The Crimes and Other Legislation Amendment (Omnibus) Bill 2023 has been passed by both houses of Parliament to amend the Anti-Money Laundering and Counter-Terrorism Financing Act.
UPDATE: Royal Assent given on 13 September 2023.
Non-enrolment penalties increased
The amendments include strengthening and clarifying the civil penalty provisions for an entity that is required to enrol with AUSTRAC within 28 days of commencing to provide a designated service under the AML/CTF Act but fails to do so, to state that a separate contravention occurs each day that an entity fails to apply for enrolment and not just a single penalty. AUSTRAC is now able to issue infringement notices for each daily contravention. This will increase the penalties that apply for non-compliance with the enrolment obligation. The amendment also gives AUSTRAC the option of pursuing civil penalty proceedings for more serious and systemic contraventions.
The amendments clarify that a person who provides, or commences to provide, a designated service without applying to enrol within the 28 days, will have an ongoing obligation to enrol even after that 28-day period has ended, until the person either enrols or ceases to be a reporting entity. This will allow AUSTRAC to enforce compliance by issuing an infringement notice for each contravention in the preceding 12 months where a person fails to enrol after the enrolment deadline while continuing to provide a designated service, regardless of when the designated service was first provided.
An infringement notice for an enrolment contravention can be issued for the amount of 60 penalty units for a body corporate, or 12 penalty units for a person other than a body corporate. Where the pecuniary penalty is paid within 28 days of the notice being given, the reporting entity will not be liable to civil penalty proceedings in relation to that contravention.
Other amendments to the AML/CTF Act:
• clarify the existing secrecy and access framework to make it clear that sensitive AUSTRAC information obtained under specified provisions of the AML/CTF Act and the Financial Transaction Reports Act 1988 (FTR Act) cannot be inappropriately disclosed for the purposes of, or in connection with, court or tribunal proceedings, and
• explicitly authorise the AUSTRAC CEO to use a computer program (including automated programs), under their control, to automatically take an action, make a decision or exercise powers under the AML/CTF Act or the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1) (AML/CTF Rules), or assist with doing so.
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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.
