Commonwealth Consolidated Acts Commonwealth Consolidated Acts
Financial Transaction Reports Act 1988
1 Subsection 3(1)
Insert:
"bearer negotiable instrument" means a document that is:
(a) a bill of exchange; or
(b) a cheque; or
(c) a promissory note; or
(d) a traveller's cheque; or
(e) a money order, postal order or similar order; or
(f) a negotiable instrument not covered by any of the above paragraphs.
For the purposes of determining whether a document is covered by paragraph (e) or (f), it is immaterial that the document is incomplete because the document does not specify:
(g) an amount to be paid; or
(h) a payee.
2 Subsection 3(1)
Insert:
"bill of exchange" has the same meaning as in paragraph 51(xvi) of the Constitution, but does not include a cheque unless the cheque is a cheque that an ADI, bank or other institution draws on itself.
3 Subsection 3(1) (definition of non - reportable currency transfer )
Repeal the definition.
4 Subsection 3(1)
Insert:
"non-reportable transfer" , in relation to currency, means a transfer of currency out of Australia or into Australia in respect of which a report under section 15 is not required.
5 Subsection 3(1)
Insert:
"prescribed particulars" means particulars prescribed by the regulations for the purposes of sections 24E and 24F.
6 Subsection 3(1)
Insert:
"promissory note" has the same meaning as in paragraph 51(xvi) of the Constitution.
7 After section 3
Insert:
3A Translation of foreign currency to Australian currency
In determining, for the purposes of this Act, whether an amount of foreign currency (including an amount in which a bearer negotiable instrument or other document is denominated) is not less than an Australian dollar amount, the amount of foreign currency is to be translated to Australian currency at the exchange rate applicable at the relevant time.
8 Division 1A of Part II (heading)
Repeal the heading, substitute:
Division 1A -- Reports about transfers of currency and bearer negotiable instruments
9 At the end of Division 1A of Part II
Add:
15AA Reports in relation to bearer negotiable instruments taken into or out of Australia
(1) If, under section 33AA:
(a) a person produces to an officer a bearer negotiable instrument that the person has with him or her; or
(b) an officer conducts an examination or search and finds a bearer negotiable instrument with a person;
the officer may request the person to prepare a report for the Director.
(2) The report must:
(a) be in the approved form; and
(b) contain the reportable details in relation to the matter being reported; and
(c) be signed by the person giving the report.
(3) The report must be given to an officer as soon as possible after the request is made.
(4) A person commits an offence if:
(a) the person is requested to prepare a report; and
(b) the person:
(i) fails to comply with the request; or
(ii) fails to give the report as required by subsection (3).
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on an individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.
(5) The officer must, as soon as practicable after receiving the report, forward the report to the Director.
(6) In this section:
"officer" means:
(a) a police officer; or
(b) a customs officer.
"reportable details" , in relation to a matter being reported, means the details of the matter that are referred to in Schedule 3AA.
10 After Division 3 of Part II
Insert:
Division 3A -- Customer information to be included in international funds transfer instructions
17FA Customer information in international funds transfer instructions transmitted out of Australia
(1) If:
(a) a cash dealer in Australia is the sender of an international funds transfer instruction transmitted out of Australia; and
(b) at least one of the following applies:
(i) the cash dealer is acting on behalf of, or at the request of, another person who is not an ADI;
(ii) the cash dealer is not an ADI;
the instruction must also include customer information relating to the instruction.
Note: Failure to include the customer information relating to the instruction is an offence (see paragraph 28(1)(a)).
(2) For the purposes of this section:
(a) if a cash dealer transmits an instruction on behalf of, or at the request of, another person, the cash dealer is taken to be the sender of the instruction; and
(b) if a person, not being a cash dealer, transmits an instruction on behalf of, or at the request of, a cash dealer, the cash dealer is taken to be the sender of the instruction.
(3) In this section:
"customer information" , in relation to an international funds transfer instruction transmitted out of Australia, means the following information about the ordering customer on whose behalf, or at whose request, a cash dealer sends the instruction:
(a) the ordering customer's name and full business or residential address (not being a post office box);
(b) either:
(i) the number of the ordering customer's account with the cash dealer; or
(ii) if the customer does not have an account with the cash dealer--the identification code assigned to the instruction by the cash dealer.
"financial organisation" means an organisation that transmits, receives, handles or executes international funds transfer instructions.
"ordering customer" means a person or organisation (including a financial organisation) on whose behalf, or at whose request, an international funds transfer instruction is sent.
17FB Customer information in international funds transfer instructions transmitted into Australia
Application
(1) This section applies if:
(a) a cash dealer in Australia is the recipient of two or more international funds transfer instructions transmitted into Australia by a particular ordering organisation; and
(b) at least one of the international funds transfer instructions does not include customer information relating to the instruction.
Direction to cash dealer
(2) The Director may direct, in writing, the cash dealer to request the ordering organisation to include, in all future international funds transfer instructions the ordering organisation transmits to the cash dealer, customer information relating to the instructions. The direction must state that the cash dealer must comply with the direction within 14 days after the date of the direction.
Offence
(3) A person commits an offence if:
(a) the person is given a direction under subsection (2); and
(b) the person fails to comply with the direction within 14 days after the date of the direction.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
Report by cash dealer
(4) The cash dealer must report, in writing, to the Director on the ordering organisation's response, or lack of response, to the cash dealer's request within:
(a) 28 days after the date of the direction; or
(b) such further time as is allowed by the Director.
Note: Failure to report to the Director is an offence (see paragraph 28(1)(a)).
(5) To avoid doubt, a cash dealer may make available funds received from an international funds transfer instruction even if the instruction transmitted to the cash dealer did not include customer information relating to the instruction.
Definitions
(6) In this section:
"customer information" , in relation to an international funds transfer instruction transmitted into Australia, means the following information about the ordering customer on whose behalf, or at whose request, an ordering organisation sends the instruction:
(a) the ordering customer's name;
(b) any one of the following:
(i) the ordering customer's full business or residential address (not being a post office box);
(ii) the ordering customer's date and place of birth;
(iii) a unique identification number given to the ordering customer by a foreign government;
(iv) the identification number given to the ordering customer by the ordering organisation;
(c) either:
(i) the number of the ordering customer's account with the ordering organisation; or
(ii) if the ordering customer does not have an account with the ordering organisation--the identification code assigned to the instruction by the ordering organisation.
"financial organisation" means an organisation that transmits, receives, handles or executes international funds transfer instructions.
"ordering customer" means a person or organisation (including a financial organisation) on whose behalf, or at whose request, an international funds transfer instruction is sent.
"ordering organisation" , in relation to an international funds transfer instruction, means the financial organisation:
(a) that the ordering customer originally asked to send the instruction; or
(b) that initiated the sending of the instruction on its own behalf.
11 After Part IIIA
Insert:
Part IIIB -- Register of Providers of Remittance Services
24E Advice by certain cash dealers to the Director
(1) If a person carries on a business mentioned in subparagraph (k)(ib) or paragraph (l) of the definition of cash dealer , the person must advise the Director, in writing, of:
(a) the person's name and all prescribed particulars; and
(b) the fact that the person carries on such a business.
(2) A person commits an offence if:
(a) the person carries on a business mentioned in subparagraph (k)(ib) or paragraph (l) of the definition of cash dealer ; and
(b) the person fails to comply with subsection (1):
(i) if the person starts to carry on the business on or after the day on which this section commences--within 30 days of starting to carry on the business; and
(ii) in any other case--within 30 days after the day on which this section commences.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
24F Register of Providers of Remittance Services
(1) The Director must maintain a register, to be known as the Register of Providers of Remittance Services, in which the Director is to include:
(a) the names; and
(b) prescribed particulars;
of cash dealers who carry on a business mentioned in subparagraph (k)(ib) or paragraph (l) of the definition of cash dealer .
(2) The register may be maintained by electronic means.
Requirement to provide name and prescribed particulars
(3) For the purposes of ensuring that the register is accurate and complete, if:
(a) an authorised officer has reason to believe that a person carries on a business mentioned in subparagraph (k)(ib) or paragraph (l) of the definition of cash dealer ; and
(b) the Director does not have the name, and all prescribed particulars, of the person;
the authorised officer:
(c) may, either orally or in writing, require the person to give the authorised officer the person's name and all prescribed particulars; and
(d) if paragraph (c) applies--must, either orally or in writing, inform the person of the effect of subsection (4).
Offence
(4) A person commits an offence if:
(a) the person is required to give information under paragraph (3)(c); and
(b) the person fails to give the information within 14 days after the day on which the request for information is made.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
12 Paragraph 28(1)(a)
Omit "to the Director".
13 Subsection 29(1)
Omit "to the Director".
14 Paragraph 29(3)(a)
After "section 15", insert "or 15AA".
15 Paragraph 29(3)(a)
After "section 33", insert "or 33AA".
16 After paragraph 29(4)(b)
Insert:
(ba) causing a cash dealer to include customer information relating to an international funds transfer instruction under section 17FA that is false or misleading in a material particular; or
17 Subsection 30(1)
Omit "to the Director".
18 After section 33
Insert:
33AA Questioning and search powers in relation to bearer negotiable instruments
Officer may ask questions about bearer negotiable instruments
(1) Any person who is about to leave Australia must, if requested to do so by an officer:
(a) declare whether or not the person has with him or her any bearer negotiable instruments; and
(b) declare the amount payable under each bearer negotiable instrument that the person has with him or her; and
(c) produce to the officer each bearer negotiable instrument that the person has with him or her.
(2) Any person who arrives in Australia must, if requested to do so by an officer:
(a) declare whether or not the person has with him or her any bearer negotiable instruments; and
(b) declare the amount payable under each bearer negotiable instrument that the person has with him or her; and
(c) produce to the officer each bearer negotiable instrument that the person has with him or her.
Officer may copy bearer negotiable instruments
(3) If a person produces a bearer negotiable instrument to an officer, the officer may make a copy of the bearer negotiable instrument. Once copied, the officer must return the bearer negotiable instrument to the person.
Application of subsections (5) and (6)
(4) Subsections (5) and (6) apply only if:
(a) an officer has asked a person questions under subsection (1) or (2); and
(b) the officer has reasonable grounds to suspect that the person has made a declaration that is false or misleading (a false declaration ).
Officer may conduct searches
(5) The officer may, with such assistance as is reasonable and necessary, examine an article which the person has with him or her if the person:
(a) is about to leave Australia or has arrived in Australia; or
(b) is about to board or leave, or has boarded or left, any ship or aircraft;
for the purpose of finding out whether the person has with him or her any bearer negotiable instruments in respect of which a false declaration has been made.
(6) The officer may, with such assistance as is reasonable and necessary, search the person if:
(a) the person is about to leave Australia, or has arrived in Australia, or the person is about to board or leave, or has boarded or left, any ship or aircraft; and
(b) the officer has reasonable grounds to suspect that there is on the person, or in clothing being worn by the person, a bearer negotiable instrument in respect of which a false declaration has been made;
for the purpose of finding out whether the person has with him or her any such bearer negotiable instrument.
(7) A customs officer may only exercise the powers under subsection (6) if the customs officer is one in respect of whom a declaration under section 219ZA of the Customs Act 1901 is in force.
(8) A person must not be searched under subsection (6) except by a person of the same sex.
Officer may conduct searches on board a ship or aircraft
(9) The officer, and any person assisting the officer, may:
(a) board any ship or aircraft; or
(b) go onto or enter any prescribed place;
for the purpose of exercising the powers conferred by subsection (1), (2), (5), (6) or (10).
Officer may seize bearer negotiable instrument
(10) If, in the course of an examination or search under subsection (5) or (6), an officer finds a bearer negotiable instrument in respect of which a false declaration has been made, the officer may seize it.
(11) If a person produces a bearer negotiable instrument to an officer in respect of which a false declaration has been made, the officer may seize it.
Offence
(12) A person commits an offence if the person contravenes subsection (1) or (2).
Penalty: Imprisonment for one year.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose in respect of an offence an appropriate fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on an individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.
Definitions
(13) In this section:
"officer" and prescribed place have the same respective meanings as in section 33.
Note: The heading to section 33 is altered by adding at the end " in relation to currency ".
19 Subsection 33A(1)
After "section 15", insert "or 15AA".
20 Subsection 33A(5)
Repeal the subsection, substitute:
(5) In this section:
"offence against section 15 or 15AA" includes an offence against section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against section 15 or 15AA of this Act, as the case requires.
"officer" has the same meaning as in section 33.
21 After Schedule 3
Insert: