Author: Nyman Gibson Miralis
Subject: Information Sharing
Keywords: AUSTRAC information sharing foreign governments, terrorism funding, money laundering.
The Australian Government’s financial crimes watchdog is the Australian Transaction Reports and Analysis Centre (AUSTRAC). Its purview as Australia’s Financial Intelligence Unit (FIU) is to obtain information and evidence to be able to prosecute and prevent serious crimes, particularly money laundering and terrorism funding.
Given the frequently transnational nature of such crimes, as well as the potentially global consequences, it is often essential for governments to share intelligence.
How does AUSTRAC ensure that relevant information is disseminated to, and received from, foreign governments?
The legal framework for AUSTRAC information sharing
AUSTRAC’s powers are set out in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Financial Transactions Reports Act 1988 (Cth).
These Acts set out the specific circumstances in which the CEO of AUSTRAC is entitled to receive or request information from foreign governments.
AUSTRAC’s Communication of AUSTRAC Information to a Foreign Country policy provides some further guidance as to how the information can be shared.
When might information be disseminated?
AUSTRAC prioritises the dissemination of information to international FIUs which are also members of the Egmont Group of Financial Intelligence Units, an organisation aimed at facilitating global cooperation to combat terrorism financing and money-laundering.
The most basic requirement is for the CEO to be satisfied, in accordance with section 132 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), that:
- The foreign government requesting the information has provided requisite undertakings as set out in section 132(1)(a) of the Act.
- It is appropriate to release the information in all the circumstances.
It’s also important to note that AUSTRAC can request the provision of information that it requires from foreign governments.
What factors are considered in determining appropriateness?
When considering the appropriateness of information release, the CEO is required to take into account such factors as:
- Australia’s domestic and international obligations to combat money laundering.
- Maintaining international relations.
- Maintaining the integrity of financial systems in Australia and worldwide.
- Reducing crime nationally and internationally.
- Fulfilling regulatory requirements but not imposing unnecessary and unrealistic burdens on reporting entities.
- Weighing up the risks of disseminating information vs. the “rewards.”
- Ensuring economic efficiency.
- Maintaining privacy of Australian businesses and individuals.
- Legal and ethical principles of competition.
Certainly AUSTRAC is not required to accede to requests for information sharing, and can elect to refuse to provide information in circumstances where it would conflict with Australia’s national interests.
How is the AUSTRAC information shared?
Generally, the foreign government must request information from AUSTRAC in order to:
- Assist with intelligence gathering or the provision of evidence for charges in relation to money laundering or similar crimes; or
- To ensure that relevant entities are duly complying with their regulatory obligations.
Alternatively, if AUSTRAC comes into possession of relevant information – for example, if law enforcement Authorities learn that there is a serious money laundering scam being run out of Australia affecting Greek citizens – it can volunteer information that it considers will be of assistance to Greece.
What happens once a determination is made?
Once a determination to release information has been made, a government official of the intended foreign recipient of the intelligence must provide several undertakings. These include:
- Maintaining information confidentiality.
- Controlling the use of the information.
- Using the information only for the intended purpose.
Additional undertakings may also be negotiated between the parties.
Once agreement has been reached, the negotiated terms must be recorded in an information exchange instrument – however this document is drafted in good faith only and therefore does not have any legally binding status.
With the advent of technological advances, crime is becoming increasingly transnational. In order to ensure that governments worldwide are able to crack down on and successfully investigate and prosecute crimes such as money laundering and terrorism funding, it is necessary for governments to share information as required. The Australian Government does share information through AUSTRAC, but there are a number of requirements that must be met before information is provided, in order to protect Australia’s national interest and the rights of Australian citizens.
Nyman Gibson Miralis specialise in all aspects of international and transnational criminal law. Our expertise includes dealing with the laws and processes surrounding anti-money laundering, bribery and corruption, extradition and mutual legal assistance (MLA), cybercrime, INTERPOL, international asset forfeiture and national security breaches. If you require assistance, contact one of our expert criminal defence lawyers