repeal the subsections, substitute:
19
(8) A police officer or a customs officer may, with such assistance as
20
is reasonable and necessary:
21
(a) board a ship or aircraft; or
22
(b) examine or search the ship or aircraft, and any goods found
23
on the ship or aircraft;
24
for the purpose of finding out whether there is at or in the place, or
25
in the goods:
26
(c) any physical currency in respect of which a report under
27
section 53 is required; or
28
(d) any physical currency that may be of interest under
29
subsection (14).
30
Entry to eligible places
31
(9) A police officer or a customs officer may, with such assistance as
32
is reasonable and necessary:
33
Amendments Schedule 1
Investigation and enforcement Part 5
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
31
(a) go onto or enter any eligible place; and
1
(b) examine the place, and any goods found at or in it;
2
for the purpose of finding out whether there is at or in the place, or
3
in the goods:
4
(c) any physical currency in respect of which a report under
5
section 53 is required; or
6
(d) any physical currency that may be of interest under
7
subsection (14).
8
Seizure
9
(10) A police officer or a customs officer may seize physical currency
10
found in the course of an examination or search under
11
subsection (8) or (9) if:
12
(a) the police officer or customs officer has reasonable grounds
13
to suspect that the physical currency may afford evidence as
14
to the commission of an offence against section 53; or
15
(b) the police officer or customs officer has reasonable grounds
16
to suspect that the physical currency may be of interest under
17
subsection (14).
18
73 At the end of section 199
19
Add:
20
Civil penalty
21
(12) If a person is subject to a requirement under subsection (1) or (2),
22
the person must not engage in conduct that breaches the
23
requirement.
24
(13) Subsection (12) is a civil penalty provision.
25
Currency of interest
26
(14) For the purposes of this section, physical currency may be of
27
interest if the physical currency:
28
(a) may be relevant to the investigation of, or prosecution of a
29
person for, an offence against a law of the Commonwealth or
30
of a State or Territory; or
31
Schedule 1 Amendments
Part 5 Investigation and enforcement
32
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(b) may be of assistance in the enforcement of the Proceeds of
1
Crime Act 2002 or regulations under that Act; or
2
(c) may be of assistance in the enforcement of a law of a State or
3
Territory that corresponds to the Proceeds of Crime Act 2002
4
or regulations under that Act.
5
74 After subsection 200(13)
6
Insert:
7
(13A) A police officer or customs officer may seize a bearer negotiable
8
instrument if:
9
(a) the bearer negotiable instrument:
10
(i) is produced to a police officer or a customs officer
11
under subsection (1) or (2); or
12
(ii) is found by a police officer or a customs officer in the
13
course of an examination under subsection (4), (5), (6),
14
(7), (8) or (9); and
15
(b) the police officer or customs officer has reasonable grounds
16
to believe that the bearer negotiable instrument:
17
(i) may be relevant to the investigation of, or prosecution
18
of a person for, an offence against a law of the
19
Commonwealth or of a State or Territory; or
20
(ii) may be of assistance in the enforcement of the Proceeds
21
of Crime Act 2002 or regulations under that Act; or
22
(iii) may be of assistance in the enforcement of a law of a
23
State or Territory that corresponds to the Proceeds of
24
Crime Act 2002 or regulations under that Act.
25
75 At the end of section 200
26
Add:
27
Civil penalty
28
(15) If a person is subject to a requirement under subsection (1) or (2),
29
the person must not engage in conduct that breaches the
30
requirement.
31
(16) Subsection (15) is a civil penalty provision.
32
Amendments Schedule 1
Revision of definitions Part 6
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
33
Part 6--Revision of definitions
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
76 Section 5 (paragraph (a) of the definition of eligible place)
4
Repeal the paragraph.
5
77 Section 5 (at the end of the definition of investigating
6
officer)
7
Add:
8
; or (f) an Australian Commission for Law Enforcement Integrity
9
officer.
10
78 Section 5 (definition of signatory)
11
Repeal the definition, substitute:
12
signatory, in relation to an account with an account provider,
13
means the account holder or a person authorised by the account
14
holder to manage or exercise effective control of the account,
15
whether alone or jointly with one or more other persons.
16
79 Section 5 (definition of stored value card)
17
Repeal the definition, substitute:
18
stored value card means a thing (whether real or virtual):
19
(a) that stores monetary value in a form other than physical
20
currency; or
21
(b) that gives access to monetary value stored in a form other
22
than physical currency; or
23
(c) that is declared to be a stored value card by the AML/CTF
24
Rules;
25
but does not include:
26
(d) a debit card or a credit card (whether real or virtual) linked to
27
an account provided by a financial institution; or
28
(e) unless declared under paragraph (c):
29
Schedule 1 Amendments
Part 6 Revision of definitions
34
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
(i) a thing that is intended to give access to monetary value
1
in a debit card or credit card account provided by a
2
financial institution; or
3
(ii) a gaming chip or token; or
4
(iii) a thing that stores, or gives access to, digital currency;
5
or
6
(f) a thing that, under the AML/CTF Rules, is taken not to be a
7
stored value card.
8
Amendments Schedule 1
Other regulatory matters Part 7
No. , 2017
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
35
Part 7--Other regulatory matters
1
Anti-Money Laundering and Counter-Terrorism Financing
2
Act 2006
3
80 Paragraph 212(1)(a)
4
After "eligible collected information", insert "or AUSTRAC
5
information".
6
81 After paragraph 212(1)(a)
7
Insert:
8
(aa) to provide access to, and to share, AUSTRAC information to
9
support domestic and international efforts to combat money
10
laundering and terrorism financing and other serious crimes;
11
and
12
82 After paragraph 212(1)(d)
13
Insert:
14
(da) to facilitate gaining access on a timely basis to the financial,
15
administrative and law enforcement information that the
16
AUSTRAC CEO requires to properly undertake the
17
AUSTRAC CEO's financial intelligence functions; and
18
83 After paragraph 212(1)(f)
19
Insert:
20
; and (g) to do anything that is incidental or conducive to the
21
performance of a function referred to in a preceding
22
paragraph.
23
84 After subsection 212(3)
24
Insert:
25
(3A) In considering an exemption or modification under or in relation to
26
the operation of this Act that could reasonably be expected to have
27
an impact on the risk associated with money laundering or the
28
financing of terrorism as that risk applies to a designated service,
29
Schedule 1 Amendments
Part 7 Other regulatory matters
36
Anti-Money Laundering and Counter-Terrorism Financing Amendment
Bill 2017
No. , 2017
the AUSTRAC CEO must be satisfied that the risk associated with
1
the proposed exemption or modification is low.
2
85 Subsection 212(5)
3
After "(3)", insert ", (3A)".
4