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Criminal Law Noticeboard March 2021 - AML/CTF Act amended

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The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) will be amended in the future by the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Act 2020 (Cth) (the Amending Act), which was assented to on 17 December 2020.  The amending Act was legislated in response to the Report on the Statutory Review of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 and Associated Rules and Regulations (Statutory Review Report) and will commence in two stages. The bulk of the amendments are due to commence by 17 June 2021 with the balance, being Pt 5 of Sch 1, due to commence within 18 months of Assent.

As outlined in the Explanatory Memorandum accompanying the Bill for the Amending Act, the legislation contains a range of measures to strengthen Australia’s capabilities to address money laundering and terrorism financing risks, and generate regulatory efficiencies, including amendments to:

  • expand the circumstances when reporting entities may rely on customer identification and verification procedures undertaken by a third party;
  • explicitly prohibit reporting entities from providing a designated service if customer identification procedures cannot be performed;
  • strengthen protections on correspondent banking by:
  • prohibiting financial institutions from entering into a correspondent banking relationship with another financial institution that permits its accounts to be used by a shell bank, and
  • requiring banks to conduct due diligence assessments before entering, and during, all correspondent banking relationships;
  • expand exceptions to the prohibition on tipping off to permit reporting entities to share suspicious matter reports (SMRs) and related information with external auditors, and foreign members of corporate and designated business groups;
  • provide a simplified and flexible framework for the use and disclosure of financial intelligence to better support combatting money laundering, terrorism financing and other serious crimes;
  • create a single reporting requirement for the cross-border movement of monetary instruments; and
  • address barriers to the successful prosecution of money laundering offences by:
  • clarifying that the existence of one Commonwealth constitutional connector is sufficient to establish an instrument of crime offence, and
  • deeming money or property provided by undercover law enforcement as part of a controlled operation to be the proceeds of crime for the purposes of prosecution.

The Amending Act also amends the Australian Federal Police Act 1979 (Cth), the Criminal Code Act 1995 (Cth), the Inspector‑General of Intelligence and Security Act 1986 (Cth), the Proceeds of Crime Act 2002 (Cth), and the Surveillance Devices Act 2004 (Cth).

It is usual for the Government to allow extended commencement of provisions which require changes to regulatory compliance. Accordingly, Mathew Leighton-Daly, author of our publication Financial Crime Control and Anti-Money Laundering, has made extensive annotations to the relevant provisions to be amended, to guide compliance with the new requirements. Subscribers are advised to keep watch for update 1 of 2021, due for publication by the beginning of April, which comprehensively addresses the amendments referred to above.

The Criminal Law Practice Area on Westlaw has many services that are designed to complement each other to provide the breadth of coverage of a single compendium but with the in-depth analysis that specific focus areas will allow. In addition, the Alert and the reports series will also enable practitioners to keep up to date with pertinent caselaw. When taken in its entirety, the Criminal Law Practice Area will furnish subscribers with a full picture of Criminal Law in the respective jurisdictions without the necessary restrictions of single services. The Criminal Law Noticeboard is specifically geared for specialists in the area and will deliver news items of interest and significance written and curated by in-house editors. To subscribe to the Criminal Law Practice Area on Westlaw, contact Thomson Reuters.
By Cassandra Siciliano
Senior Content Manager

Cassandra is an experienced Senior Content Manager in the Analytical Law Team at Thomson Reuters with a history of over 30 years working in the information services industry after leaving practice in the Banking sector. She holds a Bachelor of Law from Sydney University. In her years with Thomson Reuters, she has worked in many areas including writing for Industrial Relations and Anti-Money Laundering publications, undertaken extensive indexing training and work of both new and updated publications, commissioning across the Team’s portfolio and edited a wide range of works. Cassandra’s current portfolio includes publications within the anti-money laundering, banking and finance, insolvency and civil court practice areas within both the Queensland and Federal jurisdictions. Cassandra is also responsible for the compilation of the daily Alert24 newsletter which covers most practice areas of busy city and regional practices.

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