In 2015 the Financial Action Task Force (FATF) assessed the effectiveness of Australia’s Anti Money Laundering and Counter Terrorism Financing regime. The April 2015 report suggested more enforcement action. This may have prompted AUSTRAC’s investigation into the Commonwealth Bank.Read More
Anti-Money Laundering &
“AUSTRAC has done a good job in promoting compliance with the AML/CTF standards by the vast amount of entities under its supervision. … Australia should focus more on effective supervision and enforcement of individual reporting entities’ compliance with AML/CTF obligations within the various sectors.”
AMLCTF for reporting entities
Authorised Deposit-taking Institutions (ADIs) such as banks and building societies, and other financial institutions (for example casinos and money changers) are subject to a range of prudential and other regulation. Navigating the nuances of these provisions is a constant challenge for in-house counsel and external legal advisers.
One such nuance is in the interaction of ss 41 and 51 of the Anti-Money Laundering and Counter-Terrorism Financing (AMLCTF) Act 2006 (Cth) with the money laundering provisions found in Division 400 of the Criminal Code (Cth). I discuss it here.
AUSTRAC increasing enforcement action
AUSTRAC has been more aggressive in enforcing the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 since the release of the Financial Action Task Force report cited above. This has consequences for all reporting entities.
If you are the subject of AUSTRAC investigations it is important to get legal advice immediately. Many AMLCTF lawyers focus on compliance and management but may not have experience in responding to AUSTRAC investigations. Such AUSTRAC investigations may result in prosecution or civil penalty proceedings. Penalties extend to jail for directors and staff and even an unsuccessful prosecution can destroy a business.
My AMLCTF experience
I have acted for a number of reporting entities responding to AUSTRAC actions as well as criminal proceedings. In 2016/2017 I acted for three separate reporting entities who were each separately pursued by AUSTRAC. One was prosecuted for money laundering and the charge was dismissed on my no-case to answer submission. In another, as a result of my submissions, the Commonwealth Director of Public Prosecutions discontinued all charges against my client. In the third, after receiving my submissions, AUSTRAC decided not to pursue the matter.
The District Court judgment dismissing the money laundering prosecution brought against the director of the alternative remitter is available here.
I believe I am uniquely qualified to advise on the AMLCTF Act 2006 and related matters. As a Deputy Counsel with the Australian Federal Police I was a member of the national management team of the Australian Government’s Criminal Assets Confiscation Taskforce. The taskforce:
- is a formal collaboration between the Australian Taxation Office, the Australian Crime Commission and the Australian Federal Police
- works hand in hand with AUSTRAC to identify proceeds of crime, and then takes action to freeze and/or seize and restrain proceeds of crime (ie money that by definition is capable of being ‘laundered’) either under the Proceeds of Crime Act 2002 or taxation remedies.
I have 6 years’ experience in making rapid assessments on behalf of the Australian Government about whether given circumstances would justify a Court in finding that there was a reasonable suspicion that money is the proceeds of crime. As a delegate for 4 of those years I was responsible for deciding whether to apply to restrain (ie freeze) tainted property, and had authority to offer an undertaking as to damages on behalf of the Australian Government to secure such orders ex parte.
I am available to provide advice nationally to reporting entities (either via a firm of solicitors, or a direct brief from in-house counsel) on:
- the AMLCTF Act 2006,
- the Autonomous Sanctions Regulations 2011 and the Charter of the United Nations Act 1945, in relation to financial transactions with certain countries and politically exposed persons (PEPs), and
- related matters.
AMLCTF blog posts
Australia has recently undergone a Financial Action Task Force (FATF) evaluation. A recent Radio National program considers AUSTRAC’s emphasis on education rather than regulation and enforcement and analyses its effectiveness.Read More
In addition to civil penalties, failure to report a suspicious matter can also expose a reporting entity to a criminal prosecution for money laundering.Read More