Responding to an AUSTRAC information request

Identify the power used

An AUSTRAC information request can concern program documents, a reported matter or information relevant to another statutory function.

The legal power determines what can be required, from whom and by when. Read the notice before selecting a response process.

Source: Australian Government, Federal Register of Legislation: 26Q, 49, 49B and 167.

Different powers answer different questions

Section 26Q concerns documents required under section 26N, including AML/CTF program documentation. The notice specifies the response period.

Section 49 concerns further information or documents connected with specified reports. Named authorities and relevant investigating officers can use this power.

Section 49B concerns information or documents that may assist the AUSTRAC CEO’s specified intelligence functions. It requires a reasonable belief about knowledge, possession or control.

Section 167 allows an authorised officer to obtain information or documents relevant to specified offence or civil penalty provisions. It has its own conditions.

Source: Australian Government, Federal Register of Legislation: 26Q(1); 49(1)-(1A); 49B(1)-(3); 167(1)-(2).

Use the deadline in the notice

Section 49 generally specifies at least 14 days. That minimum does not apply to the reporting entity that supplied the specified report information.

It also permits a shorter period where the issuer considers it necessary and the shorter period is reasonable.

Section 49B generally specifies at least 14 days. A shorter period requires the AUSTRAC CEO to consider it necessary and reasonable in the circumstances.

Do not transfer these minimum-period rules to section 26Q or 167. A request for clarification does not itself change the stated deadline.

Source: Australian Government, Federal Register of Legislation: 49(1B); 49B(4); 26Q(1)-(2); 167(2)-(3A).

Separate privilege from ordinary confidentiality

Section 242 preserves the right to withhold information or documents protected by legal professional privilege.

Sections 26Q, 49, 49B and 167 also impose LPP-form duties where their reasonable-belief conditions are met. The form is due within the specified period.

Assess responsive material and privilege before production. An ordinary confidentiality label does not establish privilege.

Sources: Australian Government, Federal Register of Legislation: 26Q(2A); 49(4); 49B(6A); 167(5); 242; Australian Securities and Investments Commission: Categories of LPP; particular situations.

Example: retrieve the requested version

In a fictional practice, a section 26Q notice requests program documents for a stated period. The current policy replaced the version used during that period.

The responsible person retrieves the relevant versions and approval evidence, assesses privilege and prepares the response within the stated period.

The practice records what it supplied. This example does not imply that sending the newest version answers every request.

Source: Australian Government, Federal Register of Legislation: 26Q; 26N; 116.