Legislation to Criminalise the Financing of Terrorism

On 11 September 2001 (9/11), the world
changed. The terrorist attack on the Twin Towers in the United States of America
cost approximately $US 500,000 and yet the effect on the world has been
exponential. Although many countries had lived with national security issues
for a long time, up until this point Australia had felt safe due to its
geographical isolation. However that feeling of security had been shattered. Following
the terrorist attack, Australia’s response was to enact a significant amount of
legislation, including laws to specifically criminalise terrorist activity.[1]
The question is, how effective have they been. Originally these anti-terror
laws were considered temporary, and were adopted quickly and often with minimal
consideration for the long-term effects. After 17 years it has become clear that
it is unlikely that the threat level will change for the better anytime in the
near future.

Prior to the Twin Towers, as a result of
the changing world, the Financial Action Taskforce on Money Laundering (FATF)
was established by the G-7[2]
Summit in 1989 to ‘examin[e] money laundering techniques and trends, reviewing
the action which had already been taken at a national or international level,
and setting out the measures that still needed to be taken to combat money
laundering’.[3] The
FATF developed nine special recommendations which included criminalising the
financing of terrorism and associated money laundering. These were used by
Australia to develop the counter-terrorism regime.

Since 2002 until 2016, Australia has enacted
54[4]
counter-terrorism laws in response to the perceived threat. A terrorist act is
now defined in section 100.1 of the Criminal
Code Act 1995 (Criminal Code) as an action, or threat of action, with the
intention of advancing a political, religious or ideological cause by coercing, by influencing by intimidation a
Government or country , or by intimidating
the public or a section of the public. This definition is important as it forms
the basis for all terrorist actions within the suite of legislation.    

One of the key areas of focus relates to counter-terrorism financing. The basic definition of counter-terrorism financing is the illegal smuggling of cash to terrorist organisations. Although it has similar attributes to money laundering, terrorist financing is not laundered because there is generally no criminal offence for getting the funds; that is, the money is not generally a proceed of crime. The crime focuses on the individual receiving the funds. Money laundering involves money generated from past criminal activity; terrorist funding is used for future criminal activity.[5] It is still difficult to separately quantify the two different types of funding, and it is considered that an estimate of the two may be somewhere between $3.5billion and $11.5billion annually in Australia.[6] However, it is easier to link this to money laundering than terrorism financing.   

The United Nations (UN) reacted swiftly to
the terrorist attack on the US, with UN Security Council Resolution 1373 (2001)
enacted to ensure that participation in the ‘financing, planning, preparation
or perpetration of terrorist acts or in supporting terrorist acts’ be
established as ‘serious criminal offences in domestic law’.[7]
It was adopted under Chapter VI of the UN Charter and is binding on Australia. These
Resolutions have formed the basis of and justification for the emerging legislation.

The Suppression
of the Financing of Terrorism Act 2002 (SFTA) was made to amend the Criminal
Code, the Financial Transaction
Reports Act 1988 (FTRA), the Mutual
Assistance in Criminal Matters Act 1987 and the Charter of the United Nations Act 1945,
for purposes related to terrorism. The SFTA was adopted to meet Australia’s
international legal obligations under the UN Resolutions.

The most important change was the creation
of Part 5.3 which was inserted into the Criminal Code by the Security Legislation Amendment (Terrorism)
Act 2002 (Cth) in 2002. This Part contained 14 new counter-terrorism
offences.  The offence of financing
terrorism was included in Division 103 of the Criminal Code and made the
provision of funds to, or the collection of funds by, or on behalf of, a
terrorist or terrorist organisation a criminal offence. However, the FATF did
not believe Australia had gone far enough to ensure compliance with the UN
Resolutions, and recommended that Australia ‘specifically criminalise the
collection or provision of funds for an individual terrorist, as well as the
collection of funds for a terrorist organisation’.[8]
  

Criminalising the financing of terrorism

As outlined above, Australian’s first
reaction was the amendment of the Criminal Code in 2002 to include the offence of
financing terrorism. The sections are read very broadly, and have wide reaching
outcomes. The offences do not require a terrorist act to even occur or the
funds used for that specific purpose. Section 103.1 only requires a person to
be reckless as to whether the fund will be used to facilitate or engage in a
terrorist act. A person commits an offence under sections 103.1 and 103.2 if
that person donates funds to another person and is reckless as to whether the
other person will use them to commit a terrorist act. However it fails to cover
forgiveness of a debt, contracts of sale or testamentary gifts.

The amendments to the legislation are important
as Part 5.3 can apply to conduct that occurs outside of Australia, whereas most
Australian legislation does not have extra-territoriality. A perfect example of
this was the Bali Bombings in October 2002. As there were 88 Australians who
were killed in that terrorist act, irrespective of the fact that it occurred
overseas by non-Australians, the terrorists could have been tried in Australia
under this Part.

The Australian Federal Police Terrorism
Financing Investigations Unit was developed in 2011 to focus on terrorism
financing offences. However, to date, only a handful of terrorists have been
convicted under Part 5.3 which can be linked to both the complexity of the
various relevant legislations and lack of understanding by both the enforcement
agencies and juries.[9]

These changes show just how far the
counter-terrorism legislation has moved. Whether they have been effective is
questionable though. Therefore Australia took further measure and introduced
legislation to counter terrorist financing more directly.

Australian Transaction Reports and Analysis Centre

The Australian Transaction Reports and
Analysis Centre (AUSTRAC) was established in 1989 and is ‘Australia’s financial
intelligence agency with regulatory responsibility for anti-money laundering
and counter-terrorism financing’. AUSTRAC is the regulator of the Anti-Money
Laundering and Counter- Terrorism Financing Act 2006 (Cth) (AML/CTF Act) through monitoring compliance with the legislation and
taking enforcement action for breaches of the Act. Accordingly, AUSTRAC has
dual roles – regulatory and enforcement. AUSTRAC has a Financial Intelligence
Unit to detect, prevent, investigate and prosecute. It analyses financial
transaction information to identify patterns of suspicious activity and
contribute to law enforcement operations. The two roles work interactively to
achieve the goals of the agency. AUSTRAC has the lead role in ensuring the
objects of the AML/CTF Act are met.

Anti-Money Laundering and Counter- Terrorism Financing Act

In 2006 the  AML/CTF Act was
introduced to prevent money laundering and the financing of terrorism by
imposing a number of obligations on the financial sector, gambling sector,
remittance (money transfer) services, bullion dealers and other professionals
or businesses (known as ‘reporting entities’) that provide particular services
(known as ‘designated services’). These obligations include collecting and
verifying certain ‘know your customer’ (KYC) information about a customer’s
identity when providing those services.[10]
The Act was drafted to largely replace the FTRA and in doing so, expanded the
role of AUSTRAC to encompass a regulatory role.[11]

The explanatory memorandum (EM) for the Anti-Money Laundering and Counter- Terrorism
Financing Bill (the Bill) states that the Bill adopts a risk based approach to AML/CTF
compliance, under which principal obligations are set out, but businesses will
have flexibility to develop procedures according to different risks which they
identify using their own AML/CTF Programs. An EM is used to provide more detail
and is ‘A[]n executive document issued by a Minister explaining the aims
and operation of a statute. In statutory interpretation, if the meaning of a
provision in an Act is ambiguous or obscure, or the ordinary meaning conveyed by
the text of the provision taking into account its context in the Act leads to a
result that is manifestly absurd or unreasonable, reference may be made to
explanatory memoranda in order to ascertain the meaning of the provision’.[12]
Therefore the Bill is useful for establishing the goals and objectives of the
proposed Act.

The
objects of the Bill, which had bipartisan support, was to ensure that Australia
implements the most effective and proportionate measures to deter, detect and
disrupt money laundering and the financing of terrorism. It was also to fulfil
Australia’s international obligations and address matters of international
concern including the need to combat money laundering and terrorist financing.

Australia has a role in the international
community to attempt to tackle corruption, terrorism and serious and organised
crime. The objects of the AML/CTF
Act have been developed to achieve such goals. Further to this, Australia also
needs to promote public confidence in the Australian financial system. The
AML/CTF Act is comprehensive, and is to a large extent; appear to be meeting
the objectives of the Act.

Relevant Cases   

In the
four years to 2016, AUSTRAC purports that 28 cases of suspected terrorism
financing worth $5.6 million was found involving charities that funnel
donations overseas. And yet Australia has only undertaken several significant terrorism
funding investigations and secured three convictions
since the inception of the legislation under the Criminal Code. 

In November 2005, 13 men were charged with
terrorism offences under Part 5.3 of the Criminal Code.[13]
Three of the men were convicted for attempting to make funds available to a
terrorist organisation. The court found that they intended to do this by
selling parts from stolen cars and using the proceeds of sale for the purposes
of the organisation.

The most significant recent case in
relation to counter-terrorism recently has been the Chief Executive Officer of the Australian Transaction Reports and
Analysis Centre v Commonwealth Bank of Australia (CBA Case). The two
parties released a statement of agreed facts and admissions on 4 June 2018
rather than go to proceedings.

The Statement stated that in May 2012, CBA
introduced a new system called the Intelligent Deposit Machines (IDM). In 2014
CBA identified that they had suspicions that money-laundering was occurring
through its IDMs but did not take any action in relation to those suspicions. It
was not until CBA introduced daily limits on cash deposits through IDMs
commencing in November 2017 and completed by 12 April 2018 that CBA adopted
sufficient appropriate risk-based controls to mitigate and manage the money
laundering/terrorism financing risk posed by IDMs.[14]
The bank has admitted that they failed to report more than 53,000 transactions
made through their IDM. An investigation by AUSTRAC and state police
established that CBA contravened section 82(1) of the AML/CTF Act on 14
occasions. The Federal Court of Australia imposed a civil penalty of $700
million, the largest civil penalty in Australian corporate history. 

These cases highlight that although there
appears to be significant breaches of the AML/TF Act, it is taking a long time
to identify and prosecute, thereby arguably not meeting the objects of the Act
being, deter, detect or disrupt.

Impact on human rights

Although there are a number of human rights that are affected by targeting terrorist funding, such as freedom of speech and association, the right to property, and the right to travel, it is generally considered that the purpose of the legislation overrides the suppression of human rights. However when such action is perceived as failing to incorporate adequate human rights protections, it can undermine the effectiveness and credibility of the legislation. To counter this perception, a statement of compatibility must be prepared for each Bill for an Act proposed to the House of the Parliament in accordance with section 8 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Australian Human Rights Commission (the Commission) expressed concern to the Senate Legal and Constitutional Affairs Committee on the Bill believing it would lead to discrimination by financial institutions based on race, religion and nationality. The Commission argued that an Independent Reviewer of Terrorism Laws should be established to consider human rights impacts of laws relating to terrorist acts. 

One method to ensure the protection of
human rights, amongst other things, was the creation of the role of the
Independent National Security Legislation Monitor (INSLM). The INSLM ‘independently
reviews the operation, effectiveness and implications of national security and
counter-terrorism laws; and considers whether the laws contain appropriate
protections for individual rights, remain proportionate to terrorism or
national security threats, and remain necessary’.[15]
The role includes reviewing specified legislation, as well as ‘any other law of
the Commonwealth to the extent that it relates to Australia’s counter terrorism
and national security legislation.[16]

In the 2013 annual report the INSLM
reviewed the efficacy of the terrorism financing laws.[17]
It stated:

‘The INSLM’s
review found the effectiveness of the laws, especially with regard to their
preventive and deterrent purpose, to be compromised by the difficulties of
proof associated with prosecuting terrorism financing offences. The relatively
light sentences imposed in the few cases where the offences have been
successfully prosecuted have not assisted in this regard’.[18]

INSLM went further and expressed concern
about the actual effectiveness of the terrorism financing laws. 

Effectiveness of the counter-terrorism financing regimes

There is no evidence that the threat of terrorism
or likelihood of attacks has decreased due to the terrorism financing laws.[19]
Also, despite the high level of concern about terrorist financing, many people
are still not entirely sure what it is or how it works.

One argument discussed by INSLM is that any
conduct which could be considered terrorism financing can be addressed through
other extant legislation just as effectively, and so the laws as they stand
could be considered superfluous. Therefore the effectiveness of the regime is
skewed by the availability of other, often simpler legislation.

In 2008–09, 6,888 reports were made of
suspect matters and of these 29 related to financing of terrorism. However,
‘the most successful operations against terrorist financing have not come
through large or suspect transaction reports but rather from sound intelligence
work’.[20]
The Australian cases have all related to individuals supporting overseas
groups. Accordingly, it could be argued that the regimes for reporting as they
currently stand do not positively contribute to the disruption of terrorist
financing within Australia and it is only the international obligations that
are being met.

Information sharing is paramount to the
detection, disruption and denial to terrorists. One area of concern with the current
regime is the lack of understanding in relation to the application of the Privacy Act 1988 (Privacy Act) and
anti-terrorism laws. Private sector entities are confused about how much
information they can provide if they suspect an individual of involvement in
terrorism financing.[21]
The Privacy Act needs amending to clearly allow the transfer of personal
information to AUSTRAC without fear to enable the effective implementation of
the regime.

In 2015 the FATF conducted a review of
Australia’s measures that were in place as at August 2014.[22]
The report on the review concluded that the AML/CTF regime remained relevant
and appropriate, but determined that there is scope to strengthen the regime
and achieve greater regulatory efficiencies.

The AML/CTF Act itself requires some
adjusting to meet the objectives to detect, disrupt and deter terrorism financing.
The Act and Rules are complex, which creates uncertainty and impedes on the
industry’s ability to comply with the legislation. The legalistic style of the
legislation makes it difficult for small companies to understand which can lead
to inadvertent breaches. The industries require more support to ensure
compliance and consideration should be made for exemptions for those who are
considered low risk.  On top of that,
there are two regulatory regimes that are in effect, being the AML/CTF Act and
the FTRA with little perceived
gain. However, the FTRA obligations do not apply to a transaction to which the
AML/CTF Act applies. For example, a reporting entity might be a cash dealer
under the AML/CTF Act whilst also providing a general insurance service which
requires reporting under the FTR Act. This can be very confusing to industries,
particularly small businesses.

The FATF noted in 2015 that ‘Australia does
not have a developed national policy setting out what the overall AML/CTF
system is meant to achieve, or how its success should be monitored or measured,
making it challenging to determine how well the ML/TF risks are being addressed’.[23]
This makes it particularly difficult in ascertaining whether the objectives of
the Act are being met. Conversely however, it could be argued that the lack of
evidence of counter-terrorism financing within Australia could indicate that it
is not occurring here.

Another
issue that is not addressed within the current regime is the evidence that many
terrorist activities are self-funded. The 2005 attacks on the London transport
system were self-funded with no external source of income.[24] The
cost of the attack was estimated at only £8,000 highlighting that tracking the
finances will not necessarily detect or deny many terrorist attacks. This is
also reflected in the number of individuals who are subject to an asset
freezing regime. In 2006, only one group was identified in Australia, and had a
total of $2,197 of assets frozen.[25]

It is important to note that Australia is
meeting the international obligations and cooperates well with other countries
through mutual assistance. Information is legally shared through both formal
and informal channels to provide their
international counterparts with the information they need to investigate and
prosecute money laundering offences, offences constituted by the financing of
terrorism, and other serious crimes.

Overall
the effectiveness of the regime is questionable; there is no evidence that terrorist
financing is occurring to be able to ascertain the effectiveness or even the
necessity of the counter-terrorism financing regime.

Amendments to the Legislation

The first changes to the AML/CTF Act have
recently occurred with the passing of the Anti-Money
Laundering and Counter-Terrorism Financing Amendment Act 2017 (AML/CTF
Amendment Act). The amendments were as a result of Report on the Statutory Review of the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006 and Associated Rules and Regulations (the Report). [26]

The amendment was adopted to strengthen
Australia’s capabilities to address money laundering and terrorism funding and
introduced three key changes:

1. Greater regulatory power and
   functions for the AUSTRAC Chief Executive Officer (CEO)
2. Digital currency exchange
   providers are now subjected to the AML/CTF regime, and
3. Regulatory relief for some
   industries.[27]

The power of the AUSTRAC CEO will be
expanded to allow the role to issue infringement notices for more offences
rather than require Federal Court proceedings. The AUSTRAC CEO’s investigative
and enforcement powers will also be strengthened as police and Customs officers
will receive broadened powers to search and seize physical currency and bearer
negotiable instruments where there is a suspicion of money laundering,
terrorism financing or other serious criminal offences.

In accordance with the FATF guidance
released in 2015, the legislation will be expanded to include businesses who
exchange digital currencies for money, such as Bitcoin exchanges. This will
bring the digital currencies more into line with cash currencies.

Finally, there will be regulatory relief
for low risk industries such as the cash-in-transit sector, insurance
intermediaries, and general insurance providers, although some definitions will
be extended to include more companies in groups.

Overall, the amendments have expanded
rather than contracted the roles and reach of the legislation. Whereas most
reviews have recommended the counter-terrorism financing regime should be
reduced due to the lack of evidence as to the effectiveness of the legislation,
the opposite has occurred. This continues to be the trend for Australian
counter-terrorism laws; react quickly without the appearance of much
forethought.  

Conclusion

The world has changed and it will never
return to how things were pre 9/11. Australia has been particularly hard hit as
we felt protected and we are now hurriedly trying to meet our international
obligations in relation to terrorism.

The international pressure, perceived or
otherwise, to implement the same level of protections as the rest of the
international community has led to significant legislation being adopted and it
has been done so very quickly. However the difficulty to date is the lack of
case law or evidence to indicate that terrorism financing is even actually occurring
in Australia. It could therefore be argued that it has been a knee jerk
reaction with no planned or considered process to meet these obligations.  

As stated by INSLM, ‘there has been very
little analysis of the nature, scale and threat of terrorism financing globally
and the effectiveness of measures to counter terrorism financing adopted by
States in purported compliance with international obligations’.[28]
Until that happens, it will continue to be questionable as to whether the laws
as they currently stand are effective, or even necessary, in Australia other
than to meet our international obligations. The lack of evidence and
over-regulating of low risk industries has resulted in few prosecutions. Accordingly,
the regulatory regime that has been implemented by Australia is not meeting the
stated objectives and it does not appear that future changes are being
considered to try and change this perception.  

Bibliography

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Government, Report on the Statutory
Review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
and Associated Rules and Regulations, April 2016

The Australian, <https://www.theaustralian.com.au/national-affairs/national-security/keenan-tightens-laws-on-moneylaundering-and-terror-financing/news-story/b249b71ccaae5e3aa9f4f3eddb025ebf>

Australian Human Rights Commission, Inquiry into the Independent Reviewer of
Terrorism Laws Bill 2008 [No 2], 12 September 2008 <
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Security Legislation Monitor’ (2010) 12 Flinders
Law Journal 83

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Financing Regime: New Compliance Challenges for the Financial Services Industry,
25 Law Context: A Socio-Legal J. 160 (2007)

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Websites:

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[1] Although Australia had terrorist legislation in the Northern
Territory, it was the exception rather than the rule.

[2] The G-7 is seven countries who developed a forum for the world’s
major industrialised countries to share macroeconomic initiatives.

[3] FATF, History of the FATF
<http://www.fatf-gafi.org/about/historyofthefatf/>

[4] Nicola McGarrity, ‘The Criminalisation of Terrorist Financing in
Australia’ (2012) Monash University Law
Review (Vol 38, No 3)

[5] Tracey Mylecharane, Anti-Terrorism Financing, Australian National
University (30 May 2018)

[6] Marc Posthouwer, Australia’s
Enhanced Anti-Money Laundering and Counter-Terrorism Financing Regime: New
Compliance Challenges for the Financial Services Industry, 25 Law Context:
A Socio-Legal J. 160 (2007)

[7] UN Security Council Resolution 1373 (2001)

[8] McGarrity, above n 4

[9] George Syrota, Australia’s Counter-Terrorism Offences: A Critical
Study (2008) University of Western
Australia Law Review (34)

[10] Office of the Australian Information Commissioner, <https://oaic.gov.au/privacy-law/other-legislation/anti-money-laundering>

[11] Anti-Money Laundering and
Counter-Terrorism Bill 2006

[12] Acts Interpretation Act 1901 s 15AB

[13] R v Benbrika & Ors [2009] VSC 21, 3 February 2009

[14] Chief Executive Officer of
the Australian Transaction Reports and Analysis Centre v Commonwealth Bank of
Australia Statement of Agreed Facts and Admissions, 4 June 2018

[15] Independent National Security Legislation Monitor, About the INSLM, <https://www.inslm.gov.au/about>

[16] Ibid, statutory functions

[17] Bret Walker, Independent National
Security Legislation Monitor Annual Report, Independent National Security
Legislation Monitor, 7 November 2013

[18] Ibid 93

[19] Ibid 113

[20] Smith R, McCusker R & Walters J. 2010. Financing of
terrorism: Risks for Australia. Trends & issues in crime and criminal
justice No. 394. Canberra: Australian Institute of Criminology 

[21] Simon Norton and Paula Chadderton, December 2016, Special Report: Detect, disrupt and deny:
Optimising Australia’s counterterrorism financing system, Australian
Strategic Policy Institute Limited 2016

[22] FATF and APG (2015), Anti-money
laundering and counter-terrorist financing measures – Australia, Fourth Round
Mutual Evaluation Report, FATF, Paris and APG, Sydney

[23] Ibid 7

[24] Smith, above n 20

[25] Smith, above n 20

[26] Attorney-General’s Department, April 2016

[27] Murray Deakin and Sara Liu, New
anti-money laundering and counter-terrorism financing laws, 30 January
2018, Legaltalk – Insights, PricewaterhouseCoopers

[28] Ibid 104