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:
- Greater regulatory power and functions for the AUSTRAC Chief Executive Officer (CEO)
- Digital currency exchange providers are now subjected to the AML/CTF regime, and
- 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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COAG Counter-Terrorism Review Committee, COAG Review if Counter-Terrorism Legislation, Law Council of Australia Limited, 27 September 2012
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AUSTRAC, <http://www.austrac.gov.au/chapter-10-financial-transaction-reports-act>
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<https://oaic.gov.au/privacy-law/other-legislation/anti-money-laundering>
[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
