Exceptions to tipping off for SMR-related information
There are limited exceptions to the tipping off provisions.
Providing legal or financial advice to a client
If you are a reporting entity who is a legal practitioner or a qualified accountant, you are exempted from the tipping off offence in situations where:
- the information you are disclosing relates to the affairs of your customer or client
- you are disclosing the information to that customer or client, and
- the purpose of the disclosure is to discuss your concerns and dissuade them from committing tax evasion or a criminal offence.
In these circumstances, the nature of your discussions with your client should focus on their financial activities and how they could be breaking the law. You should try not to disclose to your client that you have submitted, or are required to submit, an SMR to AUSTRAC. Specifically disclosing that you have or will submit an SMR could compromise law enforcement investigations, even if the exception allows it.
Sharing information within a designated business group (DBG), corporate group, or remittance network
You can share information about an SMR you have reported, or are required to report, with other members of your designated business group (DBG) or corporate group provided:
- the information relates to the affairs of a person who is, or was, your customer, or makes inquiries about becoming your customer
- the information is disclosed for the purpose of informing other members of your DBG or corporate group about the risks involved in dealing with that customer
- the recipients are reporting entities in Australia or are regulated under equivalent AML/CTF laws in a foreign country, and
- the recipients have provided a written undertaking for:
- protecting the confidentiality of the information you disclose
- controlling the use of the information
- ensuring that the information will only be used for the purpose for which it is disclosed.
Registered remittance affiliates and their remittance network providers can disclose SMR information between each other; however, you cannot share SMR information with an affiliate or provider of another remittance network.
Engagement with law enforcement and regulatory agencies
If a law of the Commonwealth, a State or a Territory requires you to disclose that you have submitted, or are required to submit, an SMR to AUSTRAC, then you will not be breaching the tipping off prohibition by complying with the requirement of that law.
The tipping off offence also does not prevent you from sharing information with Australian law enforcement agencies on a voluntary or cooperative basis. You are permitted to disclose that you have submitted, or are required to submit, an SMR to AUSTRAC, including the information set out in that SMR, to an Australian government body that has responsibility for law enforcement, such as the Australian Federal Police (AFP), Australian Criminal Intelligence Commission (ACIC), a State or Territory police force, ASIC or APRA.
If in doubt about whether or not you are lawfully permitted to disclose SMRs or SMR related information in compliance with a law of the Commonwealth, State or Territory or to a government agency with law enforcement responsibility in the specific circumstances of your case, seek advice from AUSTRAC.
Disclosure to court or tribunal for purpose of AML/CTF Act or FTR Act
Disclosure to a court or tribunal, for example, in response to a subpoena, is permitted but only if the court or tribunal proceeding relates to a proceeding commenced under the AML/CTF Act or the FTR Act.
Regardless of whether or not the court or tribunal proceeding in relation to which you are compelled to disclose SMRs and SMR-related information was commenced under the AML/CTF Act or the FTR Act, you should always consult with AUSTRAC to seek advice before making any disclosure.
Additional exceptions include:
- requesting legal advice from a legal practitioner
- disclosure to a person who is appointed or engaged to audit or review your AML/CTF program
- authorised deposit-taking institutions (ADIs) disclosing customer information to an owner-managed branch of the ADI
- informing someone about the operation of counter-terrorism financing sanctions under Part 4 of the Charter of the United Nations Act. For example, you may inform law enforcement or the Department of Foreign Affairs and Trade (DFAT), which is responsible for the administration of Australia’s sanctions regime, about the freezing of assets, or explain to a customer why a transaction prohibited by counter-terrorism sanctions cannot be carried out.
Notices to produce information or documents and tipping off
You may receive a notice that requires you to provide more information or documents related to a threshold transaction report (TTR), a report about an international funds transfer instruction (IFTI), or an SMR submitted to AUSTRAC.
Certain prescribed agencies issue these notices for additional required information under section 49 of the AML/CTF Act. In this scenario, you must not disclose to anyone (except the following persons) any information about the notice or the information you have provided, or are required to provide in response to the notice.
- The AUSTRAC CEO, a member of the staff of AUSTRAC, a person who is engaged as a consultant by or seconded to AUSTRAC, or a member of a taskforce established by the AUSTRAC CEO.
- The person who issued the notice to you under section 49.
- Any other person who has also issued a notice under section 49 to you in connection with the same IFTI report, TTR or SMR.
Evidence related to SMRs and section 49 notices in courts or tribunals
If you have submitted an SMR to AUSTRAC, the following are not admissible in evidence in a court or tribunal proceedings:
- the SMR, a copy of the SMR, or a document purporting to set out information contained in the SMR
- whether or not a SMR was prepared
- whether or not a SMR was submitted to or received by the AUSTRAC CEO
- whether or not a document purporting to set out information contained in a SMR was given to or received by the AUSTRAC CEO
- whether or not particular information was contained in an SMR.
The only exception is if the proceedings are criminal proceedings for certain offences under the AML/CTF Act, criminal proceedings for an offence under sections 29 or 30 of the Financial Transaction Reports Act 1988, or civil penalty proceedings under the AML/CTF Act.
Notices issued under section 49 of the AML/CTF Act
If you have responded to a notice issued under section 49 and that notice related to an SMR, the information or documents you produced in response to that notice are also not admissible in evidence in any court or tribunal proceedings, unless the proceedings relate to criminal proceedings for certain offences under the AML/CTF Act, criminal proceedings for offences under sections 29 or 30 of the Financial Transaction Report Act 1988, or civil proceedings under the AML/CTF Act. You are also not permitted to give evidence relating to whether or not you produced information or documents in response to that notice.
You are also not permitted to admit into evidence, information relating to whether or not you produced information or documents in response to a section 49 notice relating to an SMR, or information relating to whether or not particular information was provided in response to a section 49 notice relating to an SMR.
- If the notice was issued in relation to a TTR or IFTI report, then the information or documents you produced in response to the section 49 notice can be admitted into evidence.
The content on this website is general and is not legal advice. Before you make a decision or take a particular action based on the content on this website, you should check its accuracy, completeness, currency and relevance for your purposes. You may wish to seek independent professional advice.