Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy (Consequential Amendments) Act 2011

Reporting Entities Roll - Section 51C requires the AUSTRAC CEO to maintain a roll for the purposes of Part 3A, known as the Reporting Entities Roll. It may be kept by electronic means and is not a legislative instrument. The AML/CTF Rules may provide for correction of entries and other administrative matters.

Enrolment - Under section 51D, upon a proper application by a person not already on the Roll, the AUSTRAC CEO must enter the person’s name and enrolment details. Enrolment is not a one-off event; section 51F imposes an ongoing obligation to update enrolment details when they change.

Designated service - This term is not defined in the source text, but it is a defined term in the AML/CTF Act itself. The concept anchors who must enrol. The simplified outline at section 51A merely states that providers of designated services must be entered on the Roll.

Enrolment details - The term appears in sections 51D, 51F, and 51G, but its content is not specified in the Act. Section 51E requires an application to contain information required by the AML/CTF Rules, and section 51F(1) refers to changes “of a kind specified in the AML/CTF Rules”. The key details of what must be provided and what changes trigger the update obligation are therefore delegated to subordinate legislation.

Civil penalty provision - Sections 51B(3) and 51F(3) designate the respective substantive obligations as civil penalty provisions. This means a court can order a pecuniary penalty for contravention, on a balance of probabilities, with liability extending under the AML/CTF Act’s general civil penalty framework (not reproduced here). The Act does not set a maximum civil penalty for these provisions; the general penalties in Part 6 of the AML/CTF Act would apply.

Part 3A infringement notice provision - Schedule 2 adds references to subsections 51B(1) and 51F(1) into the existing infringement notice machinery. This means AUSTRAC can issue an infringement notice (an on-the-spot fine) for non-compliance, with penalty amounts different from court-imposed civil penalties. The transitional provision (item 7(4)) specifies that during the transitional period the penalty is 60 penalty units for a body corporate and 12 penalty units for an individual. The substantive amendments (Part 1) bring the provisions within the existing section 186A, which already sets penalties for other provisions, so the same penalty structure would apply after the transitional period.

Approved form - Sections 51E(2)(a) and 51F(2)(b) refer to “the approved form” or a manner specified in the AML/CTF Rules. This indicates AUSTRAC will prescribe pro-forma applications and notifications.

AML/CTF Rules - The source text repeatedly delegates detail to the AML/CTF Rules, including the content of applications, the types of changes that must be reported, and the operation of the Roll. The Rules themselves are the principal delegated instrument under the AML/CTF Act.

The primary category of affected persons is any entity (corporate or individual) that provides a “designated service” as defined in the AML/CTF Act. This includes the large array of financial institutions, remittance providers, bullion dealers, gambling operators, lawyers, accountants, real estate agents, and other professionals who are reporting entities under the broader AML/CTF regime. The Act extends the existing AML/CTF regulatory burden by adding a registration requirement distinct from the existing reporting obligations (like threshold transaction reports and compliance reports).

The 28-day enrolment deadline (section 51B) creates an immediate impact on any person who was already providing a designated service in the 28 days before Part 3A commenced. For those who commenced later, the obligation kicks in within 28 days of starting. This imposes a compliance clock on new market entrants.

The change notification obligation (section 51F) affects all enrolled persons, both ongoing and those who may have previously ceased but have not been removed from the Roll. Enrolled persons must monitor their enrolment details (whatever the AML/CTF Rules specify) and report changes within 14 days. This creates a recurring compliance cost.

The review obligation in section 4 requires the Minister to commission an independent review of the Levy Act’s operation, and that review must consult with industry participants including small and micro businesses. This acknowledges that the levy itself (a separate Act) will impose direct financial costs, and the consequential amendments may compound compliance costs.

The AUSTRAC CEO is the administrative actor: must maintain the Roll, process applications, consider removal requests, and issue infringement notices. The CEO’s discretion in removal decisions (section 51G) introduces an element of regulatory gatekeeping.

Legal practitioners and accountants who provide designated services (e.g., in financial transactions) will need to enrol. The review requirement for small and micro businesses suggests awareness that these obligations may be disproportionately burdensome for smaller entities.

Duty to enrol (section 51B) - A person who provides a designated service must ensure their name is on the Reporting Entities Roll. The time limit is 28 days from either the section’s commencement (for existing providers) or from commencing provision. The section explicitly applies even if the person has already applied under subsection 51E(1) for another designated service; the duty does not require a fresh application in that case, provided the person has not since requested removal.

Duty to apply for enrolment (section 51E) - A person may apply in writing for enrolment. The application must be in the approved form or as specified in the AML/CTF Rules and must contain the information required by the Rules. This is both a right (to apply) and an obligation (because the duty to enrol cannot be satisfied without a proper application).

Duty to notify change in enrolment details (section 51F) - Enrolled persons must advise the AUSTRAC CEO of any change in enrolment details of a kind specified in the AML/CTF Rules. The timeframe is 14 days after the change arises, and the notification must be in accordance with the approved form or manner specified in the Rules.

Right to request removal (section 51G) - A person may request, in writing and in the approved form, removal of their name and enrolment details from the Roll. The request must contain information required by the AML/CTF Rules. The AUSTRAC CEO must consider the request and remove the person only if satisfied it is appropriate, with regard to: whether the person has ceased providing designated services; the likelihood of providing such a service in the next financial year; and any outstanding reporting obligations under sections 43, 45, or 47. This is not an automatic right; the CEO retains discretion, and the person could be denied removal even if they have ceased, if the CEO finds a likelihood of future provision or outstanding reports.

Right to procedural safeguards - For civil penalty provisions, standard protection under the AML/CTF Act’s Part 6 applies, including court proceedings. For infringement notices, the amended sections 184 and 186A provide the statutory basis, with penalties capped at the amounts set by the regulations or the Act.

Ministerial duty to review (section 4) - The Minister must cause an independent review of the Levy Act’s operation after the second anniversary of its section 3 commencement, and must table the report within 15 sitting days of receiving it.

The Act creates two enforcement tracks for the new Part 3A obligations.

Civil penalty provisions - Subsections 51B(3) and 51F(3) designate the enrolment and change-notification duties as civil penalty provisions. The AML/CTF Act’s existing civil penalty regime (Part 6) would apply, meaning AUSTRAC could seek court orders for pecuniary penalties. The Act itself does not specify the maximum civil penalty for these provisions; that would be determined by the general penalty provisions of the AML/CTF Act (not reproduced in the source). Civil penalty proceedings are heard in a federal court on the balance of probabilities, and both bodies corporate and individuals can be liable. There is no criminal penalty attached to these offences in the source, though the broader AML/CTF Act may criminalise other conduct.

Infringement notices - Schedule 2 brings the Part 3A obligations into the infringement notice regime. Section 184(1) of the AML/CTF Act (as amended) now includes references to subsections 51B(1) and 51F(1) among the provisions for which an infringement notice may be issued. Section 186A is amended to include Part 3A infringement notice provisions. The source text does not reproduce the full text of section 186A, but the transitional provision (item 7(4)) sets the penalty for the assumed section 186A during the transitional period at 60 penalty units for a body corporate and 12 penalty units for an individual. Assuming the substantive amendments carry forward the same or similar penalty amounts (and the penalty unit value at the time of enactment was around $110), the maximum on-the-spot fine would be approximately $6,600 for a company and $1,320 for an individual. The infringement notice can specify more than one alleged contravention (item 7(3) for the transitional period). Issuing an infringement notice does not preclude other enforcement action; paying the penalty discharges liability for the alleged contravention.

Removal from the Roll as a de facto sanction - While not a penalty per se, the removal process (section 51G) gives the AUSTRAC CEO discretionary power to refuse removal. A person stuck on the Roll may still be subject to notification obligations and potential penalties for non-compliance, even if they believe they have ceased designated services.

Ministerial review - Section 4 does not impose penalties but creates a feedback mechanism. Non-compliance with the review obligation (e.g., failure to table) could have political consequences but is not itself penalised in the Act.

This Act is a consequential amendment to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). The core operative provisions (Part 3A and the infringement notice amendments) are directly inserted into that Act. Therefore, the interaction is one of incorporation: the AML/CTF Act now contains a new registration regime and expanded enforcement powers. All pre-existing definitions, rules, and enforcement mechanisms in the AML/CTF Act apply to the new Part, including general penalties, the role of the AML/CTF Rules, and the AUSTRAC CEO’s powers.

The Levy Act (the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy Act 2011) is a separate statute that imposes a levy on certain reporting entities to recover AUSTRAC’s supervisory costs. This Act does not amend the Levy Act, but section 4 requires a review of its operation, linking the two instruments in a policy sense. The review must examine the levy calculation methodology and its impact on industry participants, including interaction with compliance costs under the AML/CTF Act.

The Combating the Financing of People Smuggling and Other Measures Act 2011 is relevant because the commencement of Schedule 2, Part 1 is tied to the commencement of item 31 of Schedule 1 to that Act. This creates a conditional commencement that links the infringement notice amendments to another piece of legislation. The source provides the actual date (1 November 2011) but the condition reflects interaction at the legislative drafting level.

The AML/CTF Rules, which are a legislative instrument made under section 229 of the AML/CTF Act, are heavily referenced. Sections 51C(4), 51E(2), 51F(2), and 51G(2) all delegate critical detail to the Rules. The Rules will prescribe what enrolment details must be provided, what changes trigger the notification duty, and how the Roll is administered. This means the Act’s practical operation depends heavily on subordinate legislation.

The Acts Interpretation Act 1901 would govern the interpretation of terms like “penalty units” and calculations of time.

Related common law principles: the AUSTRAC CEO’s discretion in removal (section 51G) may be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the common law, though the source does not discuss this.

The source text provides no notes of subsequent amendments to this Act. The Act received Royal Assent on 28 June 2011, and Schedule 1 (which inserts Part 3A) commenced on 1 November 2011 by Proclamation (F2011L02035). Schedule 2, Part 1 commenced on the later of that date and the commencement of item 31 of Schedule 1 to the Combating the Financing of People Smuggling and Other Measures Act 2011, which also occurred on 1 November 2011. Schedule 2, Part 2 commenced immediately after Schedule 2, Part 1.

There is no evidence in the source of any subsequent amending Acts. The review mechanism in section 4 may have led to legislative changes but the source does not record them. The original Act appears to have been a one-off amendment that added the Reporting Entities Roll to the AML/CTF Act. Subsequent amendments to the AML/CTF Act (such as those introducing the Modern Slavery Act connections or the 2017 reforms) are likely but are not reflected in the text provided.

Practitioners should note that the AML/CTF Act itself has been amended numerous times since 2011, and the roll provisions in Part 3A may have been further modified. This Act’s own amendment history would need to be checked on the Federal Register of Legislation for later amending Acts.

The source text does not mention any litigation history. No cases are referenced, and there is no indication that the provisions of this Act or its insertion of Part 3A have been judicially considered. Given the Act’s nature as a technical amendment to an already complex regulatory regime, it is plausible that litigation has arisen regarding non-compliance with the enrolment or notification duties, but the source provides no such information. The absence of litigation in the source does not confirm absence of case law; it simply means the Act itself does not cite any cases.

Potential areas of litigation could include: challenges to the AUSTRAC CEO’s refusal to remove a person from the Roll; arguments about whether a service is a “designated service” (which would rely on definitions in the AML/CTF Act, not this Act); disputes over the adequacy of notice for infringement notices; and constitutional challenges to the civil penalty regime or delegation to the AML/CTF Rules. But these are speculative; the source is silent.

The 28-day enrolment window for existing providers (section 51B(1)(a)) was one of the tighter compliance deadlines in Australian financial regulation. Any person who was already providing a designated service at the time Part 3A commenced had less than a month to identify their status, obtain the approved form, and submit a complete application. Failure to do so immediately triggered a civil penalty exposure. This created a trap for those unaware of the new regime, particularly smaller operators with limited legal resources.

The change notification obligation (section 51F) imposes a 14-day deadline from the date the change arises, not from when the person becomes aware of it. An entity could fail to report a change they did not promptly detect (e.g., a change in a director’s address that the entity did not learn of for several days). The AML/CTF Rules specify which changes are notifiable, but the burden falls on the enrolled person to track all prescribed detail changes.

Removal from the Roll is not a simple request. Even if a person has stopped providing designated services, the AUSTRAC CEO can refuse removal if there is a likelihood of future provision or any outstanding reports under sections 43, 45, or 47. A person who has genuinely ceased but has not bothered to file a final threshold transaction report could find themselves stuck on the Roll indefinitely. The CEO has no timeframe to consider the request; delay itself is a practical obstacle.

The infringement notice penalty amounts (from the transitional provision: 60 penalty units for a body corporate, 12 for an individual) are not trivial. For a small business, $6,600 for failing to enrol could be a significant hit. The infringement notice can be issued for each day of contravention? The source does not explicitly allow multiple notices per day, but section 185(2) (as amended for the transitional period) allows a single notice to specify more than one alleged contravention. This could mean a cumulative penalty for a continuing failure.

The delegation to the AML/CTF Rules means key compliance details are not in the Act itself. A practitioner must read the Rules to know exactly what information must be provided in an application, what counts as a change in enrolment details, and how the AUSTRAC CEO administers the Roll. The Rules can be changed without amending the Act, adding regulatory risk.

The review under section 4 is mandatory, but the Act does not prescribe consequences if the Minister fails to cause the review on time. The 6-month reporting deadline and 15-sitting-day tabling requirement are also not enforceable by private action. Industry participants have no statutory right to compel compliance with the review.

The central compliance steps for any person providing designated services are as follows.

Check whether you provide a designated service. This is a threshold determination under the AML/CTF Act and its definitions, not under this Act. If you are a reporting entity under the AML/CTF Act and have not already enrolled, you are likely caught.

Enrol within the applicable deadline. For new entrants, apply to the AUSTRAC CEO within 28 days of starting to provide the designated service. Use the approved form (which will be specified by AUSTRAC, likely a web-based portal or a PDF). Submit the information required by the AML/CTF Rules. Keep evidence of the application date. For existing providers as at the date Part 3A commenced, the deadline was 28 days after commencement; for ongoing operations, that deadline has long passed, but any entity not enrolled that should be is in continuing contravention.

Monitor your enrolment details. Obtain the AML/CTF Rules to see which details are prescribed (e.g., physical address, contact details, organisational structure). Set up internal systems to detect changes to those details (or delegate responsibility to a compliance officer). When a change arises, notify the AUSTRAC CEO in the approved form within 14 days. The clock runs from the change itself, not from when you discover it, so early detection is critical.

If you cease providing designated services, consider requesting removal from the Roll. Prepare evidence to show that you have ceased, that there is no likelihood of recommencing in the next financial year, and that all outstanding threshold transaction reports, international funds transfer instruction reports, and AML/CTF compliance reports have been lodged. File the request in the approved form with the required information. However, do not assume removal will be automatic; allow time for the AUSTRAC CEO to exercise discretion. If removal is refused, you must continue to comply with notification duties.

Stay current with the AML/CTF Rules. The Rules are the source of the detailed requirements. Any amendments to the Rules may change the information you must submit or the triggers for notification. Subscribe to updates from AUSTRAC.

Respond to infringement notices promptly. If you receive a notice for failing to enrol or to notify a change, consider whether to pay the penalty (which discharges liability) or to contest the notice (which may lead to civil proceedings). The penalty amounts are set by reference to penalty units; check the current value of a penalty unit at the time of the notice.

For large entities, incorporate the Part 3A obligations into your AML/CTF compliance program. Enrolment and change notification are recurring, non-discretionary obligations. Assign responsibility, set calendar reminders, and conduct periodic audits to ensure the Roll entry is accurate. The review under section 4 may also be an opportunity to provide feedback on the cumulative burden of the levy and registration requirements, especially for small and micro businesses.