David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I table a supplementary memorandum relating to the government amendments to be moved to the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2007 and a correction to the explanatory memorandum. The memorandum was circulated in the chamber on 20 March 2007. I seek leave to move government amendments (1) to (4) on sheet QS416 together.

Leave granted.

I move:

(1)    Clause 2, page 2 (table item 6), omit the table item, substitute:

(2)   Schedule 1, page 8 (after line 32), after item 23, insert:

23A  Paragraph 127(3)(b)

Omit “or 133”, substitute “, 133 or 133A”.

(3)    Schedule 1, page 11 (after line 22), after item 40, insert:

40A  At the end of Division 4 of Part 11

Add:

133A  When the Director-General of ASIS may communicate AUSTRAC information to a foreign intelligence agency

        (1)    The Director-General of ASIS may communicate AUSTRAC information to a foreign intelligence agency if the Director-General is satisfied that:

             (a)    the foreign intelligence agency has given appropriate undertakings for:

                   (i)    protecting the confidentiality of the information; and

                  (ii)    controlling the use that will be made of it; and

                 (iii)    ensuring that the information will be used only for the purpose for which it is communicated to the foreign country; and

             (b)    it is appropriate, in all the circumstances of the case, to do so.

        (2)    The Director-General of ASIS may, in writing, authorise an ASIS official to access the AUSTRAC information and communicate it to the foreign intelligence agency on the Director-General’s behalf.

Note:   For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(4)    Schedule 1, page 15 (after line 12), before item 58, insert:

57A  Subsection 3(1) (at the end of paragraph (c) of the definition of non-reportable cash transaction)

Add “that occurred after the commencement of Division 3 of Part 3 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006”.

The government amendments are very straightforward. These are two substantive amendments: (1) and (4) are related and (2) and (3) are related. As I have said, amendment (1) is consequential on amendment (4). Amendment (1) amends the commencement clause table in clause 2 of the bill. The amendment relates to item 57A of the schedule to the bill. Amendment (1) will give amendment (4) retrospective commencement from 13 December 2006. I will explain the justification for this retrospective commencement when discussing amendment (4).

Amendment (2) is consequential upon amendment (3). Amendment (3) permits disclosure of the AUSTRAC information under a new section 133A of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Amendment (2) ensures that disclosure of the AUSTRAC information under the new section 133A is an exemption to the prohibition on disclosure pursuant to the terms of section 127 of the act.

Amendment (3) inserts a new item, item 40A, into the amendment bill. Item 40A inserts a new section, section 133A, into the Anti-Money Laundering and Counter-Terrorism Financing Act, permitting the Director-General of the Australian Security Intelligence Service, ASIS, to communicate AUSTRAC information to a foreign intelligence agency. ASIO has a similar power and we are simply mirroring that provision. This amendment is to ensure that ASIS, as a designated agency, can use AUSTRAC information to fulfil its functions. As I said, proposed section 133A mirrors section 133, which gives the Director-General of Security power to communicate AUSTRAC information to foreign intelligence agencies.

Amendment (4) removes the unintended outcome—and this is almost housekeeping—from the earlier amendment of the definition of ‘non-reportable cash transaction’ by item 56 of the Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006. Item 56 of the Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act narrowed the definition of ‘non-reportable cash transaction’ under the Financial Transactions Reporting Act to a transaction under that act. This was to ensure that there were not two identical provisions running at the same time. The restriction is not necessary, as the provisions of the Anti-Money Laundering and Counter-Terrorism Financing Act were not to commence until December 2008. Accordingly, an error has been made, and we seek to make the provision retrospective for the intervening months between December and now such that those offences will be offences pursuant to the Anti-Money Laundering and Counter-Terrorism Financing Act.

Amendment (1) thereby makes the amendment in amendment (4) retrospective. As I said, the reasons for that are set out in the supplementary explanatory memorandum that I have tabled. Retrospective application is justified because the offence of structuring was a pre-existing offence in the Financial Transactions Reporting Act. It was always intended that such conduct remain illegal, notwithstanding the provisions in the Anti-Money Laundering and Counter-Terrorism Financing Act being proclaimed as not to commence until December 2008. Retrospective application in those circumstances will remove any gap in time in the ability to prosecute such conduct, which was an unintended effect of the original amendment. The period of retrospectivity will only be for the period 13 December last year to the date of commencement of this bill, which we anticipate being not too long after it passes the Senate.