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Part 1
Bills
introduced
29
October – 1 November 2012
Introduced into the Senate on 30
October 2012
By: Senator Xenophon
Committee view
1.2
The committee considers that the measures proposed are proportionate
interferences with the right to privacy in pursuit of the objectives of
eliminating money laundering and reducing the extent and impact of problem
gambling.
Purpose of the bill
1.3
This bill amends the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 to:
- provide that poker machine payouts of more than $1,000 and the
cashing of transferred cheques are threshold transactions which are reportable
to AUSTRAC;
- require gaming machine venues to issue cheques for payouts of
winnings or gaming machine credits over $1,000 with an indication that they
have been issued for that purpose; and
- impose penalties for failure to issue cheques in those
circumstances..
1.4
The purpose of the bill is to restrict opportunities for money
laundering through poker machines.
Compatibility with human rights
1.5
The bill is accompanied by a statement of compatibility which identifies
that the bill engages the right not to be subject to unlawful or arbitrary
interference with one’s privacy (article 17 of ICCPR) and states that the bill
is compatible with human rights 'as it limits the right to privacy to the least
amount possible and is in line with existing laws and regulations.'
Right to privacy
1.6
The statement of compatibility identifies the two aims of this bill as
the reduction of money laundering and preventing 'money launderers taking
advantage of problem gamblers through purchasing or transferring winning
tickets'. These aims are pursued by requiring the reporting of transactions
involving winnings of $1,000 or more.
1.7
The bill seeks to bring within the framework of the existing anti-money
laundering legislation a new category of transactions. At present the amount
which triggers the applicability of the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 is $10,000 (a ‘threshold transaction’). This bill seeks
to reduce that amount to $1,000. By defining transactions involving gambling
winnings of $1,000 as a ‘threshold transaction’, a number of provisions of the
2006 Act would apply. This would include the reporting of the transaction to
AUSTRAC. This report would include providing details of the person who had won
the money. The bill would also require that winnings of $1,000 or more would
need to be paid in the form of a cheque.
1.8
Engaging in gambling is a lawful pursuit and a person’s gambling
activity would fall within the scope of protection of the right to respect for
private life. Requiring a person to provide personal information and the amount
on winnings to a regulatory authority and perhaps limiting the immediate
availability of winnings, involve an interference with the enjoyment of that
right. The question thus becomes whether the interference is aimed at the
achievement of a legitimate objective, whether there is a rational connection
between the limitation and the objective, and whether the limitation is
proportionate to that restriction.
1.9
The bill states that it is pursing two objectives, the elimination of
money-laundering and the limitation of problem gambling. Both of these goals
are legitimate objectives.
1.10
The requirement of reporting significant cash transactions is accepted
as contributing to the achievement of the anti-money laundering goal, in that
it underpins the 2006 Act. The amount of $1,000 is a relatively small sum and
raises the question of whether it is a proportionate measure when viewed as an
anti-money-laundering measure. The explanatory memorandum states the
requirement to report threshold transactions to AUSTRAC (normally $10,000) is ‘already
covered by the organisation’s strict privacy requirements and the provisions in
this bill would not alter that framework’, but does not, however, address the
proportionality issue, in particular as to whether the encroachment on the
rights of the individual is justified, especially as the figure of $10,000 was
presumably chosen as the appropriate level at which reporting requirements
would be reasonably effective. The committee considers that this issue should
have been expressly addressed in the statement of compatibility.
1.11
In relation to the second objective, the reduction of problem gambling,
the statement of compatibility states that the proposed requirement that
payment of winnings of $1,000 or more be by cheque would 'help to prevent
problem gamblers from “chasing their losses” and provides a cooling-off period
while the cheque is cashed.’
1.12
The explanatory memorandum (p 2) suggests that not only would the
measures proposed be an effective way of addressing money-laundering, but would
also limit the opportunities for problem gamblers to go further into debt,
noting that 'the limit of $1,000 would exclude most poker machine players due
to the low value of most genuine wins, therefore limiting the right to privacy
in the least amount possible while still achieving the desired outcome'.
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