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Section 123 Anti-Money Laundering and Counter-Terrorism Financing Act
Tipping Off

Section 123 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 is Tipping Off and is extracted below.

For expert advice and outstanding representation from a criminal law firm with specialist experience defending clients suspected or charged under the AML & CTF Act, call Sydney Criminal Lawyers® today on (02) 9261 8881 and let our trusted, multi-award winning defence team help you.

The Legislation

Section 123 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 is Tipping Off and reads as follows:

Offence of tipping off

Prohibitions

(1) If:

(a) a suspicious matter reporting obligation arises or has arisen for a reporting entity in relation to a person; and

(b) the reporting entity has communicated information to the AUSTRAC CEO under subsection 41(2);

the reporting entity must not disclose to someone other than the AUSTRAC CEO or a member of the staff of AUSTRAC that the information has been communicated to the AUSTRAC CEO.

Note 1: For suspicious matter reporting obligation , see section 41.

Note 2: This subsection deals with the disclosure of information. It does not deal with the carrying out of applicable customer identification procedures.

(2) If:

(a) a suspicious matter reporting obligation arises or has arisen for a reporting entity in relation to a person; and

(b) either:
(i) the reporting entity has formed the applicable suspicion mentioned in subsection 41(1); or
(ii) the reporting entity has communicated information to the AUSTRAC CEO under subsection 41(2);

then:

(c) if subparagraph (b)(i) applies–the reporting entity must not disclose to someone other than the AUSTRAC CEO or a member of the staff of AUSTRAC:
(i) that the reporting entity has formed the applicable suspicion mentioned in subsection 41(1); or
(ii) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that the suspicion had been formed; and

(d) if subparagraph (b)(ii) applies–the reporting entity must not disclose to a person other than the AUSTRAC CEO or a member of the staff of AUSTRAC any other information from which the person to whom the information is disclosed could reasonably be expected to infer that information had been communicated to the AUSTRAC CEO under subsection 41(2).

Note 1: For suspicious matter reporting obligation , see section 41.

Note 2: This subsection deals with the disclosure of information. It does not deal with the carrying out of applicable customer identification procedures.

(3) If a reporting entity is required under subsection 49(1) to give information, or produce a document, to a person, the reporting entity must not disclose to anyone else:

(a) that the reporting entity is or has been required to do so; or

(b) that the information has been given or the document has been produced; or

(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that:
(i) the reporting entity had been required to give the first-mentioned information or produce the document; or
(ii) the first-mentioned information had been given; or
(iii) the document had been produced.

Exceptions

(4) Subsection (2) does not apply to the disclosure of information by a reporting entity if:

(a) the reporting entity is:
(i) a legal practitioner (however described); or
(ii) a partnership or company that carries on a business of using legal practitioners (however described) to supply professional legal services; or
(iii) a qualified accountant; or
(iv) a partnership or company that carries on a business of using qualified accountants to supply professional accountancy services; or
(v) a person specified in the AML/CTF Rules; and

(b) the information relates to the affairs of a customer of the reporting entity; and

(c) the disclosure is made for the purposes of dissuading the customer from engaging in conduct that constitutes, or could constitute:
(i) evasion of a taxation law; or
(ii) evasion of a law of a State or Territory that deals with taxation; or
(iii) an offence against a law of the Commonwealth or of a State or Territory.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

(5) Subsection (2) does not apply to the disclosure of information by a reporting entity if the disclosure is to a legal practitioner (however described) for the purpose of obtaining legal advice.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

(5A) A person to whom information has been disclosed under subsection (5) must not disclose the information to another person.

(6) Subsection (2) does not apply to the disclosure of information about the operation of Part 4 of the Charter of the United Nations Act 1945 .

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

(7) Subsection (2) does not apply to the disclosure of information by a reporting entity if:

(a) the reporting entity belongs to a designated business group or a corporate group; and

(c) the information relates to the affairs of a customer of the reporting entity; and

(d) the disclosure is made to another reporting entity that belongs to the designated business group or the corporate group (as the case may be); and

(e) the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the customer.

Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

(7AA) A reporting entity to whom information has been disclosed under subsection (7) must not disclose the information unless:

(a) the disclosure is made to another reporting entity that belongs to the designated business group or the corporate group (as the case may be); and

(b) the disclosure is made for the purpose of informing the other reporting entity about the risks involved in dealing with the customer.

(7A) Subsection (2) does not apply to the disclosure of information by a reporting entity if:

(a) the reporting entity is a registered remittance affiliate of a registered remittance network provider and the disclosure is made to the registered remittance network provider; or

(b) the reporting entity is a registered remittance network provider and the disclosure is made to a registered remittance affiliate of the registered remittance network provider.

(7B) A reporting entity to whom information has been disclosed under subsection (7A) must not disclose the information to another person.

(8) Subsection (2) does not apply to the disclosure of information by a reporting entity if:

(a) the reporting entity is an ADI; and

(b) the disclosure is to an owner-managed branch of the ADI.

(8A) A person to whom information has been disclosed under subsection (8) must not disclose the information to another person.

(9) Subsection (2) does not apply to the disclosure of information by a reporting entity if:

(a) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory; or

(b) the disclosure is to an Australian government body that has responsibility for law enforcement.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code ).

(10) Except where it is necessary to do so for the purposes of giving effect to this Act or the Financial Transaction Reports Act 1988 , a reporting entity is not to be required to disclose to a court or tribunal information mentioned in subsection (1), (2) or (3).

Offence

(11) A person commits an offence if:

(a) the person is subject to a requirement under subsection (1), (2), (3), (5A), (7AA), (7B) or (8A); and

(b) the person engages in conduct; and

(c) the person’s conduct breaches the requirement.

Penalty for contravention of this subsection: Imprisonment for 2 years or 120 penalty units, or both.

Definition

(12) In this Act:

“corporate group” means a group of 2 or more bodies corporate that are related to each other under section 50 of the Corporations Act 2001 .

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