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LESIGLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL
FINANCIAL TRANSACTION REPORTS
AMENDMENT BILL 2010
SERIAL NO. 101
EXPLANATORY STATEMENT
GENERAL OUTLINE
Financial institutions have been reporting suspicious transactions, threshold
transactions and international funds transfers to the Australian Transaction
Reports Analysis Centre (AUSTRAC) under the Financial Transaction Reports
Act 1988 (Cth). That Act has been superseded by the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and
Financial institutions now report under the latter Act.
The Northern Territory Financial Transaction Reports Act allows Police to
request further information from financial institutions regarding suspicious
transactions reported under the Financial Transaction Reports Act 1988 (Cth) to
AUSTRAC.
This Bill amends the Act to include the reports made under the 2006
Commonwealth Act.
NOTES ON CLAUSES
Clause 1.
Short title
This is a formal clause which provides for the citation of the Bill. The Bill when
passed may be cited as the Financial Transaction Reports Amendment Act 2010.
Clause 2.
Commencement
The Act will commence on the day fixed by the Administrator by notice in the
Gazette.
Clause 3.
Act amended
The Act amends the Financial Transaction Reports Act 1992.
Clause 4.
Amendment of long title
The long title is amended to include a reference to the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006 (Cth).
Clause 5.
Amendment of section 3 (Interpretation)
This clause omits the definition of Commonwealth Act. The definition is no
longer accurate as the NT Financial Transaction Reports Act (NT FTR Act) will
be referable to two Commonwealth Acts.
Subclause (2) inserts the term AMLCTF Act which is an acronym for the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and
the term FTR Act which is an acronym for the Financial Transaction Reports Act
1988 (Cth)
Also inserted is a definition of designated authority which means the
Commissioner of Police, or a police officer who is carrying out an investigation
arising from, or relating to matters referred to in, information communicated to the
AUSTRAC CEO.
Finally the reference to the “Commonwealth Act” in section 3(2) is omitted and
substituted by the ‘FTR Act or AMLCTF Act’
Clause 6. Repeal and substitution of sections 5, 6 and 7
This clause repeals the sections dealing with the old FTR Act and substitutes them
with new sections 5, 5A, 6, 6A and 7.
5
Further information about matters reported by cash dealers under the
FTR Act
New section 5 provides for the production of further information requested by a
designated authority from a cash dealer about a matter reported by the cash dealer
to AUSTRAC under the FTR Act. This information must be relevant to the
investigation or prosecution of a person for breaking a law of the territory, or
assist in enforcing the Criminal Property Forfeiture Act.
The provision retains the penalty for a person for non-compliance of 85 penalty
units or imprisonment for two years.
5A Further information or documents about matters reported by
reporting entities under AMLCTF Act
New section 5A provides for the production of further information or documents
requested by a designated authority from a reporting entity about a matter reported
by the reporting entity to AUSTRAC under the AMLCTF Act. The information
must be relevant to the investigation of, or the prosecution of a person for, an
offence against a law of the Territory or may be of assistance in the enforcement
of the Criminal Property Forfeiture Act. The provision is drafted to reflect section
49 of the AMLCTF Act.
This provision carries a maximum penalty for non-compliance by a person of 85
penalty units or imprisonment for two years.
A new section 6 provides for reports by cash dealers of suspect transactions not
reported under the FTR Act or the AMLFCTF Act. This applies if the cash dealer
has reasonable grounds to suspect information may be relevant to the investigation
of, or the prosecution of a person for, an offence against a law of the territory or
may be of assistance in the enforcement of the Criminal Property Forfeiture Act,
but is not required to report the transaction under the FTR Act or, if the cash
dealer is a reporting entity, under the AMLCTF Act. The cash dealer must as soon
as possible after forming the suspicion about the transaction, report the transaction
to the AUSTRAC CEO.
The section also provides for the form, content and method of communication of
the report.
A new section 6A provides for a designated authority to request further
information from reporting entities who have given information to AUSTRAC
under section 6. The further information must be relevant to the investigation of or
prosecution of a person for an offence against a law of the Territory or in the
enforcement of the Criminal Property Forfeiture Act.
A penalty of 85 penalty units or two years imprisonment applies for
non-compliance.
A new section 7 protects reporting entities and their employees or agents, from
proceedings against them for doing something that was required of them or that
they mistakenly thought was required of them by this Act. The section also
protects them from Money Laundering proceedings when reporting matters under
this Act, the FTR Act or the AMLCTF Act.
Entity is defined as a cash dealer or reporting entity.
6. Reports by cash dealers of suspect transactions not reported under FTR
Act or AMLCTF Act
New section 6 sets out the circumstances in which a cash dealer must prepare a
report of a transaction and communicate the information in the report to the
AUSTRAC CEO. The maximum penalty for non-compliance for a person is 85
penalty units and/or imprisonment for two years.
6A. Further information about suspect transactions not reported under FTR
Act or AMLCTF Act
New section 6A sets out the circumstances in which a designated authority might
require further information from a cash dealer after the cash dealer has prepared
a report under section 6(2) about a transaction.
The maximum penalty for non-compliance for a person is 85 penalty units and/or
imprisonment for two years.
7. Protection of cash dealers, reporting entities etc
New section 7 adds reporting entities etc to the protections afforded by this
section.
Subsection 2 deleted the reference to section 53 “possession property suspected of
being proceeds of crime” in the repealed Crimes (Forfeiture of Proceeds) Act and
replaces it with the money laundering sections, 231B and 231C, from the Criminal
Code.
Subsection 3 which provided that a cash dealer did not have to give information to
police if that information would tend to incriminate the dealer has been removed.
The provision is unnecessary and undermines the Act and the NT is the only
jurisdiction to have implemented the provision. The protections necessary already
exist in subsections 1 and 2.
Clause 7
Repeal and substitute of section 10
This clause repeals section 10 which was a transitional provision which does not
apply now that the relevant Commonwealth legislation has commenced operation.
Clause 7 also provides for new sections 10 and 11.
10 Law relating to professional privilege not affected
New section 10 declares the Act does not affect the law relating to legal
professional privilege. The clause is modeled on section 242 of the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006.
11. Transitional matters for Financial Transactions Reports Amendment Act
2010
Section 11 is a new transitional section declaring that section 12 of the
Interpretation Act applies to this Act.