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ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006 - SECT 252 Regulations

ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006 - SECT 252

Regulations

  (1)   The Governor - General may make regulations prescribing matters:

  (a)   required or permitted to be prescribed by this Act; or

  (b)   necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Penalties

  (2)   The regulations may prescribe penalties for offences against the regulations. A penalty must not be more than 50 penalty units.

Fees

  (3)   The regulations may make provision for and in relation to fees payable in respect of the performance of a function, or the exercise of a power, by the AUSTRAC CEO.

  (4)   A fee must not be such as to amount to taxation.

  (5)   A fee is payable to the Commonwealth.

  A reporting entity is a financial institution, or other person, who provides designated services. (Designated services are listed in section   6.)

  A reporting entity must carry out a procedure to verify a customer's identity before providing a designated service to the customer. However, in special cases, the procedure may be carried out after the provision of the designated service.

  Certain pre - commencement customers are subject to modified identification procedures.

  Certain low - risk services are subject to modified identification procedures.

  Reporting entities must report the following to the Chief Executive Officer of AUSTRAC (the Australian Transaction Reports and Analysis Centre):

  (a)   suspicious matters;

  (b)   certain transactions above a threshold.

  Certain international funds transfer instructions must be reported to the AUSTRAC CEO.

  Cross - border movements of monetary instruments must be reported to the AUSTRAC CEO, a customs officer or a police officer if the total amount moved is above a threshold.

  Electronic funds transfer instructions must include certain information about the origin of the transferred money.

  Providers of registrable designated remittance services or registrable remittance network services must be registered with the AUSTRAC CEO.

  Providers of registrable digital currency exchange services must be registered with the AUSTRAC CEO.

  Reporting entities must have and comply with anti - money laundering and counter - terrorism financing programs.

  Financial institutions are subject to restrictions in connection with entering into correspondent banking relationships.

  A reporting entity must carry out a procedure to verify a customer's identity before providing a designated service to the customer. However, in special cases, the procedure may be carried out after the provision of the designated service.

  Certain pre - commencement customers are subject to modified identification procedures.

  Certain low - risk services are subject to modified identification procedures.

  A reporting entity must carry out ongoing customer due diligence.

  A reporting entity must give the AUSTRAC CEO reports about suspicious matters.

  If a reporting entity provides a designated service that involves a threshold transaction, the reporting entity must give the AUSTRAC CEO a report about the transaction.

  If a person sends or receives an international funds transfer instruction, the person must give the AUSTRAC CEO a report about the instruction.

  A reporting entity may be required to give AML/CTF compliance reports to the AUSTRAC CEO.

  Providers of designated services must be entered on the Reporting Entities Roll.

  Cross - border movements of monetary instruments must be reported to the AUSTRAC CEO, a customs officer or a police officer if the total value moved is $10,000 or more.

  Electronic funds transfer instructions must include certain information about the origin of the transferred money.

  This Part provides for a tiered system of registration for providers of registrable remittance network services and providers of registrable designated remittance services.

  Division   2 sets out offences and civil penalties in relation to the provision of registrable remittance network services and registrable designated remittance services by persons who are not registered.

  Division   3 requires the AUSTRAC CEO to maintain the Remittance Sector Register and sets out the process of applying for registration.

  This Part provides for a system of registration for providers of digital currency exchange services.

  Division   2 sets out offences and civil penalties in relation to the provision of registrable digital currency exchange services by persons who are not registered.

  Division   3 requires the AUSTRAC CEO to maintain the Digital Currency Exchange Register and sets out the process of applying for registration.

  A reporting entity must have and comply with an anti - money laundering and counter - terrorism financing program.

  An anti - money laundering and counter - terrorism financing program is divided into Part A (general) and Part B (customer identification).

  Part A of an anti - money laundering and counter - terrorism financing program is designed to identify, mitigate and manage the risk a reporting entity may reasonably face that the provision by the reporting entity of designated services at or through a permanent establishment of the entity in Australia might (whether inadvertently or otherwise) involve or facilitate:

  (a)   money laundering; or

  (b)   financing of terrorism.

  Part B of an anti - money laundering and counter - terrorism financing program sets out the applicable customer identification procedures for customers of the reporting entity.

  A financial institution must not enter into a correspondent banking relationship with:

  (a)   a shell bank; or

  (b)   another financial institution that has a correspondent banking relationship with a shell bank; or

  (c)   another financial institution that permits its accounts to be used by a shell bank.

  A financial institution must carry out due diligence assessments before it enters into, and while it is in, a correspondent banking relationship with another financial institution involving a vostro account.

  The regulations may prohibit or regulate the entering into of transactions with residents of prescribed foreign countries.

  The AML/CTF Rules may provide that a reporting entity must make a record of a designated service. The reporting entity must retain the record for 7 years.

  If a customer of a reporting entity gives the reporting entity a document relating to the provision of a designated service, the reporting entity must retain the document for 7 years.

  A reporting entity must retain records relating to:

  (a)   applicable customer identification procedures it carries out or that it is taken to have carried out; and

  (b)   assessments it carries out of agreements or arrangements it has entered into relating to its reliance on applicable customer identification procedures, or other procedures, carried out by another person.

  A reporting entity must retain a copy of its anti - money laundering and counter - terrorism financing program.

  Except as permitted by this Act, an AUSTRAC entrusted person must not access, make a record of, authorise access to, disclose or otherwise use AUSTRAC information.

  A reporting entity must not disclose:

  (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.

  The AUSTRAC CEO may authorise officials of Commonwealth, State or Territory agencies to access AUSTRAC information for the purposes of performing the agency's functions and duties and exercising the agency's powers.

  In certain circumstances, AUSTRAC information may be disclosed to governments of foreign countries or to foreign agencies.

  There are restrictions on persons using or disclosing AUSTRAC information where the information was disclosed to the persons in contravention of this Part.

  It is an offence to:

  (a)   produce false or misleading information; or

  (b)   produce a false or misleading document; or

  (c)   forge a document for use in an applicable customer identification procedure; or

  (d)   provide or receive a designated service using a false customer name or customer anonymity; or

  (e)   structure a transaction to avoid a reporting obligation under this Act.

  An authorised officer may enter any reporting entity business premises:

  (a)   with the occupier's consent; or

  (b)   under a monitoring warrant.

  An authorised officer who enters any reporting entity business premises may exercise monitoring powers.

  The AUSTRAC CEO may require a reporting entity to carry out an external audit or a money laundering and terrorism financing risk assessment.

  An authorised officer may obtain information or documents.

  Pecuniary penalties are payable for contraventions of civil penalty provisions.

  Authorised officers, customs officers and police officers may issue infringement notices for unreported cross - border movements of monetary instruments.

  The AUSTRAC CEO is to monitor compliance by reporting entities with their obligations under this Act, the regulations and the AML/CTF Rules.

  The AUSTRAC CEO may give a remedial direction to a reporting entity that has contravened a civil penalty provision.

  The Federal Court may grant injunctions in relation to contraventions of civil penalty provisions.

  The AUSTRAC CEO may accept enforceable undertakings.

  Customs officers and police officers may exercise powers of questioning, search and arrest in connection with a cross - border movement of monetary instruments.

  AUSTRAC is continued in existence.

  There is to be a Chief Executive Officer of AUSTRAC.

  The AUSTRAC CEO's functions include the compilation and analysis of AUSTRAC information.

  The AUSTRAC CEO may arrange for the use of computer programs for any purposes for which the AUSTRAC CEO may take certain administrative action under this Act, the AML/CTF Rules or other instruments made under this Act.

  The AUSTRAC CEO may make AML/CTF Rules.

  This Part deals with the proof of matters that involve employees, agents etc.

  Certain decisions of delegates of the AUSTRAC CEO may be reviewed by the Administrative Appeals Tribunal following a process of internal reconsideration by the AUSTRAC CEO.

  Certain decisions of the AUSTRAC CEO may be reviewed by the Administrative Appeals Tribunal.

  Proceedings do not lie against a person in relation to anything done, or omitted to be done, in compliance, or in purported compliance, with a requirement under this Act, the regulations or the AML/CTF Rules.

  In proceedings for a contravention of this Act or the regulations, it is a defence if the defendant proves that the defendant took reasonable precautions, and exercised due diligence, to avoid the contravention.

  Partnerships, trusts and unincorporated associations are to be treated as persons for the purposes of this Act.

  This Act is not intended to affect the concurrent operation of State and Territory laws.

  This Act does not affect the law relating to legal professional privilege.

  A contravention of this Act does not affect the validity of any transaction.

  Provision is made in relation to the making of reports to the AUSTRAC CEO etc.

  Provision is made in relation to the performance of non - judicial functions by magistrates.

  This Act does not apply to a designated service specified in the AML/CTF Rules.

  The AUSTRAC CEO may exempt a person from this Act, or modify the application of this Act to a person.

  There is to be a review of the operation of this Act.

  The Governor - General may make regulations for the purposes of this Act.