Communication of AUSTRAC information to a foreign country
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This policy sets out those matters which the AUSTRAC Chief Executive Officer (AUSTRAC CEO) will take into account when considering the communication of AUSTRAC information to a foreign government.
The AUSTRAC CEO must act in accordance with the provisions of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). Section 132 of that Act provides that the AUSTRAC CEO may communicate AUSTRAC information to a foreign government if he or she is satisfied that:
In broad terms, it is the practice of the AUSTRAC CEO to communicate AUSTRAC information under section 132 in the following circumstances:
A foreign government may request AUSTRAC information from, or spontaneously disseminate information to, the AUSTRAC CEO. Conversely, the AUSTRAC CEO may request information from, or spontaneously disseminate AUSTRAC information to, a foreign government.
AUSTRAC's knowledge of its FIU and regulatory counterparts is comprehensive and is developed through its membership of FATF and the Egmont Group and other bilateral and multilateral interactions.
This policy establishes a framework to guide the AUSTRAC CEO when assessing requests from a foreign government for AUSTRAC information.
Section 5 of the AML/CTF Act defines 'AUSTRAC information' as follows:
The term AUSTRAC information is primarily used in Part 11 - Secrecy and Access of the AML/CTF Act. It includes not only information received by the AUSTRAC CEO under the AML/CTF Act or any other Commonwealth, State or Territory law, but also AUSTRAC's compilation and analysis of any information received. Public information or information from public sources received by the AUSTRAC CEO does not become subject to secrecy, but rather, the analysis by AUSTRAC of such information is subject to secrecy.
The term 'eligible collected information' means information obtained by the AUSTRAC CEO under the AML/CTF Act or any other Commonwealth, State or Territory law or from a government body. It also includes information obtained by AUSTRAC under Part 13, 14 or 15 of the AML/CTF Act. Examples of the latter types of information include information obtained during inspections of premises by authorised AUSTRAC officers, from external audit reports of reporting entities' ML/TF risks which are submitted to AUSTRAC and information obtained by police or customs officers under the enforcement provisions of the AML/CTF Act.
In deciding whether to authorise a disclosure, the AUSTRAC CEO will be guided by his/her functions as detailed in section 212 of the AML/CTF Act and the general objects of the Act.
The objects of the AML/CTF Act are stated in subsection 3(1), and include:
The functions of the AUSTRAC CEO as set out in section 212(1) of the AML/CTF Act include:
Section 212(3) requires the AUSTRAC CEO to have regard to the following matters in performing his functions:
Section 132 of the AML/CTF Act does not specify the foreign governments to which the AUSTRAC CEO may disclose AUSTRAC information.. The AUSTRAC CEO will only make a disclosure of AUSTRAC information where the undertakings required under section 132(1) have been given in writing by an appropriate official of the relevant foreign government.
These undertakings are set out in the AUSTRAC information exchange instruments and address the following:
An information exchange instrument may take various forms, such as a memorandum of understanding or an exchange of letters. An information exchange instrument may also contain obligations imposed by AUSTRAC in addition to those prescribed by subsection 132(1). These additional obligations may cover such matters as security, integrity, privacy and protocols for communicating AUSTRAC information. Information exchange instruments are entered into in good faith and are not legally binding.
AUSTRAC applies the same due diligence processes for information exchange instruments whether they relate to foreign FIUs, regulatory agencies or other government bodies. These information exchange instruments are negotiated in accordance with the procedures developed by AUSTRAC.
AUSTRAC enters into a separate information exchange instrument with each foreign government agency which seeks access to AUSTRAC information. By way of an example, where a foreign government's AML/CTF regulator and FIU are separate bodies, each of these agencies must enter into an exchange instrument in their own right.
Requests by foreign FIUs on behalf of another agency from the same country
From time-to-time, AUSTRAC is requested by a foreign FIU to communicate AUSTRAC information for the purposes of releasing it to another foreign agency from the same country (for example, a law enforcement or national security agency) which is not a party, in its own right, to an information exchange instruments with AUSTRAC.
In such cases, AUSTRAC information is communicated in the first instance to the requesting FIU. A subsequent disclosure from that FIU to another agency can only take place in accordance with conditions imposed by the AUSTRAC CEO.
The conditions that may be imposed by the AUSTRAC CEO include the requirement to:
Requests where no information exchange instrument is in place
The AUSTRAC CEO cannot communicate AUSTRAC information to a foreign government unless he/she is satisfied that the undertakings required in subsection 132(1) have been provided. It is AUSTRAC's preferred position that an information exchange instrument has been entered into prior to consideration of any requests for AUSTRAC information.
On occasion, the AUSTRAC CEO may receive an urgent request for AUSTRAC information in circumstances where no information exchange instrument is in place. Depending on the nature and urgency of such a request, it is referred to AUSTRAC's internal governance committees or an Executive General Manager for the purposes of assessment and making a recommendation to the AUSTRAC CEO about the request.
Before providing information in response to an urgent request, an appropriate official of the foreign government must provide, in writing on behalf of that government, the undertakings prescribed at subsection 132(1).
The circumstances in which the AUSTRAC CEO will consider disclosing AUSTRAC information to a foreign government are as follows:
Information to be provided in support of a request by a foreign government for AUSTRAC information must include the following:
If the requesting foreign government agency is an Egmont Member, requests should be forwarded through the Egmont Secure Web; otherwise requests should be made in writing to the AUSTRAC CEO.
Set out below is a non-exhaustive list of questions which the AUSTRAC CEO may have regard to when considering a request for AUSTRAC information:
AUSTRAC CEO may seek further information
If necessary, the AUSTRAC CEO will request further information to assist in his or her determination of a request.
The AUSTRAC CEO may refuse a request for AUSTRAC information from a foreign government and the grounds for such refusal may include the following:
A spontaneous disclosure may arise where AUSTRAC information is identified by the AUSTRAC CEO as being of potential assistance to a foreign government in relation to money laundering, terrorist financing risks or other serious criminal matters. A spontaneous disclosure allows the AUSTRAC CEO to release the AUSTRAC information under certain circumstances in the absence of a formal request from the foreign government.
The circumstances for a spontaneous disclosure may arise because of the involvement of a particular country or foreign national in a transaction, or where it is already known that the subject of AUSTRAC information is a person or persons of interest to an FIU or a regulator.
For example, these circumstances may arise where a Suspicious Matter Report (SMR) is received by AUSTRAC that clearly identifies a person who is not a resident of Australia but may be involved in the conduct of illicit transaction activities. Once AUSTRAC has confirmed that no Australian law enforcement investigation can be compromised, the AUSTRAC CEO may decide to spontaneously disclose the SMR to the country of which the individual is a resident, subject to AUSTRAC having executed an information exchange instrument with the relevant agency in the foreign country.
Alternatively, an Australian law enforcement agency may be conducting an investigation in cooperation with its counterpart(s) in a foreign country. If AUSTRAC has entered into an information exchange instrument with that foreign country, the Australian law enforcement agency can request AUSTRAC to release AUSTRAC information directly relevant to the investigation.
Prior to agreeing to the release of AUSTRAC information, the AUSTRAC CEO will assess whether the proposed disclosure is sufficiently related to:
The AUSTRAC CEO may, on behalf of an agency designated under the AML/CTF Act, request a foreign government to provide specified information.
In making such requests, the AUSTRAC CEO will consider whether the request:
AUSTRAC may also communicate AUSTRAC information to a foreign government at the request of a designated agency. In determining such a request the AUSTRAC CEO will consider:
A designated agency is a term used in Part 11 - Secrecy and Access of the AML/CTF Act and deals with access by agencies to AUSTRAC information. The definition of a designated agency at section 5 prescribes various Federal, State and Territory agencies which are permitted access to AUSTRAC information in accordance with Part 11 of the AML/CTF Act.
In accordance with Australian privacy laws and AUSTRAC policy, the AUSTRAC CEO will not communicate AUSTRAC information which contains personal information unless:
Where a request is received from a foreign government which seeks personal information, the AUSTRAC CEO will consider:
AUSTRAC expects that a foreign government seeking AUSTRAC information will: