Financial Transaction Reports Act 1995

The Act adopts core definitions by cross-reference. Section 4(1) defines FTR Act (the Commonwealth Financial Transaction Reports Act 1988) and AMLCTF Act (the Commonwealth Anti-Money Laundering and Counter-Terrorism Financing Act 2006). Section 4(2) provides that, unless the contrary intention appears, expressions used in those Commonwealth Acts have the same respective meanings in this Act. This means the key operative concepts of "cash dealer" and "reporting entity" are not defined in the WA Act itself but are imported from the Commonwealth regimes as they stand from time to time. That creates a dynamic incorporation: any amendment to the Commonwealth definition automatically changes the class of persons subject to the WA obligations, unless the WA Act indicates a contrary intention.

A cash dealer under the FTR Act includes banks, building societies, credit unions, insurance companies, securities dealers, cash carriers, bullion sellers, gambling entities and others. A reporting entity under the AMLCTF Act is broader and covers entities that provide designated services, including financial services, remittance, gambling, bullion trading and digital currency exchange. The 2018 amendment (via the Financial Transaction Reports Amendment Act 2018) expanded the WA Act to mirror the shift from the old FTR Act to the new AMLCTF Act, adding s 6A for reporting entities and updating s 7 to provide an exemption for reports already made under the AMLCTF Act.

The AUSTRAC CEO is the Commonwealth chief executive officer of AUSTRAC. The reports under s 7(1) must be communicated to the AUSTRAC CEO, not directly to Western Australia Police. This means the Act uses the Commonwealth agency as a conduit. The police then exercise their request powers only after the information has reached AUSTRAC.

Reportable details are defined in s 7(9) as the details referred to in the FTR Act Schedule 4. That schedule lists transaction particulars: the nature, amount, currency, parties, accounts, dates, and any other information the AUSTRAC CEO requires. The report under s 7(3) must be in the form approved for s 16 of the FTR Act, which is a standardised report form.

Protected information is defined in s 10(4) as information obtained under the Act. This captures any data that police receive via requests under ss 6, 6A or 7(6), or from the suspect transaction reports themselves, or from any other source under the Act.

The Criminal Property Confiscation Act 2000 (WA) is referenced throughout as a secondary purpose for which information may be sought or reported. That Act deals with restraining and confiscating property derived from or used in crime, including unexplained wealth provisions.

The primary duty bearers are private-sector entities: cash dealers and reporting entities. These are predominantly financial institutions, gambling operators, bullion dealers, remittance providers, lawyers, accountants, real estate agents and others who provide designated services under the Commonwealth regimes. The Act does not impose duties on individuals who are not cash dealers or reporting entities, except that officers, employees and agents of those entities may be individually exposed if they make false statements (s 9) or if they fail to comply with a police request on behalf of the entity. However, the entity itself faces the penalty for non-compliance with a request (ss 6(3), 6A(5), 7(8)). The false statement offence under s 9 is drafted broadly enough to apply to any person communicating or giving information under the Act, including employees.

Police officers and the Commissioner of Police are directly affected by the secrecy obligation in s 10. They must not record or divulge protected information except for law enforcement duties and are not required to disclose it to a court unless necessary for enforcement. Breach is a criminal offence. The provision is unusual in that it imposes a statutory duty of confidentiality on law enforcement that is specific to this Act, rather than relying on general secrecy provisions.

The Act indirectly affects persons under investigation for State offences or whose property may be subject to confiscation. Their financial transaction data may be obtained by police without a warrant or court order, simply through a written request to the cash dealer or reporting entity. There is no requirement for the police to demonstrate reasonable suspicion or obtain judicial authorisation before making a request under ss 6, 6A or 7(6); only that the information may be relevant to investigation or enforcement of the Criminal Property Confiscation Act. This lowers the threshold compared to search warrants or production orders under other legislation.

The Crown in right of the State is bound (s 5), which means State government agencies that are cash dealers or reporting entities (for example, a State-owned bank or a government-run gambling venue) are subject to the same obligations. However, the Commissioner of Police is part of the Crown, so the Act's duties and secrecy obligations apply reciprocally.

The central duty on cash dealers and reporting entities is the obligation to comply with a police request for further information or documents. Sections 6(3), 6A(5) and 7(8) each impose a penalty for non-compliance of a fine of $20,000 and two years imprisonment. Compliance is required only "to the extent that the cash dealer has the further information or documents." If the entity does not hold the material, there is no duty to create it. The request must specify a period of at least 14 days, but the police officer may shorten that period unilaterally if they consider it necessary and reasonable. There is no statutory right for the entity to challenge the shortened period before it runs.

A second duty is the suspect transaction reporting obligation under s 7(1). A cash dealer must, as soon as practicable after forming a reasonable suspicion that transaction information may be relevant to a State offence or confiscation proceedings, prepare a report and communicate it to the AUSTRAC CEO. The standard of "reasonable grounds to suspect" is objective: it is not enough to have a subjective hunch. The cash dealer must have some factual basis. The report must include a statement of the grounds for suspicion, which exposes the dealer to scrutiny if the suspicion is later found to have been unreasonable. Failure to report is an offence with the same penalty.

A third duty is the prohibition on false or misleading statements under s 9. This applies to any person communicating or giving information under the Act. The offence requires knowledge: either the person knows the statement is false or misleading in a material particular, or omits something knowing the omission makes it misleading. It does not require proof of intention to deceive or to prejudice an investigation.

Rights under the Act are limited. The protection from civil liability in s 8 is significant. It provides that no action, suit or proceeding lies against a cash dealer, reporting entity or their officers, employees or agents for anything done that was required under the Act, or done in the mistaken belief it was required. This covers both compliance with police requests and voluntary reporting under s 7. The protection extends to mistaken belief, which is generous: even if the request was invalid or the report was not actually required, the entity is shielded if it honestly believed it was. However, the protection does not extend to acts done beyond what is required, such as voluntarily disclosing more information than requested or reporting a transaction that does not meet the threshold.

Section 8(3) provides a further right: for the purposes of the Criminal Code s 563A (property laundering), the entity is deemed not to have been in possession of the information it communicated under the specified sections. This avoids the paradox that disclosing suspicious transaction information could itself constitute possession of property the entity knows to be proceeds of crime.

The Act creates four distinct offences, each with different penalties and procedural pathways.

Non-compliance with a police request for further information or documents (ss 6(3), 6A(5), 7(8)) carries a maximum penalty of a fine of $20,000 and imprisonment for 2 years. The same penalty applies to failure to report a suspect transaction under s 7(1). These offences are to be dealt with summarily by a court of summary jurisdiction constituted by a magistrate sitting alone (s 11(1)). Summary proceedings mean the offence is not indictable; the maximum penalty is lower than that for crime, and there is no right to trial by jury. The limitation period for summary offences in Western Australia is generally 12 months from the date of the offence under the Criminal Procedure Act 2004 (WA), unless extended. This relatively short window may limit enforcement.

Making a false or misleading statement or omission under s 9 is a crime (s 11(2)). This means it is an indictable offence triable in the District Court or Supreme Court, with a maximum penalty of a fine of $50,000 and imprisonment for 5 years. As a crime, it carries heavier procedural safeguards, including a preliminary hearing (committal) and jury trial. The definition of "crime" in Western Australia is based on the Criminal Code. There is no limitation period for indictable offences.

Breach of secrecy by a police officer under s 10(2) carries a fine of $20,000 and imprisonment for 2 years, dealt with summarily (s 11(1)). This means a magistrate hears the case. The prohibition covers making a record of protected information or divulging it directly or indirectly, unless done in the performance of duties relating to enforcement of the laws of the State, Commonwealth, another State or a Territory (s 10(2)). The officer is also not required to divulge protected information to a court unless necessary for enforcement (s 10(3)). This creates a form of statutory privilege that is broader than public interest immunity; it flatly prohibits disclosure except in narrow circumstances, and even a court cannot compel it unless the enforcement necessity is established.

Enforcement is likely to be initiated by Western Australia Police. There is no provision for private prosecutions. The AUSTRAC CEO is involved only as a recipient of reports; the CEO has no enforcement role under this Act. The Act does not confer any inspection or monitoring powers on police; they rely on the information they receive voluntarily or via the request provisions.

The Act is parasitic on the Commonwealth FTR Act and AMLCTF Act. It adopts their definitions (s 4(2)) and uses the AUSTRAC CEO as the recipient of suspect transaction reports (s 7). The exemption in s 7(2) prevents double reporting: if the transaction is already reportable under the Commonwealth regimes, the State obligation does not apply. This avoids duplication but creates a gap: a transaction that is reportable under Commonwealth law but falls below the threshold for a State investigation might still be captured by s 7 if the cash dealer independently suspects it is relevant to a State offence. The provision is not an exclusive reliance on Commonwealth reporting.

Section 8(3) modifies the Criminal Code s 563A (property laundering). Without that deeming provision, a cash dealer who discloses information under the Act could be treated as having been in possession of property they knew to be proceeds of crime, potentially exposing them to prosecution for property laundering. The deeming provision only applies when the disclosure is made under FTR Act s 16, AMLCTF Act ss 41, 43 or 45, or WA Act ss 6, 6A or 7. Disclosures outside those provisions (for example, voluntary reports to police not via AUSTRAC) may not attract the deemed non-possession protection.

The secrecy provision in s 10 interacts with freedom of information and privacy laws. Protected information obtained under the Act cannot be released under the Freedom of Information Act 1992 (WA) if it would be an offence to divulge it under s 10. The Privacy Act 1988 (Commonwealth) generally exempts law enforcement agencies from many of its provisions, but the interaction may affect how police handle and store the information.

The Act also interacts with the Criminal Property Confiscation Act 2000 (WA). Information obtained under ss 6, 6A or 7 may be used to support applications for restraining orders, confiscation orders or examination notices under that Act. The threshold for the police request ("may be of assistance in the enforcement of the Criminal Property Confiscation Act 2000") is broad and does not require that proceedings have commenced.

The Act binds the Crown (s 5), which means it applies to State instrumentalities that are cash dealers or reporting entities. However, the secrecy provision binds only the Commissioner of Police and police officers, not other Crown servants.

The Act received Royal Assent on 30 June 1995 and commenced the next day, 1 July 1995. The original version only referenced the FTR Act and did not contain any reference to the AMLCTF Act, which did not exist at that time. The original s 6 applied only to cash dealers and s 7 did not contain the exemption for reporting entities. The original penalty for ss 6 and 7 was imprisonment for 2 years and/or a fine of $20,000.

The first amendment came via the Criminal Property Confiscation (Consequential Provisions) Act 2000 (No. 69 of 2000), s 15, which took effect on 1 January 2001. That amendment (now lost in the compilation text) likely inserted the references to the Criminal Property Confiscation Act 2000, replacing earlier references to the repealed Crimes (Confiscation of Profits) Act 1988. The compilation note in the current text indicates that s 15(2) of the 2000 Act provided that the pre-amendment Act continued to apply in relation to the enforcement of the earlier confiscation legislation to the extent that its operation was continued. That transitional provision has likely spent its force.

The Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004), s 141, amended s 11(1) to remove reference to "a court of summary jurisdiction" and replace it with "a court of summary jurisdiction constituted by a magistrate sitting alone." This was a procedural change in line with reforms to the courts system.

The most significant amendment was the Financial Transaction Reports Amendment Act 2018 (No. 25 of 2018), which received Royal Assent on 17 October 2018 and commenced the next day for the operative provisions. This amendment: inserted s 6A to extend the police request power to reporting entities under the AMLCTF Act; amended s 7 to add the exemption for AMLCTF Act reports, update the penalty for failure to report (which was previously a lower amount? The text shows the same $20k/2yrs but was likely unchanged), and added subsections (5A) through (9) providing the police power to request additional information and documents after a suspect transaction report under s 7; amended s 8 to extend the protection to reporting entities and to include the AMLCTF Act sections; amended s 9 to increase the penalty from $10,000 and 2 years (the original amount) to $50,000 and 5 years; amended s 10 to broaden the secrecy obligation from "the Commissioner of Police" to "a person who is or has been the Commissioner of Police or a police officer"; and amended s 11 to clarify that s 9 is a crime.

The compilation table shows reprints in 2002 and later, but the current official version is the compilation incorporating all amendments.

The Act itself does not refer to any case law, and no relevant Western Australian cases are publicly well-known. Because the Act creates State-level obligations on private entities with criminal penalties but limited use in practice (most proceeds of crime work in WA uses the Criminal Property Confiscation Act directly, with police using other coercive powers), reported litigation is sparse. The secrecy provision (s 10) could potentially come before a court in a dispute over disclosure, but no reported decision appears.

Potential areas of litigation include: challenges to the validity of a police request on the ground that the specified period was not reasonable (ss 6(1B), 6A(3), 7(6A)); disputes over whether the cash dealer or reporting entity had the requested information (for example, whether it was within its control); defences of mistake of fact in relation to the false statement offence; and constitutional challenges to the adoption of Commonwealth definitions. The High Court has upheld the validity of similar cross-referencing provisions, but the question of whether the WA Act impermissibly delegates legislative power to the Commonwealth could arise if the Commonwealth definitions were altered in unexpected ways.

The deeming provision in s 8(3) may also be litigated in property laundering prosecutions under the Criminal Code s 563A, where the prosecution argues that the defendant was in possession of information despite the deemed non-possession. The scope of the deeming is limited to specific sections.

Because the Act is a relatively obscure companion to the Commonwealth regime, most enforcement occurs without court challenge. The penalties for non-compliance are summary and likely resolved in the Magistrates Court. The s 9 offence is a crime and may be prosecuted in the District Court, but no reported judgments are recorded.

The most significant trap for practitioners advising cash dealers and reporting entities is the interplay between the Commonwealth and State regimes. An entity that complies fully with its AMLCTF Act reporting obligations may still be required to report under s 7 if it has information that may be relevant to a State offence, even if the same transaction was not reportable under the Commonwealth regime because, for example, it fell below the $10,000 threshold. The s 7(2) exemption only applies if the transaction is already required to be reported under FTR Act Division 2 or AMLCTF Act Part 3 Divisions 2-4. If the transaction is not caught by those provisions (e.g., a suspicious transaction below the threshold), the State duty arises independently.

The timing requirement is strict: "as soon as practicable" in s 7(1) means the cash dealer must act promptly upon forming suspicion. There is no safe harbour for internal investigation. If the entity delays and the suspicion later proves correct, it risks prosecution.

The police request power in ss 6, 6A and 7(6) does not require a warrant, court order, or even reasonable suspicion that an offence has occurred. The only grounds are that the information "may be relevant" to investigation or may assist confiscation enforcement. This is a low threshold. The entity must comply or risk criminal penalty. There is no right to seek review or challenge the request before the compliance period expires. The only safety valve is that the entity can limit compliance to information it actually holds; it does not have to create new records.

The mistaken belief protection in s 8 covers only acts done under the Act or "in the mistaken belief that it was required under this Act." If an employee voluntarily discloses information outside the Act (e.g., to a journalist or to a private investigator), that disclosure is not protected. Similarly, if the entity voluntarily provides information beyond what was requested, that may fall outside the "required" limb and the mistaken belief protection might not apply because the belief was specifically about what was required. The protection is not a blanket indemnity for all cooperation with police.

The secrecy provision (s 10) binds police but does not restrict the entity from disclosing the fact that it received a request. However, if the entity uses protected information (as defined, i.e., information obtained under the Act) for any purpose other than the requested compliance, it may contravene other laws such as the Privacy Act or its own confidentiality obligations. The Act does not give the entity an express right to use the information.

The deeming provision in s 8(3) is limited to s 563A of the Criminal Code. It does not apply to other offences such as money laundering under the Criminal Code s 562 or to Commonwealth money laundering offences. If the entity's disclosure triggers other criminal liability, the deeming is irrelevant.

For a cash dealer or reporting entity subject to the Act, compliance requires a structured approach integrating the State obligations into existing Commonwealth AML/CTF programs.

First, identify whether your entity is a cash dealer under the FTR Act or a reporting entity under the AMLCTF Act. Because the definitions are adopted by reference, monitor any changes to the Commonwealth definitions. If your entity expands into a new service that brings it within those definitions, the WA Act obligations attach automatically.

Second, ensure your AML/CTF compliance program includes processes for identifying transactions that may be relevant to State offences or the Criminal Property Confiscation Act. This is broader than the usual suspect transaction threshold. Train staff to recognise red flags that might not meet the Commonwealth threshold but could indicate a State crime, such as unexplained wealth, avoidance of State taxes, or transactions linked to local criminal activity.

Third, if a staff member forms a reasonable suspicion that information concerning a transaction may be relevant to a State matter, the entity must prepare a report on the form approved by the AUSTRAC CEO (which is the same form used for FTR Act s 16 reports). The report must include the reportable details from FTR Act Schedule 4, a signed statement of grounds, and be communicated to the AUSTRAC CEO as soon as practicable. Do not wait for a police request. The entity should keep a copy of the report and the internal documentation supporting the suspicion.

Fourth, when police make a request under ss 6, 6A or 7(6), the entity must comply within the specified period (at least 14 days unless shorter). The request may be for further information or documents. The entity should have a designated officer responsible for responding to such requests, and a process to locate and collate the requested material. If the entity does not have the information or documents, it should promptly inform the police that it cannot comply because the material is not held. Silence or delay risks prosecution.

Fifth, maintain records of all communications under the Act. The protection from liability in s 8 applies only if the act was required or done in the mistaken belief it was required. To rely on the mistaken belief defence, the entity should document the reason for the belief, for example, a reasonable but erroneous interpretation of the request or report obligation.

Sixth, ensure that no false or misleading statements are made in any communication under the Act. This includes statements in the suspect transaction report and in responses to police requests. The s 9 offence requires knowledge, but it is safer to verify all information before submission. Omissions that make a statement misleading are also caught.

Seventh, if the entity's disclosure falls within s 8(3), it should note that for property laundering purposes it is deemed not to have been in possession of the information. This is a procedural benefit that should be recorded in case the entity is later charged under s 563A.

Finally, legal advice should be sought before deciding not to comply with a police request on the basis that the threshold has not been met. The penalty for non-compliance is criminal, and the Act provides no administrative review mechanism. The safest course is to comply and raise any concerns about the scope of the request separately, potentially seeking judicial review after compliance, but the Act does not explicitly provide for compensation for over-reach.