Author:By Dennis Miralis, criminal defence lawyer.
When will AUSTRAC information be disclosed to a foreign government?
- In response to a request for the purposes of intelligence gathering, an investigation or proposed investigation of offences or alleged offences involving money laundering, terrorism financing or other serious criminal activities.
- In response to a request for regulatory and compliance purposes.
- A spontaneous disclosure by the AUSTRAC CEO where the information may be of assistance to a foreign government in relation to money laundering, terrorist financing risks or other serious criminal matters.
- AUSTRAC is asked by a foreign government to provide additional information in support of a request which AUSTRAC itself has made.
What information is to be included in a request for AUSTRAC information?
- Details of the agency which is making the request and the foreign official who has authorised the request being made.
- A statement that the agency understands and accepts the conditions which must be satisfied before the AUSTRAC CEO can provide the requested information.
- A statement of the purpose and intended use of the AUSTRAC information.
- Specific details of the AUSTRAC information sought.
- Any other relevant information which may assist the AUSTRAC CEO in his/her deliberations.
What matters may the AUSTRAC CEO take into account when considering a request for information?
- Is the request consistent with the information exchange instrument?
- Does the request contain details of the intended use of the AUSTRAC information?
- Are there adequate details of the foreign government agency making the request?
- Has there been previous compliance by the requesting party with the provisions of the information exchange instrument?
- Does the request seek information concerning a person or a third party whose privacy may be compromised if the information is released?
- Could provision of the requested information have an adverse impact on Australia’s interests or that of an Australian business or individual?
On what grounds may the AUSTRAC CEO refuse a request for AUSTRAC information?
- The requesting agency has not given sufficient undertakings.
- The request is outside the parameters of the information exchange agreement.
- The request does not sufficiently relate to the investigation of money laundering, terrorism financing or related serious criminal activities.
- The request may contravene or conflict with Australian government policies, for example in relation to discrimination on the basis of gender, sexual orientation, race or religion.
- Release of the information may prejudice Australia’s security or national interests.
- Release of information may breach privacy and related issues.
- Release of the information may have an adverse impact on the interests of an Australian business or individual.
What is a spontaneous disclosure of AUSTRAC information?
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. It allows the AUSTRAC CEO to release the AUSTRAC information under certain circumstances in the absence of a formal request from the foreign government.
When will AUSTRAC request or disclose information on behalf of an Australia designated agency?
The AUSTRAC CEO will, on behalf of an Australian designated agency, request a foreign government to provide specified information if such a request:
- is in accordance with the terms and conditions of the Memorandum of Understanding between AUSTRAC and the designated agency;
- contains sufficient information to enable the foreign government to act on the request expeditiously and efficiently; and
- is consistent with the information exchange instrument with the relevant foreign government agency.
AUSTRAC may also communicate AUSTRAC information to a foreign government at the request of a designated agency and in determining such requests will consider:
- whether the request is consistent with the terms and conditions of the Memorandum of Understanding between AUSTRAC and the relevant designated agency; and
- whether the proposed disclosure is sufficiently related to:
- the investigation of money laundering, terrorism financing or related serious criminal activities; or
- the identification of serious breaches or alleged serious breaches relating to the compliance and regulatory obligations of a reporting entity that is a resident or has a legal presence in a foreign country; or
- whether the subject of the AUSTRAC information has previously been identified as being of relevance to the investigation of money laundering, terrorism financing or related serious criminal activities or breaches of the AML/CTF Act;
- the alleged nature of the activity or behaviour.
What is AUSTRAC’s policy in regards to the disclosure of private information?
The AUSTRAC CEO will not communicate AUSTRAC information which contains personal information unless:
- the information is already published or can be accessed from public record sources; or
- there is a specific request for personal information and the AUSTRAC CEO is satisfied that there is sufficient nexus between the request and the intended use of that information.
How can Nyman Gibson Miralis help you?
The investigation and prosecution of money laundering has become a global phenomenon whereby law enforcement agencies routinely share information in order to assist other jurisdictions. This has been in response to globalisation and the digital revolution which allows money to be transferred more quickly than ever before. However the sharing of information or misinformation- to foreign states that do not abide by the rule of law or do not have the same legal system as Australia’s raises considerable complexity for those being investigated. Their rights may be prejudiced and they may have little recourse to having information that is incorrect being rectified. They face extradition and the possibility of forms of double punishment.
Nyman Gibson Miralis has expertise in international money laundering investigations and has provided strategic advice and representation to those who are being investigated and prosecuted whether in Australia alone or in multiple jurisdictions where there may be parallel investigations including the USA, Britain, the EU, China, Hong Kong, Singapore, South Korea, Russia and Cyprus.
This is an area of law that requires the expertise of international criminal lawyers .