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ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006 - SECT 123

Offence of tipping off

Prohibitions

             (1)  A reporting entity must not disclose to a person other than an AUSTRAC entrusted person:

                     (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.

             (2)  If:

                     (a)  a reporting entity gives a report to the AUSTRAC CEO under section 41, 43 or 45; and

                     (b)  in connection with that report, the reporting entity (the recipient ) or another person (also the recipient ) is required by a notice under subsection 49(1) to give information or produce a document;

the recipient must not disclose to a person (except an AUSTRAC entrusted person, the person who gave the notice or any other person who has given a notice to the recipient under subsection 49(1) in connection with that report):

                     (c)  that the recipient is or has been required by a notice under subsection 49(1) to give information or produce a document; or

                     (d)  that the information has been given or the document has been produced; or

                     (e)  any information from which it could reasonably be inferred that:

                              (i)  the recipient had been required under subsection 49(1) to give information or produce a document; or

                             (ii)  the information had been given under subsection 49(1); or

                            (iii)  the document had been produced under subsection 49(1).

Exception--crime prevention

             (4)  Subsection (1) does not apply to the disclosure of information by a reporting entity if:

                     (a)  the reporting entity is:

                              (i)  a legal practitioner (however described); or

                             (ii)  a partnership or company that carries on a business of using legal practitioners (however described) to supply professional legal services; or

                            (iii)  a qualified accountant; or

                            (iv)  a partnership or company that carries on a business of using qualified accountants to supply professional accountancy services; or

                             (v)  a person specified in the AML/CTF Rules; and

                     (b)  the information relates to the affairs of a customer of the reporting entity; and

                     (c)  the disclosure is made for the purposes of dissuading the customer from engaging in conduct that constitutes, or could constitute:

                              (i)  evasion of a taxation law; or

                             (ii)  evasion of a law of a State or Territory that deals with taxation; or

                            (iii)  an offence against a law of the Commonwealth or of a State or Territory.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

Exception--legal advice

             (5)  Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to a legal practitioner (however described) for the purpose of obtaining legal advice.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

          (5A)  A person to whom information has been disclosed under subsection (5) must not disclose the information to another person.

Exception--audit or review of anti-money laundering and counter-terrorism financing program

          (5B)  Subsection (1) does not apply to the disclosure of information by a reporting entity if the disclosure is to a person appointed or engaged by the reporting entity to audit or review the reporting entity's anti-money laundering and counter-terrorism financing program.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5B) (see subsection 13.3(3) of the Criminal Code ).

          (5C)  A person to whom information has been disclosed under subsection (5B) must not disclose the information unless the disclosure is made to another person in connection with the audit or review of the reporting entity's anti-money laundering and counter-terrorism financing program.

Exception--Charter of the United Nations Act 1945

             (6)  Subsection (1) does not apply to the disclosure of information about the operation of Part 4 of the Charter of the United Nations Act 1945 .

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

Exception--members of a corporate group

             (7)  Subsection (1) does not apply to the disclosure of information by a reporting entity (the first entity ) if:

                     (a)  the first entity belongs to a corporate group; and

                     (b)  the information relates to the affairs of a person (the relevant person ) who is, or was, a customer of the first entity or who made inquiries referred to in subparagraph 41(1)(c)(i) of the first entity; and

                     (c)  the disclosure is made to a body corporate (the related body corporate ) that belongs to the corporate group; and

                     (d)  the related body corporate is a reporting entity or is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations; and

                     (e)  if the related body corporate is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations--the related body corporate has given the first entity a written undertaking for:

                              (i)  protecting the confidentiality of information that may be disclosed to the related body corporate under this subsection; 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 related body corporate; and

                      (f)  the disclosure is made for the purpose of informing the related body corporate about the risks involved in dealing with the relevant person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

       (7AA)  A reporting entity to whom information has been disclosed under subsection (7) must not disclose the information unless:

                     (a)  the disclosure is made to another reporting entity that belongs to the corporate group; and

                     (b)  the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the relevant person.

Exception--members of a designated business group

       (7AB)  Subsection (1) does not apply to the disclosure of information by a reporting entity (the first entity ) if:

                     (a)  the first entity belongs to a designated business group; and

                     (b)  the information relates to the affairs of a person (the relevant person ) who is, or was, a customer of the first entity or who made inquiries referred to in subparagraph 41(1)(c)(i) of the first entity; and

                     (c)  the disclosure is made to another person (the related person ) that belongs to the designated business group; and

                     (d)  the related person is a reporting entity or is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations; and

                     (e)  if the related person is regulated by one or more laws of a foreign country that give effect to some or all of the FATF Recommendations--the related person has given the first entity a written undertaking for:

                              (i)  protecting the confidentiality of information that may be disclosed to the related person under this subsection; 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 related person ; and

                      (f)  the disclosure is made for the purpose of informing the related person about the risks involved in dealing with the relevant person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7AB) (see subsection 13.3(3) of the Criminal Code ).

       (7AC)  A reporting entity to whom information has been disclosed under subsection (7AB) must not disclose the information unless:

                     (a)  the disclosure is made to another reporting entity that belongs to the designated business group; and

                     (b)  the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the relevant person.

Exception--remittance sector

          (7A)  Subsection (1) does not apply to the disclosure of information by a reporting entity if:

                     (a)  the reporting entity is a registered remittance affiliate of a registered remittance network provider and the disclosure is made to the registered remittance network provider; or

                     (b)  the reporting entity is a registered remittance network provider and the disclosure is made to a registered remittance affiliate of the registered remittance network provider.

          (7B)  A reporting entity to whom information has been disclosed under subsection (7A) must not disclose the information to another person.

Exception--ADI

             (8)  Subsection (1) does not apply to the disclosure of information by a reporting entity if:

                     (a)  the reporting entity is an ADI; and

                     (b)  the disclosure is to an owner-managed branch of the ADI.

          (8A)  A person to whom information has been disclosed under subsection (8) must not disclose the information to another person.

Exception--compliance with the law or law enforcement

             (9)  Subsection (1) does not apply to the disclosure of information by a reporting entity if:

                     (a)  the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory; or

                     (b)  the disclosure is to an Australian government body that has responsibility for law enforcement.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ).

Courts or tribunals

           (10)  Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988 , a reporting entity is not to be required to disclose to a court or tribunal information mentioned in subsection (1) or (2).

Offence

           (11)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (2), (5A), (5C), (7AA), (7AC), (7B) or (8A); and

                     (b)  the person engages in conduct; and

                     (c)  the person's conduct breaches the requirement.

Penalty for contravention of this subsection: Imprisonment for 2 years or 120 penalty units, or both.

Definition

           (12)  In this Act:

"corporate group" means a group of 2 or more bodies corporate that are related to each other under section 50 of the Corporations Act 2001 .



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