Question details
Financial discrimination
(1102) My adjournment matter today is for the attention of the Attorney-General and is related to the issue of de-banking. I raised this issue a couple of times during the last term of Parliament. It is an issue that affects sex workers, bitcoin traders, gold bullion dealers, firearm dealers and others. It is also not unique to Australia, and as with other jurisdictions it is usually tied to anti-money laundering and terrorism financing laws. These laws create a risk-averse environment, particularly when poorly drafted. Our federal laws are indeed poorly drafted, particularly section 235 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. This was noted nearly 20 years ago by the Australian Human Rights Commission, which identified the possibility of this clause enabling discrimination.
Matthew Roberts, a sex worker here in Victoria, recently concluded legal action against Mint Payments and First Data Merchant Solutions in the Magistrates’ Court, with Maurice Blackburn acting on his behalf. This was enabled by this government’s reforms last term which made it illegal to discriminate on the basis of employment. In other words, the laws here are working – but it should not be this hard. Libertarians believe that the free consensual trade of goods and services is the pathway to a prosperous society that allows people to benefit from their ideas and their labour. For sex workers this is not just about financial wellbeing; it exposes them to significant risk. If they are dishonest in banking applications due to concern about being de-banked, it makes it harder to initiate a chargeback if a client makes a fraudulent payment, which let us remember under recent Victorian law meets the definition of a sex crime. Despite the law changes in Victoria, the issue persists.
Other cases that have occurred throughout Australia involving sex workers or bitcoin traders have all involved section 235 of the federal money laundering and counterterrorism act. There may be hope, though. The federal Attorney-General’s office is currently reviewing these laws, with over 100 submissions published on their website just today. As you would expect, several of these were from bitcoin enthusiasts. Libertarians are generally not in favour of more regulations, but in this circumstance we currently do not have a bitcoin economy that can provide an alternative pathway for meaningful financial transactions. Without digital merchant services and digital banking it can become very difficult to conduct trade. Whilst I do not have any particular insight into what the federal government is proposing, it is possible that they have already identified this issue and are proposing solutions. In the interests of ensuring that this issue is adequately addressed, my request for the Attorney-General is to consider the impact on Victorians and write to her federal colleague to request a meeting or simply to request that section 235 is addressed in future proposed legislation.
I thank the member for raising this matter.
The Victorian Parliament passed laws decriminalising sex work in 2022, ensuring sex workers in Victoria have the same protections and recognition as any other worker in the state. Amendments made to Victoria’s Equal Opportunity Act 2010 as part of those reforms makes it unlawful to discriminate against someone on the basis of their profession, trade or occupation.
In response to the member’s request, the Department of Justice and Community Safety (DJCS) contacted the Commonwealth Attorney-General’s Department to enquire on the status of work being undertaken to modernise the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) and operation of section 235 of that Act.
DJCS is advised that on the 12 September 2024, the Commonwealth Attorney-General introduced the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 into the Commonwealth Parliament. The Bill does not include any amendments to section 235 of the AML/CTF Act.
Under AML/CTF laws, entities may withdraw or limit their services if they consider an account to be higher risk. Where an entity’s internal risk controls identify an account as presenting a higher risk, Commonwealth law requires an enhanced level of due diligence and screening. However, this does not prevent entities from establishing business relationships with higher‑risk customers.
In June 2023, AUSTRAC released guidance on debanking designed to:
- help entities understand AUSTRAC’s expectations when providing designated services to businesses they consider higher risk (including the sex work industry and digital currency exchanges); and
- encourage businesses in affected sectors to engage openly with financial institutions and demonstrate the steps they are taking to address risks within their business.
AUSTRAC’s guidance outlines that federal, state, and territory anti-discrimination laws may apply to decisions about starting, continuing, or stopping designated services. Relevantly, the Explanatory Memorandum to the AML/CTF Act clarifies that the liability protection under section 235 of the Act—granted when a reporting entity acts in good faith—does not override anti-discrimination laws. This includes protections under Victoria’s Equal Opportunity Act.
Jaclyn Symes MP
Attorney-General
Minister for Emergency Services