Australian Transaction Reports
Correspondence
and Analysis Centre
c/- Attorney-Generals Department
3-5 National Circuit
4 National Circuit
BARTON ACT 2600
BARTON ACT 2600
Australia
n Government
Telephone +612 6120 2600
Facsimile +612 6120 2601
AUS TRAC
www.austrac.gov.au
Our ref: 16/17-014
27 September 2016
Michael Johnstone
via ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Johnstone
Freedom of Information Request Decision
The Australian Transaction Reports and Analysis Centre (AUSTRAC) refers to your Freedom
of Information request (FOI request) received by the Australian Securities and Investments
Commission (ASIC) on 29 August 2016 in which you sought access to documents under the
provisions of the
Freedom of Information Act 1982 (FOI Act). The request was subsequently
transferred in part to AUSTRAC as ASIC found two documents to be more closely connected
with the functions of AUSTRAC.
The documents you requested are:
‘I would like to request a copy of any information that the department has from the
2015/16 tax year for:
The Lamattina Group – VIC B19705865
Lamattina Superannuation Pty Ltd – ACN 159 928 177
Angelo R Lamattina Pty Ltd – ACN 610 690 287
Josephine T Lamattina Pty Ltd – ACN 610 689 846
Robert A Lamattina Pty Ltd – ACN 610 690 063
Russell R Lamattina Pty Ltd – ACN 610 690 036
D Lamattina Investments Pty Ltd – ACN 602 723 704
R & T Lamattina Pty Ltd – ACN 007 418 948
A & G Lamattina & Sons Pty Ltd – ACN 005 830 357’
On 12 September 2016, ASIC transferred two documents in full to AUSTRAC under section 16
of the FOI Act.
I confirm that the following named documents were transferred to AUSTRAC in full:
• One page email
• Ten page report
NOTE: The Australian Securities and Investments Commission will make a decision in relation
to all documents not transferred to AUSTRAC.
I examined the abovementioned documents and have decided to exempt them in full under
subsections 7(2), 37(2)(b), 47E(a), and 47E(d) and sections 47F and 47G of the FOI Act.
Section 26 of the FOI Act requires AUSTRAC to provide a statement of reasons in support of a
decision. My reason for this decision is set out in
Attachment A.
The FOI Act provides a number of avenues for review if you are dissatisfied with any aspect of
this decision. Your review rights are set out in
Attachment B.
If you have any questions or require further information, please contact the decision maker on
02 6120 2631 or via email at
xxxxxxxxxxx@xxxxxxx.xxx.xx.
Yours sincerely
Digitally signed by Suzie
Suzie
Sazdanovic
DN: cn=Suzie Sazdanovic,
o=AUSTRAC, ou=Privacy and
SazdanovicInformation Access Team,
email=suzie.sazdanovic@austrac.g
ov.au, c=AU
Date: 2016.09.27 13:57:07 +10'00'
Authorised Decision Maker
AUSTRAC
Page 2 of 11
ATTACHMENT A
Statement of Reasons
I, Suzie Sazdanovic, am an officer authorised under subsection 23(1) of the
Freedom of
Information Act 1982 (FOI Act) to make a decision in relation to your request.
The following is my decision and the reasons for that decision in relation to the two documents
ASIC transferred to AUSTRAC in full under section 16 of the FOI Act.
Decision
I examined the transferred documents and have decided to exempt them in full under
subsections 7(2), 37(2)(b), 47E(a), and 47E(d) and sections 47F and 47G of the FOI Act.
Reasons
Section 7 – Exemption of certain persons and bodies
Section 7 of the FOI Act provides that an agency is exempt from the operations of the FOI Act
in relation to certain documents.
Subsection 7(2) states:
The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from
the operation of this Act in relation to the documents referred to in that Schedule in
relation to them.
The Australian Information Commissioner has issued Guidelines under section 93A to which
regards must be had for the purpose of performing a function, or exercising a power, under the
FOI Act. The Guidelines at [2.10] explain that:
Subsection 7(2) (supplemented by Schedule 2, Part II) lists agencies that are exempt
from the operation of the FOI Act in relation to particular types of documents …
An examination of documents reveals that they are documents specified in Part II of Schedule 2
of the FOI Act. Therefore, I am exempting the documents under subsection 7(2) of the FOI Act.
Section 37 – Documents affecting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of the
law, or a failure, or possible failure, to comply with a law relating to taxation
or prejudice the enforcement or proper administration of the law in a particular
instance;
(b) disclose, or enable a person to ascertain, the existence or identity of a
confidential source of information, or the non- existence of a confidential
source of information, in relation to the enforcement or administration of the
law; or
(c) endanger the life or physical safety of any person.
(2) A document is an
exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(a) prejudice the fair trial of a person or the impartial adjudication of a particular
case;
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or
dealing with matters arising out of, breaches or evasions of the law the disclosure
Page 3 of 11
of which would, or would be reasonably likely to, prejudice the effectiveness of
those methods or procedures; or
(c) prejudice the maintenance or enforcement of lawful methods for the protection of
public safety.
The factors in favour of release I took into consideration under section 37 include:
• Whether the information contained in the documents was for the purpose of preventing,
detecting, investigating or dealing with matters arising out of a breach or evasion of
law;
• Whether the information was for the maintenance or enforcement of lawful methods of
investigation;
• Whether the information, if released, would prejudice the effectiveness of lawful
methods or procedures of investigation;
• Whether release would affect the lawful methods for the protection of public safety;
• The object of the FOI Act, which encourages disclosure to information held by
government agencies, subject only to certain exemptions; and
• The extent to which the information is already a matter of public knowledge.
The factors against the release of the documents under section 37 include:
• The information contained in the documents was created for the purpose of preventing,
detecting, and investigating breach or evasion of law;
• The information contained in the documents is for the maintenance or enforcement of
lawful methods of investigation;
• The information in the documents, if made public, would be likely to damage the
effectiveness of the methods and procedures used by AUSTRAC to detect, investigate
or deal with breaches or evasions of the law; and
• The information is not a matter of public knowledge.
AUSTRAC’s contribution to the administration of justice through its expertise in countering
money laundering and the financing of terrorism is well publicised. Examples of AUSTRAC’s
contribution have been made public and can be found in the
‘AUSTRAC typologies and case
studies report’.
However, the level of detail contained in the methods and procedures used by AUSTRAC to
detect and investigate breaches or evasions of law is not publicly available. The release of such
information could allow criminals or terrorists to adopt measures to circumvent these methods
and procedures.
On balance, when I consider all factors for and against disclosure of the documents, my decision
is that exempting them in full under subsection 37(2)(b) outweighs the consideration for
disclosure, particularly given that the nature of the information, if released, would prejudice the
effectiveness of methods and procedures for preventing, detecting and investigating breaches or
evasions of law.
Section 47E – Public interest conditional exemptions – certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth, by Norfolk Island or by an agency;
Page 4 of 11
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
Note:
access must generally be given to a conditionally exempt document unless it would be contrary to the
public interest (see section 11A).
The factors in favour of release I took into consideration under subsections 47E(a) and 47E(d)
include:
• Whether the information contained in the documents would prejudice the effectiveness
of a procedure or method for the conduct of a test or examination;
• Whether the information if released would have substantial adverse effect on the proper
and efficient conduct of the operations of an agency; and
• The extent to which the information is already a matter of public knowledge.
The factors against the release of the documents under subsections 47E(a) and 47E(d) include:
• The information contained in the documents would prejudice the effectiveness of a
procedure or method for the conduct of a test or examination;
• The information contained in the documents, if released, would have substantial adverse
effects on the proper and efficient conduct of the operations of an agency; and
• The information is not a matter of public knowledge.
The object of the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) is to fulfil Australia’s international obligations to combat financing of
terrorism, combat money laundering, and to address any international concerns relating to those
matters.
AUSTRAC must always be mindful of the interest of powerful criminal and terrorist
organisations in obtaining insight into AUSTRAC’s operations. If too much insight is given into
AUSTRAC’s methodologies, it heightens the risk that AUSTRAC’s operations could be
compromised or sabotaged and AUSTRAC’s intelligence products could be circumvented.
Parts of the documents cover AUSTRAC’s operations in significant detail. I consider that the
disclosure of this level of detailed information would give too great an insight into how
AUSTRAC operates and would impede effective working relationship with AUSTRAC’s
stakeholders. It would result in prejudice to the proper and efficient conduct of the agency’s
operations.
I considered all factors for and against disclosure of the relevant information and decided to
exempt the documents in full under subsections 47E(a) and 47E(d) because the factors against
release outweigh the consideration for disclosure, particularly given the detailed and
confidential nature of the information.
Exempting the documents in part under section 47F
47F Public interest conditional exemptions – personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the following
matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
Page 5 of 11
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Section 4 of the FOI Act provides that ‘personal information’ has the same meaning as in the
Privacy Act 1988. Section 6 of the Privacy Act provides that:
personal information means information or an opinion about an identified individual, or
an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
The Guidelines issued by the Office of the Australian Information Commissioner under
section 93A of the FOI Act in paragraphs [6.116] – [6.117] explain:
6.116 Personal information means information or an opinion (including information forming
part of a database), whether true or not, and whether recorded in a material form or not,
about an individual whose identity is apparent, or can reasonably be ascertained, from
the information or opinion (4 4(1)). In other words, personal information:
• identifies, or could identify, a person
• says something about a person
• may be opinion
• may form part of a database
• may be true or untrue
• relates to a natural person.
6.117 Personal information can include a person’s name, address, telephone number, date of
birth, medical records, bank account details, taxation information and signature.
I have taken the below factors taken into consideration:
• the definition of the personal information under section 4 of the FOI Act;
• the nature of the information, for example whether the disclosure would cause serious
consequences;
• the object of the FOI Act, which encourages a right of access to documents held by
government agencies, subject to certain exemptions; and
• the extent to which the information is already a matter of public knowledge and/or well
known.
I have also taken the below factors against disclosing the information into consideration:
• release of the information could reasonably be expected to prejudice the protection of
an individual’s right to privacy; and
• the information is not a matter of public knowledge and/or well known.
Having examined document 2, I am satisfied that some of the information is personal
information as it identifies a person and provides personal information about an individual.
After considering all the relevant factors, I consider that the importance of maintaining the
individual’s right to privacy outweighs the factors in favour of disclosure.
Accordingly, I have decided that part of the information contained within document 2 is
conditionally exempt under section 47F of the FOI Act.
47G Public interest conditional exemptions – business
(1) A document is conditionally exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional affairs or
Page 6 of 11
concerning the business, commercial or financial affairs of an organisation or undertaking,
in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in
respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the
Commonwealth, …
I have taken the below factors taken into consideration:
• the nature of the information and whether the disclosure would cause no serious
consequences;
• the object of the FOI Act, which encourages a right of access to documents held by
government agencies, subject to certain exemptions; and
• the extent to which the information is already a matter of public knowledge and/or well
known.
I have also taken the below factors against disclosing the information into consideration:
• the disclosure of information relating to the business, commercial or financial affairs of
the third party could be considered as unreasonable disclosure;
• the information is not a matter of public knowledge and/or well known; and
Having examined document 2, I am satisfied that releasing part of the information within the
document could involve the unreasonable disclosure of the financial or business affairs of the
third party.
After considering all the relevant factors I consider the importance of maintaining the right to
privacy of the business or financial affairs of the third party outweighs the factors in favour of
disclosure.
Accordingly, I have decided that part of the information within document 2 is conditionally
exempt under section 47G of the FOI Act.
Public interest considerations
I have considered the public interest factors for subsections 47E(a) and 47E(d) and sections 47F
and 47G of the FOI Act in my decision. My findings are as follows:
Section 11A – Access to documents on request
Scope
(1) This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an
agency or Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is
given has been paid.
(2) This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
Page 7 of 11
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a
request (see section 3A (objects—information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is
conditionally exempt at a particular time unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest.
Note 1:
Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance,
be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the
document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditionally exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
Subsection 11A(5) requires AUSTRAC to give a person access to the document if it is
conditionally exempt, unless, access to the document at that time would be on balance, contrary
to the public interest.
I considered section 11B in order to determine if access to the documents, exempt in part under
subsections 47E(a) and 47E(d) and sections 47F and 47G of the FOI Act, is contrary to the
public interest.
Section 11B – Public interest exemptions – factors
Scope
(1) This section applies for the purposes of working out whether access to a
conditionally exempt document would, on balance, be contrary to the public interest
under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
Page 8 of 11
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to
the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(aa)
access to the document could result in embarrassment to the
Government of Norfolk Island or cause a loss of confidence in the
Government of Norfolk Island;
(b) access to the document could result in any person misinterpreting or
misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary to
the public interest, an agency or Minister must have regard to any guidelines issued
by the Information Commissioner for the purposes of this subsection under
section 93A.
AUSTRAC is Australia’s anti-money laundering and counter-terrorism financing regulator. It is
a specialist financial intelligence unit and is responsible for administering the
Financial
Transaction Reports Act 1988 (FTR Act) and the AML/CTF Act. Full details about AUSTRAC
can be found at
http://www.austrac.gov.au/about-us.
The object of the AML/CTF Act is to fulfil Australia’s international obligations to combat
financing of terrorism; combat money laundering; and to address any international concerns
relating to those matters.
It is an offence under section 121 of the AML/CTF Act to release any information which was
obtained under the FTR Act or the AML/CTF Act, unless it was for a directly related purpose,
for example, in accordance of the objects of these Acts, or in performance of the AUSTRAC
CEO’s functions.
Although release of documents under the FOI Act is part of the AUSTRAC CEO’s functions,
the extensive coverage of the secrecy provisions in the AML/CTF Act, and the seriousness of
the penalties which can be imposed for breach of secrecy, indicates that Parliament intended
that the release of AUSTRAC information is not in the public interest.
The document reveals methods of analysis used in recognising organised criminal activity
directly related to AUSTRAC’s intelligence function. Therefore, I am of the view that if the
information in the document was to be made public, it would be likely to damage the
effectiveness of the methods and procedures used by AUSTRAC to detect, investigate and deal
with breaches or evasions of the law.
Releasing the documents would also prejudice the effectiveness of those methods by allowing
organised crime to adopt counter measures to defeat such analysis, and it would damage
AUSTRAC’s relations with domestic and overseas partner agencies.
Therefore, after considering all the relevant public interest factors, I have decided that granting
access to the documents would be contrary to the public interest.
Page 9 of 11
Evidence/Material on which my findings are based
In reaching my decision to release or exempt the documents in full or in part, I relied on the
following documentary evidence:
•
Freedom of Information Act 1982;
• Guidelines issued by the Australian Information Commissioner; and
• Details of the request received by the Australian Securities and Investments
Commission on 29 August 2016 and the portion subsequently transferred to AUSTRAC
on 14 July 2016.
Page 10 of 11
ATTACHMENT B
Review Rights
The following review rights apply.
Section 54 of the FOI Act gives you the right to apply for an internal review of the decision
refusing to grant access to documents. An application for a review of the decision must be made
in writing within 30 days of receipt of this letter. No particular form is required; however, it
would assist the decision maker if the application grounds on which it is considered that the
decision should be reviewed were set out.
Under section 53A of the FOI Act you may have ground for review under section 54 if you can
establish that there are other documents held by AUSTRAC which have not been released.
Applications for review of the decision should be addressed to:
Australian Transaction Reports and Analysis Centre
Freedom of Information
c/- Attorney General’s Department
3-5 National Circuit
BARTON ACT 2600
Facsimile +612 6120 2601
www.austrac.gov.au
It is not necessary to seek internal review before seeking review of the decision by the
Australian Information Commissioner.
Office of the Australian Information Commissioner
As part of the 2016-17 Budget, the OAIC has been allocated $37 million over the next four
years to fund their ongoing Privacy and Freedom of Information functions. The OAIC will
therefore remain operational and will continue to conduct Information Commissioner (IC)
reviews.
IC review applications can be made to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
xxxxxxxxx@xxxx.xxx.xx
For further information about IC reviews please refer to the OAIC website.
Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal (AAT) after the OAIC has
made a decision. The AAT may also review a decision by the OAIC not to undertake a review.
An application must be submitted to the AAT within 28 days of being notified of the decision
by the OAIC. The AAT can be contacted on 1300 366 700.
Complaints
If you are not satisfied with the way AUSTRAC has processed your Freedom of Information
request, you can complain to the OAIC. A complaint must be made in writing and must identify
AUSTRAC as the agency that made the decision. There is no particular form required to make a
request, however, the complaint should set out the grounds on which it is considered the action
taken in relation to the FOI request should be investigated. Complaints can be made to the
OAIC at the address listed above.
For up to date information please visit the OAIC website a
t https://www.oaic.gov.au.
Page 11 of 11
