Explanatory
Statement – Anti-Money Laundering and Counter-Terrorism
Financing Rules Amendment Instrument 2011 (No. 7) amending the Anti-Money
Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1)
1. Purpose
and operation of Anti-Money Laundering and Counter-Terrorism Financing Rules
(AML/CTF Rules) adding Chapters 54 to 65
1.
Section
229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
(AML/CTF Act) provides that the AUSTRAC Chief Executive Officer (AUSTRAC CEO) may,
by writing, make AML/CTF Rules prescribing matters required or permitted by any
other provision of the AML/CTF Act.
2.
Chapters
54 to 61 relate to the Combating the Financing of People Smuggling and Other
Measures Act 2011 (CFPSOM Act) and Chapters 62 to 65 relate to the Australian
Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy
(Consequential Amendments) Act 2011 (Cost Recovery Act).
Combating the
Financing of People Smuggling and Other Measures Act 2011
3.
The
CFPSOM Act is intended to reduce the risk of money transfers by remittance
dealers being used to fund people smuggling ventures and other serious crimes
by introducing a more comprehensive regulatory regime for the remittance
sector.
4.
The
Act introduces three classes of industry participants:
(a) Registered
remittance network provider – a large organisation that facilitates networks of
remittance affiliates by providing systems and services that enable their
affiliates to provide remittance services;
(b) Registered
remittance affiliate – a business that provides remittance services to
customers as part of a remittance network facilitated by a remittance network
provider; and
(c) Registered
independent remittance dealer – a business that provides remittance services to
customers using their own systems and processes, independent of a remittance
network.
Addition of
Chapter 54
5.
The
CFPSOM Act contains provisions which amend section 49 of the AML/CTF Act.
Section 49A of the AML/CTF Act states that the AML/CTF Rules may make provision
for obligations to provide reports imposed on registered remittance affiliates
to be imposed instead, or in addition, on the relevant registered remittance
network provider.
6.
Chapter
54 requires that registered remittance network providers must report threshold
transaction reports and international funds transfer instructions reports on
behalf of their registered remittance affiliates.
7.
Chapter
54 also allows remittance network providers to lodge suspicious matter reports
on behalf of their registered remittance affiliates subject to a written
agreement being in place. Although the remittance network provider may lodge a
suspicious matter report on behalf of their registered remittance affiliates,
this does not alter the requirement under the AML/CTF Act that only the
registered remittance affiliate can form the suspicion.
Addition
of Chapter 55
8.
Subsection
75(4) of the AML/CTF Act allows AML/CTF Rules to make provisions for the
correction of entries on the Remittance Sector Register (Register), the
publication of the Register and matters relating to the administration or
operation of the Register.
9.
Chapter
55 allows the AUSTRAC CEO to correct or make complete entries on the Register
if the AUSTRAC CEO believes on reasonable grounds that an entry on the Register
is incorrect or incomplete. Chapter 55 also requires the AUSTRAC CEO to
give a written notice to the relevant person setting out the changes made to
their entry on the Register and the date on which the changes were made. If
the relevant person is a registered remittance affiliate, the written notice
must also be sent to the relevant registered remittance network provider. The
AUSTRAC CEO may also publish on AUSTRAC’s website, either in full or in part,
information contained in the Register.
Addition
of Chapter 56
10.
Paragraph
75B(3)(b) of the AML/CTF Act allows AML/CTF Rules to specify information which
must be included in an application for registration by a remittance network
provider, a remittance affiliate of a registered remittance network provider or
an independent remittance dealer. In addition, subsection 75(4) of the
AML/CTF Act allows AML/CTF Rules to make provision for or in relation to
the correction of entries on the Register, the publication of the Register and
any other matter relating to the administration or operation of the Register.
11.
Chapter
56 specifies the information which must be included in an application for
registration on the Remittance Sector Register. Schedule 1 relates to
applications for registration as a remittance network provider, Schedule 2
relates to applications by remittance network providers in regard to the
registration of a remittance affiliate and Schedule 3 relates to applications
for registration as an independent remittance dealer or applications for
registration as a remittance affiliate made by an independent remittance
dealer.
12.
The
Schedules contain Part A, which specifies information to be provided to AUSTRAC
by the applicant, and Part B, which specifies information which must be obtained
and retained by the applicant but which is not required to be submitted to
AUSTRAC. The information in Part B relates to the enhanced regulation of the
remittance sector and may be relevant to whether a remitter may be at risk of facilitating
money-laundering, terrorism-financing or people smuggling.
13.
In
addition, Chapter 56 requires that the authorised individual submitting the
application on behalf of the applicant must declare that the information
provided is true, accurate and complete.
Addition
of Chapter 57
14.
Subsection
75C(2) of the AML/CTF Act allows AML/CTF Rules to specify matters which the
AUSTRAC CEO must consider in regard to the assessment of applications for
registration. The AUSTRAC CEO may also consider other non-specified matters if
they are relevant to deciding whether there is a significant level of money
laundering, terrorism financing or people smuggling risk in registering the
applicant.
15.
Chapter
57 specifies matters which the AUSTRAC CEO must have regard to in deciding
whether it is appropriate to register an applicant, including the declarations
made by the applicant’s authorised individual that are required by Chapter 56.
Addition
of Chapter 58
16.
Paragraph
75G(1)(c) of the AML/CTF Act allows the AUSTRAC CEO to cancel the registration
of a person if the AUSTRAC CEO is satisfied that it is appropriate to do so.
Subsection 75G(3) of the AML/CTF Act allows the AUSTRAC CEO to publish a list
of the names of persons whose registration has been cancelled and the date the
cancellation took effect.
17.
Chapter
58 specifies the matters that the AUSTRAC CEO must consider when deciding
whether or not to cancel the registration of a person who provides registrable
designated remittance services or registrable remittance network provider
services and also specifies that a list of the persons whose registrations have
been cancelled and the dates the cancellations took effect, may be published on
the AUSTRAC website.
Addition
of Chapter 59
18.
Subsection
75H(1) of the AML/CTF Act allows AML/CTF Rules to make provision for and in
relation to the suspension of registrations by the AUSTRAC CEO.
19.
Chapter
59 specifies the grounds on which a person may be suspended from registration
for a period of time as determined by the AUSTRAC CEO. The AUSTRAC CEO must
notify the suspended person of the decision and that person may seek a review
of the decision.
20.
Chapter
59 allows the AUSTRAC CEO to publish the notice of suspension, or extracts of
that notice, on AUSTRAC’s website or in any manner considered appropriate. The
AUSTRAC CEO may also remove a person from the Remittance Sector Register for
the period that the person’s registration is suspended.
Addition
of Chapter 60
21.
Section
75M of the AML/CTF Act requires registered persons to advise the AUSTRAC CEO of
any change in circumstances that could materially affect the person’s
registration.
22.
Chapter
60 specifies matters (as applicable) that must be notified to the AUSTRAC CEO
by a person registered as a remittance network provider, a remittance affiliate
of a registered remittance network provider that has applied for registration
on its own behalf or an independent remittance dealer, pursuant to subsection
75M(1) of the AML/CTF Act.
23.
Chapter
60 also specifies matters (as applicable) that must be notified by a registered
remittance affiliate of a registered remittance network provider to that
registered remittance network provider, pursuant to subsection 75M(2) of the
AML/CTF Act. Such material changes must be notified to the AUSTRAC CEO by the
registered remittance network provider.
Addition
of Chapter 61
24.
Item
50(1) of Part 2 of Schedule 1 of the CFPSOM Act allows AML/CTF Rules to make
provision for and in relation to threshold transaction reports (TTRs),
international funds transfer instructions reports (IFTIs) and suspicious matter
reports (SMR), required by the AML/CTF Act to be given by a remittance
affiliate.
25.
Chapter
61 provides that an obligation on a remittance affiliate, who is not yet
on the Remittance Sector Register but is on the Register of Providers of
Designated Remittance Services, in regard to a TTR or IFTI is instead an obligation
on the remittance network provider. Under Chapter 61 a suspicious matter
reporting obligation upon a remittance affiliate, in regard to the requirement
of submitting a report to AUSTRAC, may be undertaken by the remittance network
provider when there is a written agreement between the affiliate and the
provider.
Australian
Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy
(Consequential Amendments) Act 2011
26.
The
Cost Recovery Act is part of a legislative package comprising the Cost Recovery
Act, the Australian Transaction Reports and Analysis Centre Supervisory Cost
Recovery Levy Act 2011 and the Australian Transaction Reports and
Analysis Centre Supervisory Cost Recovery Levy (Collection) Act 2011, which
give effect to the 2010-11 Budget announcement that AUSTRAC would recover
the costs of its supervisory activities from the 2011-12 financial year.
27.
The
Cost Recovery Act amends the AML/CTF Act to create a Reporting Entities Roll
and makes it mandatory for relevant reporting entities to enrol with AUSTRAC. The
efficient and effective collection of the levy requires AUSTRAC to be able to
identify and invoice leviable entities. The data used by AUSTRAC to calculate
the levy each year must accurately reflect the number of reporting entities and
their status as leviable entities.
Addition
of Chapter 62
28.
Subsection
51C(4) of the AML/CTF Act allows AML/CTF Rules to be made in relation to the
correction of entries on the Reporting Entities Roll (the Roll) and any other
matter relating to the administration or operation of the Roll, including the
removal of names and enrolment details.
29.
Chapter
62 allows the AUSTRAC CEO to correct an entry on the Roll if the AUSTRAC CEO
considers on reasonable grounds that an entry on the Roll is incorrect or
incomplete or the person no longer provides a designated service. The Chapter
lists matters that may be considered by the AUSTRAC CEO when determining
whether a person continues to provide a designated service.
30.
The
AUSTRAC CEO must, if possible, provide notice to the person setting out the
change to the entry or reasons for removing the entry and the date on which the
change or removal was made.
Addition
of Chapter 63
31.
Paragraph
51E(2)(b) of the AML/CTF Act relates to information which must be included in
an application for enrolment on the Reporting Entities Roll by a person who is
proposing to provide, or has commenced to provide, a designated service or
services.
32.
Chapter
63 specifies the information which must be provided to AUSTRAC or obtained and
retained by a person applying for enrolment. Part A of the Schedule to Chapter
63 sets out the information which a person must provide to AUSTRAC in their
application for enrolment. Part B of the Schedule sets out the information
which a person must obtain and retain relating to their application for
enrolment; however, applicants are not required to submit this information to
AUSTRAC.
33.
Part
B information relates to the annual financial statements of the person, details
in regard to the legal structure of the applicant and any written agreement
between the person and the agent acting on their behalf. This information may
be requested by AUSTRAC in regard to setting the appropriate levy or in
determining precisely the legal nature of the reporting entity/leviable entity
making the application.
34.
In
addition, Chapter 63 requires that the authorised individual submitting the
application on behalf of the applicant must declare that the information
provided is true, accurate and complete.
Addition
of Chapter 64
35.
Subsection
51F(1) of the AML/CTF Act allows AML/CTF Rules to be made that specify matters
that a person must report to the AUSTRAC CEO regarding changes to the enrolment
details of the person.
36.
Chapter
64 specifies that a person must report to the AUSTRAC CEO any change in the
person’s enrolment details set out in Part A of the Schedule to Chapter 63,
including any updated annual earnings figures. A request for change of a
person’s enrolment details may be made by the person, an agent of the person or
a person who has authority to make the request where the person or agent of the
person cannot make the request, in circumstances such as the incapacity of the
person to manage their affairs.
Addition
of Chapter 65
37.
Paragraph
51G(2)(b) of the AML/CTF Act relates to the removal of entries from the
Reporting Entities Roll and allows AML/CTF Rules to specify information which
must be provided by a person in their request to the AUSTRAC CEO to remove
their name and enrolment details from the Roll.
38.
Chapter
65 specifies the information which must be included in a request to remove a
person’s name and enrolment details from the Roll. The Chapter also requires
that the authorised individual submitting the request on behalf of the person
must declare that the information provided is true, accurate and complete. A
request for removal may be made by the person, an agent of the person or a
person who has authority to make the request where the person or agent of the
person cannot make the request, in circumstances such as the incapacity of the
person to manage their affairs.
2. Notes on sections
Section
1
This
section sets out the name of the instrument, i.e. the Anti-Money Laundering
and Counter-Terrorism Financing Rules Amendment Instrument 2011 (No.7).
Section
2
This
section specifies that the Instrument commences on 1 November 2011. This is the
proclamation date in respect to commencement of certain sections of the CFPSOM
and Cost Recovery Acts. These AML/CTF Rules also commence on 1 November 2011,
in order to allow reporting entities to enrol on the Reporting Entities Roll,
in the 28 day period specified in the Cost Recovery Act.
Section
3
This
section contains the details of the amendment:
Schedule
1 amends the Anti-Money Laundering and Counter-Terrorism Financing Rules
Instrument 2007 (No.1).
Schedule
1
This schedule adds Chapters
54 to 65.
3. Notes on Paragraphs
Chapter 54
Paragraph 54.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsections 49A(1) and 49A(2) of that Act and
rely upon section 4 of the Acts Interpretation Act 1901 with respect to
provisions of the Act which will commence on 1 November 2011.
Paragraph 54.2
This paragraph
specifies that an obligation imposed by subsection 43(2) or 45(2) of the
AML/CTF Act on a registered remittance affiliate is taken instead to be an
obligation imposed upon, and must be discharged by, the registered remittance
network provider.
Paragraph 54.3
This paragraph
specifies that a suspicious matter reporting obligation imposed by subsection
41(1) of the AML/CTF Act on a registered remittance affiliate in regard to the
submitting of a report to AUSTRAC may be met by the registered remittance
network provider under a written agreement between the affiliate and the
provider.
Chapter 55
Paragraph 55.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the AML/CTF
Act for the purposes of subsection 75(4) of that Act and rely upon section 4 of
the Acts Interpretation Act 1901 with respect to provisions of the Act
which will commence on 1 November 2011. This Chapter comes into effect on the
date that section 75 of the Act comes into effect, which is 1 November 2011.
Paragraph 55.2
This paragraph
specifies that the AUSTRAC CEO may correct or make complete an entry on the
Remittance Sector Register (Register) if the AUSTRAC CEO believes on reasonable
grounds that the entry is incorrect or incomplete.
Paragraph 55.3
This paragraph
specifies that if the AUSTRAC CEO corrects or makes complete a person’s entry
on the Register, the AUSTRAC CEO must give written notice to the person.
Paragraph 55.4
This paragraph
specifies that if the AUSTRAC CEO corrects or makes complete an entry of a
registered remittance affiliate on the Register, the AUSTRAC CEO must also give
written notice to the registered remittance network provider of the registered
remittance affiliate.
Paragraph 55.5
This paragraph
specifies that the AUSTRAC CEO may publish any or all of the information on the
Register on AUSTRAC’s website.
Chapter 56
Paragraph 56.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the AML/CTF
Act for the purposes of subsection 75(4) and paragraph 75B(3)(b) of that
Act and rely upon section 4 of the Acts Interpretation Act 1901 in
respect to provisions of the Act which will commence on 1 November 2011. This
Chapter comes into effect on the date that section 75B of the Act comes into
effect, which is 1 November 2011.
Paragraph 56.2
This paragraph
specifies that an application by a person for registration as a remittance
network provider must be made by an authorised individual. The application
must contain the information set out in Part A of Schedule 1 of the Chapter and
include declarations made by the authorised individual.
Paragraph 56.3
This paragraph
specifies that an application made by a registered remittance network provider
for another person to be registered as a remittance affiliate must be made by
an authorised individual of the registered remittance network provider. The
application must contain the information set out in Part A of Schedule 2 of the
Chapter and include declarations made by the authorised individual.
Paragraph 56.4
This paragraph
specifies that an application by a person for registration as an independent
remittance dealer must be made by an authorised individual. The application
must contain the information set out in Part A of Schedule 3 of the Chapter and
include declarations made by the authorised individual.
Paragraph 56.5
This paragraph
specifies that an application by an independent remittance dealer for
registration as a remittance affiliate must be made by an authorised
individual. The application must contain the information set out in Part A of
Schedule 3 of the Chapter and include declarations made by the authorised
individual.
Paragraph 56.6
This paragraph
specifies that a reference to being convicted of an offence in this Chapter
includes a reference to a person in respect of whom an order has been made
under section 19B of the Crimes Act 1914 or an equivalent provision.
Paragraph 56.7
This paragraph
specifies that the spent convictions scheme under Part VIIC of the Crimes
Act 1914 applies so that spent convictions are not required to be disclosed
under this Chapter. Spent convictions are defined in section 85ZM of the Crimes
Act 1914. A person’s conviction of an offence is spent if the person has
been granted a pardon for a reason other than that the person was wrongly
convicted of the offence or the person was not sentenced to imprisonment for
the offence, or was not sentenced to imprisonment for the offence for more than
30 months, and the waiting period for the offence has ended.
Paragraph 56.8
This paragraph
defines the terms ‘associated entity’, ‘authorised individual’, ‘beneficial
owner’, ‘body’, ‘company’, ‘control’, ‘destination’, ‘disclosable convictions’,
‘employee due diligence program’, ‘enforcement action’, ‘entity’, ‘fraud’, ‘key
personnel’, ‘National Police Certificate’, ‘people smuggling’, ‘person’,
‘serious offence’, ‘subsidiary’ and ‘terrorism’.
Paragraph 56.9
This paragraph
identifies terms which have the same meaning as in Chapter 1 of the AML/CTF
Rules.
Schedule 1
Part A
This Part
contains a list of information which a person applying for registration as a
remittance network provider must provide to AUSTRAC. The information requested
includes details of the person, the contact details of the person and its key
personnel, the nature of the person’s business and whether it is part of a
related bodies corporate. Collecting this information will enable AUSTRAC to
identify its regulated population within the remittance sector. This Part also
requests information regarding whether the applicant or any of its key
personnel have been charged, prosecuted and/or convicted in relation to certain
offences. Collecting this information is relevant to the AUSTRAC CEO’s
determination of whether registering the applicant would involve a significant
level of money laundering, terrorism financing or people smuggling risk.
Part B
This Part
contains a list of information which must be obtained and retained by a person
applying for registration as a remittance network provider. Applicants are not
required to submit this information to AUSTRAC unless AUSTRAC requests it. The
information to be obtained and retained includes National Police Certificates
for each of the key personnel of the applicant and more detailed information
relating to the applicant. Applicants are required to obtain and retain this
information as part of AUSTRAC’s enhanced regulation of the remittance sector.
Schedule 2
Part A
This Part
contains a list of information which a registered remittance network provider
must provide to AUSTRAC in its application for registration of a remittance
affiliate. The information requested includes details of the remittance
affiliate, the contact details of the remittance affiliate and its key
personnel, the nature of the remittance affiliate’s business and whether it is
part of a related bodies corporate. Collecting this information will enable
AUSTRAC to identify its regulated population within the remittance sector.
This Part also requests information regarding whether the remittance affiliate
or any of its key personnel have been charged, prosecuted and/or convicted in
relation to certain offences. Collecting this information is relevant to the
AUSTRAC CEO’s determination of whether registering the remittance affiliate
would involve a significant level of money laundering, terrorism financing or
people smuggling risk.
Part B
This Part
contains a list of information which must be obtained and retained by a registered
remittance network provider applying for registration of a remittance
affiliate. The registered remittance network provider is not required to submit
this information to AUSTRAC unless AUSTRAC requests it. The information to be
obtained and retained includes National Police Certificates for each key
personnel of the remittance affiliate and the report of the most recent due
diligence assessment carried out by the registered remittance network provider
of the suitability of the remittance affiliate to be a remittance affiliate of
the registered remittance network provider. This Part also requires the
registered remittance network provider to retain its consent for the other
person to be registered as a remittance affiliate of it and to obtain and
retain more detailed information relating to the remittance affiliate.
The information
required to be obtained relates to the enhanced AML/CTF regulation of the
remittance sector. In particular, registered remittance network providers must
conduct due diligence assessments of their remittance affiliates to assess
their suitability to be remittance affiliates. It is intended that the
registered remittance network provider will assess the money laundering,
terrorism financing risk associated with the affiliate, assess the affiliate’s employees
and conduct ongoing customer due diligence as required. It is also intended
that any other due diligence which the registered remittance network provider
considers is appropriate should also be undertaken as a result of applying the
risk-based approach.
Schedule 3
Part A
This Part
contains a list of information which must be provided to AUSTRAC by a person
applying for registration as an independent remittance dealer or an independent
remittance dealer applying for registration as a remittance affiliate. The
information requested includes details of the person, the contact details of
the person and its key personnel, the nature of the person’s business and
whether it is part of a related bodies corporate. Collecting this information
will enable AUSTRAC to identify its regulated population within the remittance
sector. This Part also requests information regarding whether the applicant or
any of its key personnel have been charged, prosecuted and/or convicted in
relation to certain offences. Collecting this information is relevant to the
AUSTRAC CEO’s determination of whether registering the applicant would involve
a significant level of money laundering, terrorism financing or people
smuggling risk.
Part B
This Part
contains a list of information which must be obtained and retained by a person
applying for registration as an independent remittance dealer or an independent
remittance dealer applying for registration as a remittance affiliate.
Applicants are not required to submit this information to AUSTRAC unless
AUSTRAC requests it. The information to be obtained and retained includes
National Police Certificates for each key personnel of the applicant, consent
from the registered remittance network provider for the independent remittance
dealer to register as a remittance affiliate of the registered remittance
network provider (if applicable) and more detailed information relating to the
applicant. Applicants are required to obtain and retain this information as
part of the enhanced regulation of the remittance sector.
Chapter 57
Paragraph 57.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsection 75C(2) of that Act and rely upon
section 4 of the Acts Interpretation Act 1901 in respect to provisions
of the Act which will commence on 1 November 2011. This Chapter comes into
effect on the date that section 75C of the Act comes into effect, which is 1
November 2011.
Paragraph 57.2
This paragraph
specifies that the AUSTRAC CEO must consider the matters specified in paragraph
57.2 in determining whether to register an applicant.
Paragraph 57.3
This paragraph
specifies that the AUSTRAC CEO must have regard to the information and
declarations set out in Chapter 56.
Chapter 58
Paragraph 58.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of paragraph 75G(1)(c) and subsection 75G(3) of
that Act and rely upon section 4 of the Acts Interpretation Act 1901 in
respect to provisions of the Act which will commence on 1 November 2011. This
Chapter comes into effect on the date that section 75G of the Act comes into
effect, which is 1 November 2011.
Paragraph 58.2
This paragraph
specifies that the AUSTRAC CEO must have regard to the matters specified in the
Schedule to the Chapter in deciding whether to cancel a person’s registration.
Paragraph 58.3
This paragraph
specifies that the AUSTRAC CEO may publish a list of the names of persons whose
registrations have been cancelled and the dates the cancellations took effect.
Paragraph 58.4
This paragraph
defines the terms ‘beneficial owner’, ‘enforcement action’, ‘fraud’, ‘key
personnel’, ‘people smuggling’, ‘person’, ‘serious offence’ and ‘terrorism’.
Schedule
This Schedule
specifies the mattes which the AUSTRAC CEO must have regard to in deciding
whether to cancel a person’s registration. The specified matters are whether
the person or any of its key personnel have been charged, prosecuted and/or
convicted of certain offences, the report of the most recent due diligence
assessment carried out on the person by the registered remittance network
provider (if applicable) and whether the information provided in the
application for registration was not true and correct at the time the
application was made. AUSTRAC considers that these matters are relevant to
determining whether the continued registration of the person is a significant
money laundering, terrorism financing or people smuggling risk.
Chapter 59
Paragraph 59.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsection 75H(1) of that Act and rely upon
section 4 of the Acts Interpretation Act 1901 in respect to provisions
of the Act which will commence on 1 November 2011. This Chapter comes into
effect on the date that section 75H of the Act comes into effect, which is 1
November 2011.
Paragraph 59.2
This paragraph
specifies that the AUSTRAC CEO may suspend the registration of a person for a
specified period, subject to paragraphs 59.3, 59.4 and 59.5.
Paragraph 59.3
This paragraph
specifies the grounds for suspending a person’s registration.
Paragraph 59.4
This paragraph
specifies that if the AUSTRAC CEO decides to suspend the registration of a
person, the AUSTRAC CEO must give written notice to that person. The paragraph
also sets out what the notice must contain.
Paragraph 59.5
This paragraph
specifies that a suspension cannot commence before the suspension date
specified in the written notice.
Paragraph 59.6
This paragraph
specifies that the AUSTRAC CEO may publish notices of suspension.
Paragraph 59.7
This paragraph
specifies that the AUSTRAC CEO may inform a registered remittance network
provider of the suspension of one of its registered remittance affiliates and
it may inform a registered remittance affiliate of the suspension of its
registered remittance network provider.
Paragraph 59.8
This paragraph
specifies that the AUSTRAC CEO may remove a person’s entry from the Register
for the period that their registration is suspended.
Paragraph 59.9
This paragraph
specifies that a reference to being convicted of an offence in this Chapter
includes a reference to a person in respect of whom an order has been made
under section 19B of the Crimes Act 1914 or an equivalent provision.
Paragraph 59.10
This paragraph
defines the terms ‘beneficial owner’, ‘enforcement action’, ‘fraud’, ‘key
personnel’, ‘people smuggling’, ‘person’, ‘serious offence’ and ‘terrorism’.
Chapter 60
Paragraph 60.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of paragraph 75M(1)(e) and 75M(2)(b) of that Act
and rely upon section 4 of the Acts Interpretation Act 1901 in respect
to provisions of the Act which will commence on 1 November 2011. This Chapter
comes into effect on the date that section 75M of the Act comes into effect,
which is 1 November 2011.
Paragraph 60.2
This paragraph
specifies as material any change in the registration details of the person as
set out in Part A of Schedules 1, 2 and 3 of Chapter 56, excluding any change
to the information specified in paragraph 19 of Part A of Schedules 1, 2 and
3. This paragraph specifies examples of material changes which a person must
advise the AUSTRAC CEO of. AUSTRAC has provided these as a guide to reporting
entities of the types of changes in circumstances which must be advised to the
AUSTRAC CEO.
Paragraph 60.3
This paragraph
specifies that a person (the requestor) who is not the person registered on the
Register or an agent of that person may advise the AUSTRAC CEO of a material
change in person’s registration details if the requestor provides evidence that
they are authorised to do so.
Paragraph 60.4
This paragraph
specifies matters which a registered remittance affiliate of a registered
remittance network provider must advise the provider. The Paragraph specifies
as material any change in the registration details of the person as set out in
Part A of Schedules 1, 2 and 3 of Chapter 56, excluding any change to the
information specified in paragraph 19 of Part A of Schedules 1, 2 and 3. This
paragraph specifies examples of material changes which an affiliate must advise
their provider of. AUSTRAC has provided these as a guide to affiliates of the
types of changes in circumstances which must be advised to the provider.
Paragraph 60.5
This paragraph
specifies that a person (the requestor) who is not the person registered on the
Register or an agent of that person may advise the AUSTRAC CEO of a material
change in person’s registration details if the requestor provides evidence that
they are authorised to do so.
Paragraph 60.6
This paragraph
specifies that the spent convictions scheme under Part VIIC of the Crimes
Act 1914 applies so that spent convictions are not required to be disclosed
under this Chapter. Spent convictions are defined in section 85ZM of the Crimes
Act 1914. A person’s conviction of an offence is spent if the person has
been granted a pardon for a reason other than that the person was wrongly
convicted of the offence or the person was not sentenced to imprisonment for
the offence, or was not sentenced to imprisonment for the offence for more than
30 months, and the waiting period for the offence has ended.
Paragraph 60.7
This paragraph
defines the terms ‘control’, ‘enforcement action’, ‘entity’, ‘key personnel’
and ‘subsidiary’.
Chapter 61
Paragraph 61.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of items 50(1) and 50(2) of Part 2 of Schedule 1
of the Combating the Financing of People Smuggling and Other Measures Act
2011.
Paragraph 61.2
This paragraph
specifies that a threshold transaction report or international funds transfer instructions
report obligation on the remittance affiliate, is an obligation on the
remittance network provider, and therefore the report must be submitted by the
provider to AUSTRAC.
Paragraph 61.3
This paragraph
specifies that the remittance network provider may submit a suspicious matter
report on behalf of the remittance affiliate.
Paragraph 61.4
This paragraph
provides definitions of ‘remittance affiliate’ and remittance network
provider’.
Chapter 62
Paragraph 62.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsection 51C(4) of that Act and rely upon
section 4 of the Acts Interpretation Act 1901 in respect to provisions
of the Act which will commence on 1 November 2011. This Chapter comes into
effect on the date that section 51C of the Act comes into effect, which is 1
November 2011.
Paragraph 62.2
This paragraph
specifies that the AUSTRAC CEO may correct or complete an entry on the Roll.
Paragraph 62.3
This paragraph
specifies that if the AUSTRAC CEO takes this action, a notice must be sent to
the reporting entity.
Paragraph 62.4
This paragraph
specifies that the AUSTRAC CEO may remove an entry from the Roll.
Paragraph 62.5
This paragraph
details matters that the AUSTRAC CEO may take into account in deciding whether
to remove a reporting entity’s details from the Roll.
Paragraph 62.6
This paragraph
specifies that the AUSTRAC CEO must give a notice to the person whose details
have been taken off the Roll, or if the person is deceased, to the
administrator of that person’s estate.
Chapter 63
Paragraph 63.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsection 51C(4) and paragraph 51E(2)(b) of that
Act and rely upon section 4 of the Acts Interpretation Act 1901 in
respect to provisions of the Act which will commence on 1 November 2011. This
Chapter comes into effect on the date that sections 51E and 51C of the Act come
into effect, which is 1 November 2011.
Paragraph 63.2
This paragraph
specifies that the enrolment details are contained in Part A of the Schedule to
the Chapter.
Paragraph 63.3
This paragraph
specifies that a person making an application must declare that the information
provided to AUSTRAC and the information obtained and retained by the applicant,
is true, accurate and complete.
Paragraph 63.4
This paragraph
specifies that an application may be made by an agent of the person if there is
a written agreement or written authority in place between the agent and the
person. The agent making the application must declare that the information is
true, accurate and complete.
Paragraph 63.5
This paragraph defines
the terms ‘annual financial statements’, ‘Australian Government Entity’, ‘authorised
individual’, ‘beneficial owner’, ‘company’, ‘consolidated documents’,
‘earnings’, ‘employee’, ‘financial report’, ‘foreign company’, ‘group of
leviable entities’, ‘ultimate holding company’, ‘leviable entity’, ‘levy’,
‘person’, ‘Registered Financial Corporation’, ‘related bodies corporate’,
‘significant items’ and ‘subsidiary’.
Paragraph 63.6
This paragraph
specifies that certain terms have the same meaning as in Chapter 1 of the
AML/CTF Rules.
Schedule
Part A
This Part sets
out the information which must be provided (where applicable) to AUSTRAC in
regard to enrolment on the Reporting Entities Roll. The information will ensure
that accurate information is held by AUSTRAC with respect to reporting entities
which are obliged to pay the levy under the Cost Recovery Legislation.
Part B
This Part sets
out information that must be obtained and retained by the reporting entity.
This information will ensure that the relevant legal persons of the leviable
entity are accurately identified.
Chapter 64
Paragraph 64.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of subsection 51F(1) of that Act and rely upon
section 4 of the Acts Interpretation Act 1901 in respect to provisions
of the Act, which will commence on 1 November 2011. This Chapter comes into
effect on the date that section 51F of the Act comes into effect, which is 1
November 2011.
Paragraph 64.2
This paragraph
specifies what must be notified to the AUSTRAC CEO in regard to changes in
enrolment details of the reporting entity.
Paragraph 64.3
This paragraph
specifies that notification of changes in details may be made by an agent of
the person if there is a written agreement or written authority in place
between the agent and the person. The agent must declare in the notification
that the information provided is true, accurate and complete.
Paragraph 64.4
This paragraph
specifies that the notification of change may be made by a person (the
requestor) who is not the reporting entity or an agent of the reporting entity,
in circumstances where the person no longer has the capacity to manage their
affairs or where the corporate body ceases to exist, if the requestor provides
evidence that they are authorised to do so.
Chapter 65
Paragraph 65.1
This paragraph
specifies that these AML/CTF Rules have been made under section 229 of the
AML/CTF Act for the purposes of paragraph 51G(2)(b) of that Act and rely upon
section 4 of the Acts Interpretation Act 1901 in respect to provisions of
the Act which will commence on 1 November 2011. This Chapter comes into effect
on the date that section 51G of the Act comes into effect, which is 1 November
2011.
Paragraph 65.2
This paragraph
specifies that a request in regard to the removal of a person’s name and enrolment
details by the person must contain the information contained in the Schedule to
the Chapter.
Paragraph 65.3
This paragraph
specifies that requests for the removal of names and enrolment details may be
made by an agent of the person if there is a written agreement or written
authority in place between the agent and the person. The agent must declare in
the notification that the information is true, accurate and complete.
Paragraph 65.4
This paragraph
specifies that requests for the removal of names and enrolment details may be
made by a person (the requestor) who is not the reporting entity or an agent of
the reporting entity, in circumstances where the person no longer has the
capacity to manage their affairs or where the corporate body ceases to exist,
if the requestor provides evidence that they are authorised to do so.
Paragraph 65.5
This paragraph
defines the terms ‘authorised individual’, ‘beneficial owner’, ‘company’,
‘employee’ and ‘person’.
Schedule
This Schedule
sets out the information that must be provided in a request for removal of a
person from the Reporting Entities Roll.
4. Legislative
instruments
These AML/CTF Rules are legislative
instruments as defined in section 5 of the Legislative Instruments Act 2003.
5. Likely impact
These AML/CTF Rules will have an impact
on any reporting entity that provides a designated service covered by these
AML/CTF Rules.
6. Assessment of benefits
Chapters
54 to 61
The
AML/CTF Rules relating to the CFPSOM Act (Chapters 54 to 61) will support
amendments to the AML/CTF Act to strengthen the Commonwealth legislative
framework on the regulation of remittance dealers and remittance network
providers. The remittance sector is recognised by the international anti-money
laundering and counter-terrorism financing community, and domestically by law
enforcement and national security authorities, as being vulnerable to money
laundering and terrorism financing.
The
CPFSOM Act amended the AML/CTF Act to require providers of remittance networks,
their affiliates and independent remittance dealers to be registered with
AUSTRAC. The AML/CTF Rules facilitate the registration scheme introduced by the
AML/CTF Act, which requires a person seeking registration on the Remittance
Sector Register to provide the AUSTRAC CEO with information relevant to their
suitability for registration, and to allow the AUSTRAC CEO to obtain
information from other persons for the purposes of determining whether the
person is suitable to be registered. The AML/CTF Rules also set out matters that
the AUSTRAC CEO may consider in determining whether to refuse, suspend, cancel
or impose conditions on the registration of a remittance network provider,
remittance affiliate or independent remittance dealer. The AML/CTF Rules also
provide a benefit to reporting entities providing designated remittance services
as AUSTRAC’s assessment of the suitability of applicants to register on the
Remittance Sector Roll will ensure that such reporting entities are less
vulnerable to money-laundering, terrorism-financing and people smuggling risk
as a result of that assessment.
These
AML/CTF Rules support the intent of the CPFSOM Act to reduce the risk of money
transfers by remittance dealers being used to fund people smuggling ventures
and other serious crimes by introducing a more comprehensive regulatory regime
for the remittance sector.
Chapters
62 to 65
Chapters
62 to 65 of the AML/CTF Rules relate to the Cost Recovery Act. The AML/CTF
Rules facilitate the collection and maintenance of reporting entities’
enrolment and earnings details on the Reporting Entities Roll. The AML/CTF
Rules allow AUSTRAC to correctly identify and invoice leviable entities, which
enables AUSTRAC to efficiently and effectively collect the levy.
7. Consultation
AUSTRAC has consulted with the
Australian Taxation Office, the Australian Customs and Border Protection
Service, the Australian Federal Police, the Australian Crime Commission and the
Office of the Australian Information Commissioner in relation to these AML/CTF
Rules.
AUSTRAC also published the draft AML/CTF
Rules relating to the CFPSOM Act on AUSTRAC’s website for public consultation,
with one Rule (Chapter 56) being published a second time, due to the
substantial changes made to the Chapter as a result of the first period of
public consultation. The draft AML/CTF Rules relating to the Cost Recovery Act
were published on AUSTRAC’s website for a period of public consultation.
8. Ongoing consultation
AUSTRAC will conduct ongoing
consultation with stakeholders on the operation of these AML/CTF Rules.