Submission No. 7- Australian Transaction Reports and Analysis Centre


Parliamentary Joint Committee on the Australian Security Intelligence Organisation

Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999
Submissions

Submission No. 7- Australian Transaction Reports and Analysis Centre

AUSTRAC PO Box 5516W West Chatswood NSW 2057 Ph: (02) 9950 0055 Fax: (02) 9950 0073

Dear Secretary

Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999 SUBMISSION TO THE PARLIAMENTARY JOINT COMMITTEE ON THE AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION REVIEW OF THE AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION LEGLISATION AMENDMENT BILL 1999.

BACKGROUND

1.1 The Australian Transaction Reports and Analysis Centre (AUSTRAC) is a federal agency established under the Financial Transaction Reports Act 1988 ("FTR Act"). One object of the FTR Act is to facilitate the administration and enforcement of the laws of the Commonwealth and of the Territories. To achieve this object, AUSTRAC:

1.2 AUSTRAC is one of Australia's primary anti-money laundering and anti-tax evasion agencies, and has the following three roles:

 

1.3 The FTR information collected by AUSTRAC is used in two primary ways:

 

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ISSUES TO BE CONSIDERED BY THE INQUIRY 2.1 The Parliamentary Joint Committee on the Australian Security Intelligence Organisation (ASIO) has been asked by the Attorney General to review and report on the Australian Security Intelligence Organisation Leglisation Amendment Bill by the 8th May 1999. It is understood that there are no formal terms of reference for the review and that the Committee will be considering the purpose of the Bill and the likely effects of its provisions. As the Bill includes amendments to the FTR Act the Committee has invited AUSTRAC to make a written submission to the review explaining the origins, purpose and effect of the relevant amendments.

PURPOSE

3.1 AUSTRAC is aware from its involvement with its counterpart agencies overseas that, in a number of countries, financial transaction information is used by both national security and law enforcement agencies as an important indicator of criminal activities related to national security such as terrorism and espionage. For example, AUSTRAC has been advised that in a number of well-known terrorism incidents, substantial funds were sent to banks in the victim country to pay for the materials etc. used in subsequent acts of terrorism. AUSTRAC understands that financial transaction reports information could be used by ASIO as an intelligence source in relation to assessments where there are already some suspicions about a particular person in relation to a matter of national security. AUSTRAC understands that such information might also be an important source of intelligence and investigative leads in any subsequent police investigations relating to criminal offences.

4. CURRENT ACCESS TO FTR INFORMATION

4.2 In addition, the FTR Act gives the Commissioner of Taxation access to FTR information. It is to be noted that although the Commissioner of Taxation is statutorily entitled to access to FTR information, access by the Commissioner is subject to the MOU between the Director and the Commissioner.

4.3 AUSTRAC has a Memorandum of Understanding (MOU) with each of the above agencies in which access controls and arrangements are set out in some detail. A copy of a typical MOU is attached. (Attachment A).

4.4 It is to be noted that the above agencies, which presently have access to the FTR information, vary considerably in their needs. To this end, although the statutory regime provides for access to FTR information at the Director's discretion, the arrangements regarding the precise terms and conditions upon which information is accessed are set out in the MOU with each agency. The MOU cover issues such as:

 

5. EFFECT OF THE AMENDMENTS ON AUSTRAC'S OPERATIONS

5.1 AUSTRAC cannot comment on the effects of the amendments other than in relation to its impact upon AUSTRAC.

5.2 In this regard, AUSTRAC does not anticipate that ASIO would be seeking access to FTR information frequently. However, the arrangements which have been tentatively agreed to between the Director and the Director-General and the Inspector-General to ensure proper usage and controls would add to AUSTRAC's administrative workload in a much more significant way than would the addition of another law enforcement partner agency because of the comprehensive nature of the measures which are proposed, the details of which are also set out under. (see part 6).

6. PROPOSED ACCESS BY ASIO TO FTR INFORMATION

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MOU between AUSTRAC and ASIO

6.4 A draft MOU has been negotiated between the Director and the Director-General, which includes strict provisions for control of the use of FTR information (Attachment B). It addresses privacy and security requirements. The main terms of the draft MOU are set out under:

Privacy

6.5 Issues regarding "Privacy" are set out in clauses 17 to 23 of the MOU as follows:

(i) a police officer for the purposes or in connection with the performance of that officer's duties in relation to ASIO;

(ii) an IGIS officer for the purposes of or in connection with the performance of that officer's duties in relation to ASIO;

(iii) another ASIO officer for the purpose of or in connection with, the performance of that officer's duties.

(a) any domestic agency not listed in clause 25 of the draft MOU; or

(b) any foreign agency.

(b) a unique User Password

(a) loss, unauthorised access, unauthorised disclosure; and

(b) modification or other misuse.

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Accountability and Feedback

6.6 Accountability and feedback are dealt with in the draft MOU as follows:

(a) the Director will liaise with the Inspector-General as to ASIO's compliance with the FTR Act and the MOU;

(b) it is a condition of the continuation of the MOU that the Inspector- General provides to the Attorney General for dissemination to the Director an annual compliance statement confirming ASIO's compliance with the Attorney General's Guidelines, the FTR and the MOU. The first compliance statement is to be provided on the first occasion after the MOU becomes operative when the Inspector-General provides an annual report to the Attorney-General. Further, the Director-General agrees to facilitate the liaison arrangement referred to in paragraph (a).

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Suspect Transaction Reports

6.7 Suspect Transaction Reports are treated differently to other FTR information because of the element of judgement involved on the part of a cash dealer in deciding to lodge such a report with the Director. For that reason, special arrangements have been developed to deal with their usage by all receiving agencies. The draft MOU provides as follows:

6.8 As with other FTR information, such reports can only be accessed by searching on a particular name or names. There will be no capability to search and obtain these reports en masse, except if a particular reason to do so is established. The relevant provisions of the MOU will come into play.

General

6.9 In addition, the following general provisions are contained in the draft MOU:

Role of Inspector-General

6.11 In addition to the constraints placed upon ASIO in the use of FTR information as outlined above, the draft Bill provides for an oversighting role to be undertaken by the Inspector-General. Under the terms of the draft Bill the Inspector-General will monitor compliance by ASIO with; 6.12 Discussions on the arrangements have been held with both the current Inspector-General and his predecessor. A draft MOU has been prepared between the Director and the Inspector-General to deal with certain matters in relation to the Inspector-General's functions in oversighting ASIO's use of FTR information. A copy of the draft MOU is attached for the Committee's information.(Attachment C). The major terms of the MOU are as follows:

(a) to another IGIS officer, for the purposes of or in connection with the

performance of that IGIS officer's duties in relation to ASIO or

employees of ASIO; or

(b). in a manner that does not identify a person to whom the information

relates, in a report under Division 4 Part 2 of the IGIS Act in relation to

ASIO or employees of ASIO

6.9 Continued access by the ASIO will be dependent upon the Inspector-General giving ASIO a "clean bill of health" each year. Discussions between the Director and the Inspector-General are continuing to finalise the MOU. We would welcome any comments by this Committee.

 

7.1 When AUSTRAC was advised that there was a proposal to allow access to FTR information to ASIO the Director sought approval from the Attorney-General to consult on a confidential basis with some key interested parties within the financial sector, privacy and civil liberties groups. AUSTRAC was advised on the 4th September 1997 that approval had been given to do this. AUSTRAC arranged for special meetings of the AUSTRAC Privacy Committee, (APC) and its Provider Advisory Group (PAG) to be convened.

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7.2 By way of background, the PAG is a consultative body comprising financial sector representatives and AUSTRAC staff, which, meets regularly to discuss issues regarding implementation of the FTR Act.

7.3 A special PAG meeting was convened on the 25th September 1997 and was attended by representatives from the following organisations:

7.4 In addition, invited representatives of the Australian Association of Permanent Building Society and the ANZ Bank, who did not attend the meeting, were consulted on a bilateral basis.
7.6 The organisations represented at the special meeting of the APC on 25th September 1997 were:

Provider Advisory Group (PAG)

7.8 The PAG did not oppose access by ASIO to FTR information as a matter of principle but advised three main areas of concern:

(a) they questioned whether ASIO required access to undertake its activities. They asked whether there were not already existing avenues for ASIO to obtain financial information, for example through the Australian Federal Police. AUSTRAC responded, that it understood FTR information was being sought in relation to ASIO's assessment process and that this occurs prior to any referral to the Australian Federal Police, when appropriate, regarding the investigation of possible criminal offences.

(b) they advocated that there should be strict controls on the access and usage of FTR information. AUSTRAC advised that these issues would be covered in an MOU between the Director and the Director-General and the arrangement would be oversighted by the Inspector-General.

(c) they also raised the issue of protection of cash dealer and, in particular, front line teller staff who might instigate a Suspect Transaction Report. In response, AUSTRAC indicated that we had anticipated their concerns and that our discussions with ASIO had included discussions for any follow up contacts in relation to Suspect Transaction Reports to be made through AUSTRAC. They were very comfortable with this approach and said that they prefer to have some sort of "firewall" between them and ASIO.

7.9 As PAG members had not been advised of the identity of the proposed new user prior to the meeting, they sought approval to discuss the proposal with a limited number of key senior persons. The attendees indicated that were perhaps one or two people in their organisations who should be consulted and assured these people could be trusted to deal with the matter confidentially. AUSTRAC indicated that the Attorney-General had given the Director approval to consult and AUSTRAC agreed that they could consult with key people on a confidential basis. No further advice was received as a result of this.

AUSTRAC Privacy Committee (APC)

7.10 Generally, the APC were not so amenable to the proposal as the PAG members. The representatives of privacy and civil liberties groups were seriously concerned about the extension of the FTR Act to ASIO. Their concerns related to the extension of the FTR Act regime beyond its original use for law enforcement and revenue purposes as well as concerns that a national security agency such as ASIO would be given access to such confidential financial information. They were concerned to ensure that, if access was to be granted, FTR information must not be used in any kind of "fishing expedition" against members of the public.

7.13 Finally, again the members of the APC were concerned about the fact that the identity of the proposed new user had been kept confidential prior to this meeting and sought approval to consult with senior members of their organisations. This was agreed, as it was in accordance with the terms of the approval to consult which had been given by the Attorney-General. Little further material was provided as a result of this.

7.14 At the conclusion of each meeting AUSTRAC requested that any written comments be forwarded to AUSTRAC by the 30th September 1997 and undertook that all comments would be forwarded to the Attorney General's Department for inclusion in the submission to the Attorney General.

7.15 Details of the special meetings of the PAG and APC held on the 25th September 1997 received by AUSTRAC were forwarded to the Attorney General's Department on that same day. (Attachment D).

7.16 Subsequently written comments were received from the Privacy Commissioner's Office, the Victorian Council of Civil Liberties and the Australian Taxation Office. These written responses were forwarded to the Attorney General's Department on the 1st October 1997. (Attachment E ).Written comments were not received from any PAG members.

7.17 On the 10th October 1997 AUSTRAC wrote to all of the attendees of both meetings to thank them for attending the special meeting on the 25th September and advising that all comments had been forwarded to the Attorney-General's Department for consideration.

Further Consultations

7.18 On the 25th November 1997, AUSTRAC wrote to the members of the PAG to thank them for their consultation on this issue and advising them that the amending leglisation, which had been due to be tabled during the Spring Sittings of Parliament, had been delayed. Further, it was now likely that the leglisation would be tabled for the Autumn Sittings of the next year (1998) and they would be advised as information became available.

7.19 An APC meeting was convened at AUSTRAC offices in Sydney on the 12th March 1998. Included on that meeting's agenda was an update on the 'new user' to the effect that the proposal had been delayed. Further, AUSTRAC advised that the Privacy Commissioner had requested that a sunset clause be inserted in the leglisation and that this proposal had been forwarded to the Attorney-General's Department for consideration.

7.20 A further meeting of the APC was held at AUSTRAC's office on the 8th December 1998. An update on the ASIO issue was given, to the effect that the Election that delayed Parliamentary consideration of the matter and this would probably now be dealt with in the Autumn Session of 1999.

7.21 On the 22nd March 1999 AUSTRAC was advised by the Attorney-General's Department that the Australian Security Intelligence Organization Leglisation Amendment Bill would be introduced into the Parliament in that week. AUSTRAC were subsequently advised that the Bill had been dealt with by the House of Representatives on the 25th March 1999. On the 26th March 1999 AUSTRAC received copies of the Hansard, the Second Reading Speech to the Bill and a media release from the Attorney-General. The media release stated that certain amendments were proposed to the ASIO leglisation including a proposal to give access to records of financial transactions held by AUSTRAC.

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8. CONCLUSIONS

The Australian Transaction Reports and Analysis Centre (AUSTRAC) 23 April 1999