Immunity Curtailed – Changes to AML Act S169

Immunity curtailed under changes to AML Act S169. When you are providing information to AUSTRAC you might think you have immunity from prosecution under S169. Think again. This self-incrimination privilege has recently been severely curtailed.

Most, if not all, reporting entities under the AML Act want to do the right thing to assist AUSTRAC, and other law enforcement agencies, to fight financial crime. They are willing to provide information to assist these agencies in their work. The AML act provides several mechanisms for AUSTAC and partner agencies to request information from reporting entities – notably sections 49, 50, and 167. This article deals with section 167 and the immunity from self-incrimination under section 169.

AML ACT SECTION 167

Section 167 allows an authorised officer to request information and documents from a reporting entity, or an officer or employee of reporting entity. The section 167 notice must be in writing. Person commits an offence if they do not provide the information requested.

But what if the information requested, and then provided, incriminates the person or it might expose the person to a penalty? Can that information be used against the person in a prosecution?

AML Act Section 169

Until November 2015 information provided under a section 167 notice could not be used against the person other than for certain defined offences. Immunity against self incrimination under AML Act was wide. It protected reporting entities against prosecution, especially for regulatory type offences under the AML Act. It was widely understood that AUSTRAC did not like using section 167 notices due to the immunity under section 169. In fact, there are several instances of AUSTRAC using a section 202 notice, when a section 167 notice was more appropriate due, to the lower bar for immunity related to the section 202 notice.

Immunity Curtailed Changes to AML Act S169

However, since November 2015 the immunity against self incrimination under section 169 has been greatly curtailed. A minor amendment to the AML act contained in Schedule 10 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 now means that information provided by the reporting entity to AUSTRAC can be used in a wider range of prosecutions under the AML Act against that reporting entity. This should make a reporting entity think carefully about how and what information is provided under the request of 167 notice.

This rather innocuous change to section 169 has serious ramifications for reporting entities. This change has not been publicised by either the Attorney General's Department or AUSTRAC.

To keep your organisation's reputation you should be careful of how you respond to a section 167 notice. It may be wise to seek legal advice prior to responding.

Current (Post 26th November 2015) Section 169

169 Self-incrimination

1. A person is not excused from giving information or producing a document under section 167 on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.
2. However:
   1. the information given or the document produced; or giving the information or producing the document;
      is not admissible in evidence against the person:
   2. in civil proceedings other than:
   3. in civil proceedings other than:
      1. proceedings under this Act; or
      2. proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or
   4. in criminal proceedings other than:
      1. proceedings for an offence against this Act; or
      2. proceedings for an offence against the Criminal Code that relates to this Act.

Pre 26th November 2015 Section 169

169 Self-incrimination

1. A person is not excused from giving information or producing a document under section 167 on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.
2. However:
   1. the information given or the document produced; or
   2. giving the information or producing the document; is not admissible in evidence against the person:
   3. in civil proceedings other than proceedings under the Proceeds of Crime Act 2002 that relate to this Act; or
   4. in criminal proceedings other than:
      1. proceedings for an offence against subsection 167(3); or
      2. proceedings for an offence against section 136 or 137 that relates to this Part; or
      3. proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.