David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

Just so that senators are clear with the way the legislative framework operates, we have defined designated agencies, and there are (a) through (x) of them, including, amongst others: the Australian Crime Commission, ASIO, the Australian Commission for Law Enforcement Integrity, the Australian Competition and Consumer Commission, the Customs Service, the Federal Police, the Prudential Regulation Authority, the Treasury Department, the New South Wales Crime Commission, the Crime and Misconduct Commission of Queensland, any state and territory royal commission, and so on. I have attempted to give a flavour by enumerating those agencies that may access AUSTRAC information.

Section 132 clearly sets out that the CEO may communicate AUSTRAC information to the government of a foreign country if he is satisfied that:

(a)

the government of the foreign country has given appropriate undertakings for:

(i)

protecting the confidentiality of the information; and

(ii)

controlling the use that will be made of it; and

(iii)

ensuring that the information will be used only for the purpose for which it is communicated to the government of the foreign country ...

We have to make an assumption here as to the integrity and veracity of the foreign government. They have given an undertaking that the information will be used only in accordance with what is required to access that information, so the CEO has a jurisdictional threshold question. It goes on:

(b)

it is appropriate, in all the circumstances of the case, to communicate the information to the government of the foreign country.

I respect the concerns of Senator Murray in this, but we must have the capacity to use the information to our benefit. We are confronted with the almost philosophical question of, ‘What if the country breaches its undertakings?’ That is just a circuitous nonargument that everything we do has to confront. Indeed, we have sought to put the obligation upon the CEO to make a thorough and detailed investigation weighing up what the request is for, how vital the information is and also the benefits to his system and the national interest. It goes on:

(2)

The AUSTRAC CEO may, in writing, authorise the Commissioner of the Australian Federal Police to have access to AUSTRAC information for the purposes of communicating the information to a foreign law enforcement agency under subsection (3).

You would say, ‘How is that going to work?’ The answer is:

(3)

The Commissioner of the Australian Federal Police may communicate AUSTRAC information to a foreign law enforcement agency if the Commissioner is satisfied that:

(a)

the foreign law enforcement agency has given appropriate undertakings for:

(i)

protecting the confidentiality of the information; and

(ii)

controlling the use that will be made of it; and

(iii)

ensuring that the information will be used only for the purpose for which it is communicated to the foreign law enforcement agency; and

(b)

it is appropriate, in all the circumstances of the case, to do so.

It strikes me that it would be very difficult to go any further in charging the commissioner and the CEO of AUSTRAC with a more clear duty to ensure that there is a nexus, there are undertakings and it is in the national interest to proceed with the dissemination of information to those agencies. We have said that the AFP Commissioner carries a similar burden. I think the framework, with respect, is very thorough, is robust and is in the national interest such that we can in terms of money laundering and counterterrorism go into parts of the world where we suspect money is flowing across our borders for the ill-gotten ends of money laundering and financing terrorism.