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Financial Transactions Reporting (Amendment) Act 2005

Commencement: 24 February 2006

REPUBLIC OF VANUATU

THE FINANCIAL TRANSACTIONS REPORTING (AMENDMENT) ACT
NO. 28 OF 2005

Arrangement of Sections

1 Amendment
2 Commencement

--------------------------------

REPUBLIC OF VANUATU

Assent: 30/12/05
Commencement: 24/02/06

THE
FINANCIAL TRANSACTIONS REPORTING (AMENDMENT) ACT NO. 28 OF 2005

An Act to amend the Financial Transactions Reporting Act No. 33 of 2000

Be it enacted by the President and Parliament as follows-

Amendment

The Financial Transactions Reporting Act No. 33 of 2000 is amended as set out in the Schedule.

Commencement

(1) Subject to subsection (2), this Act commences on the date on which it is published in the Gazette.

(2) Item 17 of the Schedule commences on 1 September 2006.

SCHEDULE

AMENDMENTS OF THE FINANCIAL TRANSACTIONS REPORTING ACT NO. 33 OF 2000

1 Section 1

Insert the following definitions in their correct alphabetical positions:

“assisting entity means

(a) a law enforcement agency or supervisory body outside Vanuatu or any other institution or agency of the relevant foreign state; or

(b) an international organization established by the governments of foreign states; or

(d) a law enforcement agency or supervisory body within Vanuatu;

currency means the cash of Vanuatu or of a foreign country that is designated as legal tender and which is customarily used and accepted as a medium of exchange in the country of issue.

customer in relation to a transaction or an account includes:

(a) the person in whose name the transaction or account is arranged, opened or undertaken; and

(b) a signatory to the transaction or account; and

(d) any person who is authorised to conduct the transaction; and

(e) such other persons prescribed for the purposes of this definition.

data means representations, in any form, of information or concepts.

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them; and

(d) a map, plan, drawing, photograph or similar thing; and

(e) a document in electronic form.

financing of terrorism offence means an offence against section 6 of the Counter Terrorism and Transnational Organised Crime Act No. 29 of 2005.

law enforcement agency means:

(a) the Vanuatu Police Force; or

(b) a police force outside of Vanuatu; or

(d) such other persons prescribed for the purposes of this definition.

Minister means the Minister responsible for justice.

money laundering entity means a person or group prescribed under section 17B.

occasional transaction means a transaction that is conducted by any person otherwise than through an account in respect of which the person is the account holder.

person includes any statutory body, company or association or body of persons corporate or unincorporated.

prescribed entity means:

(a) a specified entity within the meaning of the Counter Terrorism and Transnational Organised Crime Act No. 29 of 2005; or

(b) a money laundering entity.

property includes:

(a) currency; and

(b) assets of any kind, whether corporeal or incorporeal, moveable or immovable, tangible or intangible; and

(c) legal documents or instruments in any form including electronic or digital, evidencing title to, or interest in, such assets, including but not limited to bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of credit; and

(d) any legal or equitable interest in any such property.

record means any material on which information is recorded or marked and which is capable of being read or understood by a person, computer system or other device.

serious offence means:

(a) an offence against a law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months; or

(b) an offence against the law of another country that, if the relevant act or omission had occurred in Vanuatu, would be an offence against the law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months.

supervisory body means:

(a) the Reserve Bank of Vanuatu; or

(b) the Vanuatu Financial Services Commission; or

(c) a body outside Vanuatu with functions similar to the Reserve Bank of Vanuatu or the Vanuatu Financial Services Commission; or

(d) such other persons prescribed for the purposes of this definition.

terrorist property has the same meaning as in the Counter Terrorism and Transnational Organised Crime Act No. 29 of 2005.”.

Section 1 (definitions of money laundering offence and suspicious transaction reports)

Repeal the definitions, substitute

“money laundering offence means an offence against section 11 of the Proceeds of Crime Act No. 13 of 2002.

suspicious transaction report means a report prepared under Part 2.”.

3 Subparagraphs 2(j)(i) and (ii)

Repeal the subparagraphs, substitute

“(i) exchanging money or the value of money; or

(ii) collecting, holding, exchanging or remitting funds or the value of money, or otherwise negotiating transfers of funds or the value of money, on behalf of other persons; or”.

4 Paragraph 2(f)

Repeal the paragraph.

5 Paragraphs 2(k), (l) and (o)

Repeal the paragraphs, substitute

“(k) a lawyer, notary or accountant when the lawyer, notary or accountant provides services to a client relating to all or any of the following:

(i) buying or selling of real estate or business entities;

(ii) managing of money, securities or other assets;

(iii) managing of bank, savings or securities accounts;

(iv) organising of contributions for the creation, operation or management of companies;

(v) creating, operating or managing legal persons or arrangements;

(l) a person (whether or not the person is a trust or company service provider) providing all or any of the following services:

(i) forming or managing legal persons;

(ii) acting as (or arranging for another person to act as) a director or secretary of a company, a partner of a partnership, or a similar position in relation to other legal persons;

(iii) providing a registered office, a business address or accommodation, correspondence or an administrative address for a company, a partnership or any other legal person or arrangement;

(iv) acting as (or arranging for another person to act as) a trustee of a trust;

(v) acting as (or arranging for another person to act as) a nominee shareholder for another person;

(o) a person carrying on the business of:

(i) lending, including consumer credit or mortgage credit, and financing of commercial transactions; or

(ii) financial leasing; or

(iii) issuing and managing means of payment (such as, credit cards, travellers’ cheques and bankers’ drafts); or

(iv) issuing financial guarantees and commitments; or

(v) trading for the person’s own account or for the account of customers in money market instruments (such as cheques, bills, certificates of deposit), foreign exchange, financial futures and options, exchange and interest rate instruments, commodity futures trading or transferable securities; or

(vi) participating in securities issues and providing financial services relating to such issues; or

(vii) money broking; or

(viii) mutual funds or, individual or collective portfolio management; or

(ix) safekeeping and administration of cash or liquid securities; or

(x) trustee administrator or investment manager of a superannuation scheme, other than a scheme under which contributions are made by salary deductions and withdrawals are for limited purposes (for example, on retirement); or

(xi) dealing in real estate or sale or hire of motor vehicles; or

(xii) dealing in property (other than real estate) exceeding VT 1 million or such other amount as is prescribed;”.

6 Paragraph 2(p)

Reletter the paragraph to be paragraph (q).

7 After paragraph 2(o)

Insert

“(p) a person carrying on electronic business under the E-Business Act No. 25 of 2000;”

8 At the end of section 3

Add

“(3) Without limiting subsection (1), a transaction includes the following:

(a) the opening of an account;

(b) the use of a safety deposit box or any other form of safe deposit;

(c) the entering into of a fiduciary relationship;

(d) such other transactions as may be prescribed.”.

9 Section 5

Repeal the section, substitute

“5 Financial institutions to report suspicious transactions

(1) This section applies if a financial institution suspects that a transaction or attempted transaction is or may be relevant to:

(a) the detection, investigation or prosecution of a person for a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) the commission of a money laundering offence, a financing of terrorism offence or any other serious offence; or

(d) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations.

(2) The financial institution must prepare a report of the transaction or attempted transaction and give the report to the Unit as soon as possible, but no later than 2 working days after forming the suspicion.

(3) If a financial institution fails without reasonable excuse to comply with subsection (1), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.”.

Section 5A (heading)

Delete the heading, substitute “Transactions by prescribed entities”.

Subsections 5A(1) and (2)

(a) Delete “terrorist organisation”, substitute “prescribed entity”.

(b) After “through”, insert “or by using”.

Subsections 5A(4) and (5)

Repeal the subsections.

13 After section 5A

Insert

“5B Transactions involving terrorist property

(1) This section applies if a financial institution has information in its possession concerning any transaction or attempted transaction which it suspects involves terrorist property, property linked to terrorists or terrorist organisations.

(2) The financial institution must report the transaction or attempted transaction, and the information, to the Unit as soon as possible, but no later than 2 working days after forming the suspicion.

(3) If a financial institution fails without reasonable excuse to comply with subsection (2), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.

5C Financial institutions to report certain transactions with no legitimate purpose

(1) This section applies if a financial institution suspects that a transaction or attempted transaction:

(a) is complex, unusual or large and does not have any apparent or visible economic or lawful purpose; or

(b) is part of an unusual pattern of transactions that does not have any apparent or visible economic or lawful purpose.

(3) If a financial institution fails without reasonable excuse to comply with subsection (1), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.

5D Supervisory body or auditor to report suspicious transactions

(1) This section applies if a supervisory body or an auditor of a financial institution has reasonable grounds to suspect that a transaction or an attempted transaction, or information that it has in its possession concerning any transaction or attempted transaction, is or may be relevant to:

(a) the detection, investigation or prosecution of a person for a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) the commission of a money laundering offence, a financing of terrorism offence or any other serious offence; or

(d) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations.

(2) The supervisory body or the auditor of the financial institution must report the transaction or attempted transaction, or the information, to the Unit as soon as possible, but no later than 2 working days after forming the suspicion.

(3) If a person fails without reasonable excuse to comply with subsection (2), the person is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.

5E Form and content of reports

(1) A report under section 5, 5A, 5B, 5C or 5D must:

(a) subject to subsection (2), be in the prescribed form and may be given by way of fax or electronic mail; and

(b) contain a statement of the grounds on which the person making the report:

(i) in the case of a report under section 5, 5B, 5C or 5D, holds the suspicion; or

(ii) in the case of a report under section 5A, became aware of the transaction; and

(c) be signed or otherwise authenticated by the person making the report.

(2) A report may be given orally, including by telephone, but a written report must be prepared in accordance with subsection (1) within 24 hours after the oral report is given.

(3) If a person fails without reasonable excuse to comply with subsection (1) or (2), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

5F Additional information

(1) This section applies to a person if the person has made a report or provided information about a transaction or attempted transaction under section 5, 5A, 5B, 5C or 5D to the Unit.

(2) The person must give to the Unit any further information that the person has about the transaction or attempted transaction, or the parties to the transaction if requested to do so by the Unit.

(3) If the person fails without reasonable excuse to comply with subsection (2), the person is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.”

14 Section 6

Repeal the section, substitute

“6 Disclosure of reports and other information

(1) A person must not disclose to any other person:

(a) that a financial institution, or the supervisory body or auditor of a financial institution, has formed a suspicion in relation to a transaction or an attempted transaction; or

(b) that a report under this Act has been, or is likely to be, made to the Unit; or

(d) any other information from which the person to whom the information is disclosed could reasonably be expected to infer any of the circumstances in paragraph (a), (b) or (c).

(2) Subsection (1) does not apply to a disclosure made to:

(a) an officer, employee or agent of a person who has made or is required to make a report or provide information under this Act for any purpose connected with the performance of that person's duties; or

(b) a lawyer for the purpose of obtaining legal advice or representation in relation to the disclosure; or

(d) an assisting entity or any other person by the Unit under this Act.

(3) A person referred to in paragraph (2)(b) to whom information to which subsection (1) applies has been disclosed must not disclose that information except to another person of the kind referred to in that paragraph, for the purpose of:

(a) the performance of the first-mentioned person's duties; or

(b) obtaining legal advice or representation in relation to the disclosure.

(4) Nothing in this section prevents the disclosure of any information in connection with, or in the course of, proceedings before a court if the court is satisfied that the disclosure of the information is necessary in the interests of justice.

(5) If a person contravenes subsection (1), the person is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both;

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.

(6) If a person contravenes subsection (1):

(a) with intent to prejudice an investigation of a money laundering offence, a financing of terrorism offence or another serious offence; or

(b) for the purpose of obtaining directly or indirectly an advantage or a pecuniary gain for himself or herself or any other person;

the person is guilty of an offence punishable on conviction:

(c) in the case of an individual – by a fine not exceeding VT 50 million or imprisonment for a term not exceeding 10 years, or both; or

(d) in the case of a body corporate - by a fine not exceeding VT 200 million.

6A Protection of identity of persons and information in suspicious transaction and other reports

(1) A person must not disclose any information that identifies or is likely to identify any person who has:

(a) handled a transaction in respect of which a suspicious transaction report or other report under this Act has been made; or

(b) prepared a suspicious transaction report or other report under this Act; or

except for the purposes set out in subsection (2).

(2) The purposes are:

(a) the detection, investigation or prosecution of a person for a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations.

(3) Nothing in this section prevents the disclosure of any information in connection with, or in the course of, proceedings before a court if the court is satisfied that the disclosure of the information is necessary in the interests of justice.

(4) If a person contravenes subsection (1), the person is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 25 million or imprisonment for a term not exceeding 5 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 100 million.”

15 Subsection 7(1)

Delete “section 5 in good faith”, substitute “this Part in good faith or in compliance with a direction given by the Unit under paragraph 13A(1)(i) or section 13D”.

16 After section 7

Insert

“7A Protection of auditor and supervisory body

(1) No civil or criminal proceedings are to be taken against:

(a) the auditor or the supervisory body of a financial institution; or

(b) an officer, employee or agent of the auditor or the supervisory body acting in the course of that person's employment or agency;

in relation to any action by the auditor or the supervisory body or the officer, employee or agent taken under this Part in good faith or in compliance with a direction given by the Unit under paragraph 13A(1)(i) or section 13D.

(2) Subsection (1) does not apply in respect of proceedings for an offence against a section in this Part.

7B False or misleading statements

If a person in making a report or providing information required under this Part:

(a) makes any statement that the person knows is false or misleading in a material particular; or

(b) omits from any statement any matter or thing without which the person knows that the statement is false or misleading in a material particular;

the person is guilty of an offence punishable on conviction:

(c) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(d) in the case of a body corporate - by a fine not exceeding VT 10 million.

7C Legal professional privilege

(1) Nothing in this Act requires a lawyer or notary to disclose information which is subject to legal professional privilege.

(2) For the purposes of this Act, a communication is privileged communication if:

(a) it is a confidential communication, whether orally or in writing between:

(i) a lawyer or notary in his or her professional capacity and another lawyer or notary in such capacity; or

(ii) a lawyer or notary in his or her professional capacity and his or her client, whether made directly or indirectly through an agent; and

(b) it is made for the purpose of obtaining or giving legal advice or assistance; and

Paragraphs 8(1)(a), (b) and (c)

After “money laundering”, insert “and financing of terrorism”.

Subsection 8(2)

Repeal the subsection, substitute

“(2) A financial institution must establish and maintain internal procedures:

(a) to implement the reporting requirements under this Part and Part 2A; and

(b) to implement the customer identification requirements, record keeping and retention requirements under Part 3.

(3) A financial institution must:

(a) appoint a person as a compliance officer who is responsible for ensuring the financial institution’s compliance with the requirements of this Act and the regulations; and

(b) establish an audit function to test its anti-money laundering and financing of terrorism procedures and systems.

(4) A person may be appointed as a compliance officer on a full time or part time basis and may be an existing member of staff.

(5) Subsections (1) to (4) do not apply to an individual who, in the course of carrying on his or her business, does not employ or act in association with any other person.

(6) A financial institution must give the Unit a copy of its internal procedures referred to in subsections (1) and (2) if requested to do so in writing by the Unit.

(7) If a financial institution contravenes subsection (1), (2), (3) or (6), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 1 million or imprisonment for a term not exceeding 1 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 5 million.”.

After Part 2

Insert

“PART 2A FINANCIAL TRANSACTIONS REPORTING

8A Financial institution to report financial transactions

(1) A financial institution must report to the Unit:

(a) any single transaction of an amount in cash exceeding VT 1 million or its equivalent in a foreign currency, or such other amount as may be prescribed, unless the originator and beneficiary of the transaction are financial institutions carrying on the business set out in paragraph 2(b) of this Act (relating to a meaning of financial institution) and acting on their own behalf; and

(b) the transmission out of Vanuatu of an electronic or other funds transfer of an amount exceeding VT 1 million or its equivalent in a foreign currency, or such other amount as may be prescribed, in the course of a single transaction; and

(c) the receipt from outside Vanuatu of an electronic or other funds transfer of an amount exceeding VT 1 million or its equivalent in a foreign currency, or such other amount as may be prescribed, in the course of a single transaction.

(2) Paragraph (1)(b) does not apply if the financial institution sends an electronic or other funds transfer to a person in Vanuatu, even if the final recipient is outside Vanuatu.

(3) Paragraph (1)(c) does not apply if the financial institution receives an electronic or other funds transfer from a person in Vanuatu, even if the initial sender is outside Vanuatu.

(4) The report must:

(a) be in the prescribed form and may be given by way of fax, electronic mail or other means; and

(b) be signed or otherwise authenticated by the financial institution; and

(i) in the case of a transaction or transfer in Vatu, within 15 days after the transaction or transfer is made; and

(ii) in the case of a transaction or transfer in a foreign currency, within 2 days after the transaction or transfer is made.

(5) If a financial institution contravenes subsection (1) or (4), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

(6) The Unit may on the application of a financial institution exempt in writing the reporting of transactions referred to in paragraph 1(a) of this section if the transactions are deposits or withdrawals by an established customer of a financial institution using an account of the customer with the financial institution.

8B Avoidance of section 8A

(1) This section applies to a person who conducts two or more transactions or electronic or other funds transfers that are of an amount below the threshold set out in paragraph 8A(1)(a), (b) or (c).

(2) If the person conducts the transactions or transfers for the sole or dominant purpose of ensuring, or attempting to ensure, that a report in relation to the transactions or transfers will not be made under subsection 8A(1), the person is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

(3) Without limiting subsection (2), the following may be taken into account by a court in deciding whether a person has committed an offence against that subsection:

(a) the manner and form in which the transactions or transfers were conducted;

(b) the value of the currency involved in each transaction or transfer;

(d) the period of time over which the transactions or transfers occurred;

(e) the interval of time between the transactions or transfers;

(f) the locations at which the transactions or transfers were initiated or conducted;

(g) any explanation made by the persons concerned as to the manner or form in which the transactions or transfers were conducted.”.

20 Paragraph 9(2)(d)

Repeal the paragraph, substitute

“(d) the name, address and occupation, business or principal activity, as the case requires, of each person:

(i) conducting the transaction; and

(ii) for whom, or for whose ultimate benefit, the transaction is being conducted, if the financial institution has reasonable grounds to believe that the person is undertaking the transaction on behalf of any other person;

(e) the type and identifying number of any account with the financial institution involved in the transaction;

(f) if the transaction involves a negotiable instrument other than currency:

(i) the drawer of the instrument; and

(ii) the name of the institution on which it is drawn; and

(iii) the name of the payee (if any); and

(iv) the amount and date of the instrument; and

(v) the number (if any) of the instrument and details of any endorsements appearing on the instrument;

(g) the name and address of the financial institution, and of each officer, employee or agent of the financial institution who prepared the relevant record or a part of the record;

(h) such other information as may be prescribed.”

21 After section 9

Insert

“9A Records in relation to reports and certain enquiries

(1) In addition to the requirements under section 9, a financial institution must keep:

(a) a record of any suspicious transaction report or other report made under Part 2 or 2A by the financial institution to the Unit; and

(b) a record of any enquiry relating to money laundering or the financing of terrorism made by the financial institution to the Unit.

(2) A financial institution must keep the records referred to in subsection (1) for a period of 5 years after the date on which the report or the enquiry was made.

(3) If a financial institution contravenes subsection (1) or (2), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

9B Form in which records to be kept

(1) Records under sections 9 and 9A must:

(a) subject to subsection (2), be kept in a machine-readable form; and

(b) be kept with appropriate back up and recovery procedures.

(2) Records may be kept in an electronic form if a paper copy can be readily produced.

9C Records to be made available

A financial institution must make available any of its records referred to in section 9 or 9A to the Unit if requested to do so in writing by the Unit.

9D Financial institutions to monitor transactions

(1) A financial institution must:

(a) conduct ongoing due diligence on its relationship with each of its customers; and

(b) conduct ongoing scrutiny of any transaction undertaken by each of its customers to ensure that the transaction being conducted is consistent with the financial institution’s knowledge of the customer, the customer’s business and risk profile, including where necessary, the source of funds.

(2) A financial institution must pay special attention to:

(a) business relations and transactions with persons in jurisdictions that do not have adequate systems in place to prevent or deter money laundering or the financing of terrorism; and

(b) electronic funds transfers, other than an electronic funds transfer referred to in subsection 9E(2) or (4), that do not contain complete originator information.

(3) In relation to subsections (1) and (2), a financial institution must:

(a) examine as far as possible the background and purpose of the transactions, business relations and transfers, and record its findings in writing; and

(b) upon a request in writing by the Unit, make available such findings to the Unit or an assisting entity, to assist the Unit or the assisting entity in any investigation relating to a money laundering offence, a financing of terrorism offence or any other serious offence.

(4) If a financial institution fails to comply with a request under paragraph (3)(b), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 1 million or imprisonment for a term not exceeding 1 year, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 5 million.

9E Originator information

(1) A financial institution must include accurate originator information on an electronic funds transfer and on any other form of funds transfer, and such information is to remain with the transfer.

(2) Subsection (1) does not apply to an electronic funds transfer that results from a transaction carried out using a credit or debit card if the credit or debit card number is included in the information accompanying such a transfer.

(3) Despite subsection (2), if a money transfer is effected from the use of a credit or debit card as means of payment, then subsection (1) does apply to the transfer.

(4) Subsection (1) does not apply to an electronic funds transfer or settlement between financial institutions where the originator and beneficiary of the funds transfer are financial institutions acting on their own behalf.

(5) If a financial institution contravenes subsection (1), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 1 million or imprisonment for a term not exceeding 1 year, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 5 million.”

22 Section 10

Repeal the section, substitute

“10 Financial institutions to verify customers’ identity

(1) If a person:

(a) opens an account with a financial institution; or

(b) engages the services of a financial institution or enters into a business relationship with a financial institution;

the financial institution must identify and verify the identity of the person.

(2) If a person conducts or attempts to conduct a transaction through or by using a financial institution, the financial institution must identify and verify the identity of the person.

(3) If:

(a) a person conducts or attempts to conduct a transaction through or by using a financial institution; and

(b) the financial institution has reasonable grounds to believe that the person is undertaking the transaction on behalf of any other person or persons;

then, in addition to complying with subsection (2), the financial institution must identify and verify the identity of the other person or persons for whom, or for whose ultimate benefit, the transaction is being conducted.

(4) If a financial institution contravenes subsection (1), (2) or (3), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

10A Customer identification - other situations

(1) A financial institution must identify and verify the identity of a customer if the financial institution:

(a) carries out an electronic funds transfer for the customer, other than an electronic funds transfer referred to in subsection 9E(2) or (4); or

(b) suspects the customer is involved in a money laundering offence or a financing of terrorism offence; or

(c) has doubts about the veracity or adequacy of the customer identification and verification documentation or information it had previously obtained.

(2) If a financial institution contravenes subsection (1), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

10B Exceptions

Subsections 10(2) and (3), and paragraph 10A(1)(a) do not apply:

(a) if the person conducting the transaction is a financial institution that is subject to prudential regulation by the Reserve Bank of Vanuatu or the Vanuatu Financial Services Commission; or

(b) if the transaction is part of an established business relationship with a person and the person has already produced satisfactory evidence of identity, unless the financial institution suspects the transaction is suspicious or unusual; or

(c) if the transaction is an occasional transaction not exceeding VT 1 million or such other amount as is prescribed, other than an electronic funds transfer, unless the financial institution suspects the transaction is suspicious or unusual.

10C Identification details

(1) Without limiting section 10 or 10A, a financial institution must:

(a) if the customer is an individual, adequately identify and verify his or her identity, including obtaining information relating to:

(i) the individual’s name, address and occupation; and

(ii) the national identity card or passport or other applicable official identifying document; and

(b) if the customer is a legal entity, adequately verify its legal existence and structure, including obtaining information relating to:

(i) the customer's name, legal form, address and its directors; and

(ii) the principal owners and beneficiaries and control structure; and

(iii) provisions regulating the power to bind the entity; and

(iv) the authorisation of any person purporting to act on behalf of the customer, and identify the persons; and

(c) when entering into a business relationship, obtain information on the purpose and intended nature of the business relationship.

(d) have risk management systems capable of determining whether a customer is a politically-exposed person, and where the customer is determined to be such a person, the financial institution must:

(i) take reasonable measures to establish the source of wealth and funds; and

(ii) obtain the approval of senior management before establishing a business relationship with the customer; and

(iii) conduct regular and ongoing enhanced monitoring of the business relationship.

(2) For the purposes of this section a politically exposed person means an individual who is or has been entrusted with prominent public functions in a foreign country, for example Heads of State, or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations and important officials of a political party.”

10D Cross border correspondent banking

(1) This section applies to a financial institution if the institution carries out cross border correspondent banking or has other similar relationships.

(2) The financial institution must, in addition to its other obligations under this Act, do all of the following:

(a) adequately identify and verify the person with whom it conducts such a business relationship;

(b) gather sufficient information about the nature of the business of the person;

(c) determine from publicly available information the reputation of the person and the quality of supervision the person is subject to;

(d) assess the person’s anti-money laundering and terrorist financing controls;

(e) obtain approval from senior management before establishing a new correspondent relationship;

(f) document the responsibilities of the financial institution and the person.

(3) If the financial institution allows the person with whom it carries out cross border correspondent banking relationship to establish accounts in the financial institution for use by that person’s customers, the financial institution must, in addition to its other obligations under this Act, be satisfied that that person:

(a) has verified the identity of and is performing on-going due diligence on that person’s customers that have direct access to accounts of the financial institution; and

(b) will be able to provide to the financial institution customer identification data of the customers referred to in this subsection upon request.”

10E Intermediaries or third parties

If a financial institution relies on an intermediary or a third party to undertake its obligations under any provision of this Part, or to introduce business to it, the financial institution must:

(a) satisfy itself that the intermediary or third party is regulated and supervised, and has measures in place to comply with the requirements set out in this Part; and

(b) ensure that copies of identification data and other relevant documentation relating to the requirements set out in this Part will be made available to it from the intermediary or the third party upon request without delay; and

(c) immediately obtain the information required by this Part.

10F Means to identify and verify identity of customers

(1) A financial institution must:

(a) identify a customer on the basis of official or other identifying documents; and

(b) verify the identity of a customer on the basis of reliable and independent source documents, data or information, or such other evidence as is reasonably capable of verifying the identity of the customer.

(2) The regulations may prescribe all or any of the following:

(a) the official or identifying documents, or the reliable and independent source documents, data or information or other evidence that is required for identification or verification of any particular customer or class of customers;

(b) the timing of the identification and verification requirements of any particular customer or class of customers;

(c) the threshold for, or the circumstances in which, the provisions of this Part apply in relation to any particular customer or class of customers.

(3) If a financial institution contravenes subsection (1), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 1 million or imprisonment for a term not exceeding 1 year, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 4 million.

10G Necessity of identification to conduct transaction

(1) If satisfactory evidence of the identity of a person is not produced to or obtained by a financial institution under this Part, the financial institution must prepare a suspicious transaction report of any transaction attempted to be conducted by the person and give it to the Unit as if the transaction were a suspicious transaction under section 5.

(2) The financial institution must not proceed any further with the transaction unless directed to do so by the Unit.

(3) If a financial institution contravenes subsection (1) or (2), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

10H Financial institutions to maintain account in true name

(1) A financial institution must maintain an account in the true name of the account holder.

(2) A financial institution must not open, operate or maintain any anonymous account or any account which is in a fictitious, false or incorrect name.

(3) If a financial institution contravenes subsection (1) or (2), the financial institution is guilty of an offence punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.”.

23 Paragraph 11(1)(a)

Delete “section 10”, substitute “this Part”.

24 After section 12

Insert

“12A Appointment of the Manager of the Financial Intelligence Unit

(1) The Manager is to be appointed by the Minister after consultation with the:

(a) Attorney General; and

(b) Director General of the Prime Minister’s Office; and

(d) Governor of Reserve Bank; and

(2) The Manager is to:

(a) exercise all the powers and functions of the Unit under this Part; and

(b) report to the Attorney-General on the exercise of the powers and functions of the Unit under this Part.

(3) The Manager may authorise any person subject to any terms and conditions as the Manager may specify to carry out any power or function conferred on the Manager under this Act.”

25 Section 13

Repeal the section, substitute

“13 Staff of the Unit

(1) The Attorney General is to appoint such number of persons to be members of the Unit as are necessary to enable it to perform its functions under this Act.

(2) A person is to be appointed on such terms and conditions as the Attorney General determines in writing.

(3) The Attorney General may authorize any member of the Unit or any other suitably qualified person, subject to any terms and conditions that the Attorney General may specify, to carry out any power or function conferred on the Unit under this Act.

13A Primary functions and powers

(1) The following functions are the primary functions of the Unit:

(a) to receive suspicious transaction reports and other reports, and information, in accordance with the provisions of this Act;

(b) to analyse and assess any report or information mentioned in any paragraph of this subsection, and to make recommendations to relevant persons;

(c) to receive information, whether or not it has been requested by the Unit from an assisting entity, or a ministry, department or agency of the Government or any person, for the purposes of this Act;

(d) to disclose information derived from any report provided to the Unit under this Act, or any information provided to the Unit under this Act, to an assisting entity if the Unit has reasonable grounds to suspect that the report or information is relevant to:

(i) the detection, investigation or prosecution of a person for a money laundering offence, a financing of terrorism offence or any other serious offence; or

(ii) the commission of a money laundering offence, a financing of terrorism offence or any other serious offence; or

(iii) an act preparatory to a financing of terrorism offence; or

(iv) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations;

(e) to carry out examinations of financial institutions to ensure their compliance with this Act;

(f) to collect information that the Unit considers relevant to a money laundering offence, a financing of terrorism offence or any other serious offence, whether or not the information is publicly available, including information in commercially available databases or databases maintained by the Government;

(g) to enter into agreements or arrangements under section 13C, and exchange information in accordance with those agreements or arrangements;

(h) to request information from an assisting entity to assist with any analysis or assessment mentioned in paragraph (f);

(i) to direct in writing a financial institution to take such steps as the Unit considers appropriate in relation to any information or report received by the Unit so as to facilitate any investigation that is anticipated or being undertaken by the Unit or an assisting entity.

(2) The Unit has power to do everything necessary or convenient to be done for, or in connection with, the performance of its functions under this section and section 13B.

13B Additional functions

The Unit has the following additional functions:

(a) in consultation with the relevant supervisory body (where appropriate), to issue guidelines to financial institutions in relation to customer identification, record keeping, reporting obligations, identification of suspicious transactions and money laundering and financing of terrorism typologies;

(b) to provide training programs for financial institutions in relation to customer identification, record keeping, reporting obligations and the identification of suspicious transactions;

(d) to undertake inquiries as may be requested in writing by an assisting entity where appropriate;

(e) to do probity checks when requested to do so by the Vanuatu Investment Promotion Authority or a ministry, department or agency of the Government;

(f) to provide feedback to financial institutions and other relevant persons regarding outcomes relating to the reports or information given under this Act;

(g) to conduct research into trends and developments in the area of money laundering and the financing of terrorism and improved ways of detecting, preventing and deterring money laundering and the financing of terrorist activities;

(h) to educate the public and create awareness on matters relating to money laundering and the financing of terrorism.

13C Agreements and arrangements by the Financial Intelligence Unit

(1) The Unit may, with the approval in writing of the Minister, enter into a written agreement or arrangement with an assisting entity regarding the exchange of information mentioned in subsection (2) between the Unit and that assisting entity.

(2) The information is to be information that the Unit and the assisting entity have reasonable grounds to suspect would be relevant to detecting, investigating or prosecuting:

(a) a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) an offence that is substantially similar to such an offence.

(3) An agreement or arrangement entered into under subsection (1) must:

(a) restrict the use of information to purposes relevant to investigating or prosecuting a money laundering offence, a financing of terrorism offence or any other serious offence, or an offence that is substantially similar to such an offence; and

(b) stipulate that the information is to be treated in a confidential manner and not to be further disclosed without the express consent of the Unit and assisting entity.

(4) In the absence of an agreement or arrangement entered into under subsection (1), the Unit may exchange information referred to in subsection (2) with an assisting entity having functions and duties similar to those of the Unit, provided that:

(a) the use of the information is restricted to purposes relevant to investigating or prosecuting a money laundering offence, a financing of terrorism offence or any other serious offence, or an offence that is substantially similar to such an offence; and

(b) the information is to be treated in a confidential manner and not to be further disclosed without the express consent of the Unit and assisting entity.”

13D Power to examine

(1) A member of the Unit or any person authorised in writing by the Attorney General may examine the records and inquire into the business and affairs of any financial institution for the purpose of ensuring compliance by the financial institution with Parts 2, 2A and 3.

(2) Without limiting subsection (1), the member or authorised person may do all or any of the following:

(a) at any reasonable time, enter any premises, in which the member or authorised person believes, on reasonable grounds, that there are records relevant to ensuring compliance by a financial institution with Part 2, 2A or 3;

(b) use or cause to be used any computer system or data processing system in the premises to examine any data contained in or available to the system;

(c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying;

(d) use or cause to be used any copying equipment in the premises to make copies of any record.

(3) The owner or occupier of premises referred to in subsection (1) and any person found there:

(a) must give the member or authorised person all reasonable assistance to enable him or her to carry out his or her duties; and

(b) must provide the member or authorised person with any information that he or she may reasonably require for that purpose.

(4) The Unit may transmit any information from, or derived from, such examination to an assisting entity if the Unit has reasonable grounds to suspect that the information is or may be relevant to:

(a) the detection, investigation or prosecution of a person for a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) the commission of a money laundering offence, a financing of terrorism offence or any other serious offence; or

(d) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations.

(5) If a person:

(a) obstructs or hinders or fails to cooperate with the member or any authorised person in the lawful exercise of the powers under subsection (1); or

(b) does not comply with subsection (3);

the person is guilty of an offence and is punishable on conviction:

(i) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(ii) in the case of a body corporate - by a fine not exceeding VT 10 million.

13E Powers to enforce compliance

(1) A financial institution must take all reasonable steps to ensure that the financial institution complies with its obligations under this Act.

(2) The Unit may in writing direct a financial institution that has without reasonable excuse failed to comply in whole or in part with any of its obligations under Part 2, 2A or 3 to:

(a) implement such obligations within such time as is specified in the direction; and

(b) produce a written action plan in relation to the implementation of its obligations.

(3) The Unit may in writing direct a financial institution to take such steps as the Unit considers appropriate in relation to any information or report received by the Unit to enforce compliance with this Act.

(4) If a financial institution fails to comply with a direction under subsection (2) or (3) within the time specified in the direction, the Unit may apply to the Supreme Court for an order against the financial institution to enforce compliance with the relevant obligations.

(5) The Court must not make an order unless it is satisfied that the financial institution has failed without reasonable excuse to comply in whole or in part with any of its obligations under Part 2, 2A or 3 and has failed to comply with a direction under subsection (2) or (3).

(6) If a financial institution fails to comply with a direction under paragraph 13A(1)(i), the Unit may apply to the Supreme Court for an order against the financial institution to comply with the direction.

(7) The Court must not make an order unless it is satisfied that the financial institution has failed without reasonable excuse to comply with the direction given under paragraph 13A(1)(i).

13F Power to halt transaction or attempted transaction

(1) This section applies if the Unit has reasonable grounds to suspect that a transaction or attempted transaction may:

(a) involve the proceeds of a money laundering offence, a financing of terrorism offence or any other serious offence; or

(b) be preparatory to a financing of terrorism offence.

(2) The Unit may in writing direct the financial institution concerned not to proceed with that transaction or attempted transaction for a period to be determined by the Unit in order to allow the Unit:

(a) to make any necessary inquiries concerning the transaction or attempted transaction; and

(b) to consult or advise any relevant assisting entity on its inquiries.

(3) A direction under subsection (2) may be given orally or in writing. However, if it is given orally, it must be followed up in writing within 24 hours after having been given orally.

(4) The period determined by the Unit under subsection (2) must not exceed 5 days.

(5) The Unit may apply to the Supreme Court for an extension of the period determined under subsection (2).

(6) If a financial institution fails to comply with a direction, the financial institution is guilty of an offence and is punishable on conviction:

(a) in the case of an individual – by a fine not exceeding VT 2.5 million or imprisonment for a term not exceeding 2 years, or both; or

(b) in the case of a body corporate - by a fine not exceeding VT 10 million.

13G Destruction of reports

The Unit is to destroy a report under this Act received or collected by it on the expiry of 6 years:

(a) after the date of receipt of the report if there has been no further activity or information relating to the report or the person named in the report; or

(b) after the date of the last activity relating to the person or report.

13H Annual Reports

(1) The Manager must, on or before the end of March of each year, submit an annual report to the Minister on the operations of the Unit for the preceding year.

(2) The Minister must as soon as practicable table a copy of the annual report in Parliament.

(3) The Manager must not disclose any information in the report that would directly or indirectly identify:

(a) an individual who provided a annual report or information under this Act to the Unit; or

(b) a person about whom a report or information was provided under this Act.”.

26 Subsection 14(2)

(a) Delete “keep a transaction record or report a suspicious transaction as required by this Act”, substitute “make a report under Part 2 or 2A or keep a record under Part 3”.

(b) After “commit”, insert “a financing of terrorism or”.

27 Subsection 15(2)

Repeal the subsection, substitute

“(2) The person must not, directly or indirectly, divulge or communicate to any other person, or make a record of:

(a) any information contained in a suspicious transaction report or other report provided under this Act; or

(b) any information provided under a provision of this Act;

except for one or more of the purposes set out in subsection (3).

(3) The purposes are all or any of the following:

(a) the detection, investigation or prosecution of a money laundering offence, a financing of terrorism offence or any other serious offence;

(b) the enforcement of this Act, the Proceeds of Crime Act No. 13 of 2002 or any other Act prescribed by the regulations;

(d) such other purposes connected with the performance of the person’s functions or duties under this Act.

(4) If a person contravenes subsection (2), the person is guilty of an offence punishable on conviction by a fine not exceeding VT 2.5 million, or imprisonment for a term not exceeding 2 years, or both.”.

28 Sections 16 and 17

Repeal the sections, substitute

“16 Opening accounts in false names etc

(1) A person must not open or operate an account with a financial institution in a false, fictitious or incorrect name.

(2) If a person is commonly known by two or more different names, the person must not use one of those names in opening an account with a financial institution unless the person has previously disclosed the other name or names to the financial institution.

(3) If a person using a particular name in his or her dealings with a financial institution discloses to it a different name or names by which he or she is commonly known, the financial institution must make a record of the disclosure and must give the Unit a copy of that record if requested to do so in writing by the Unit.

(4) For purposes of this section, a person opens an account in a false name if:

(a) the person, in opening the account, or becoming a signatory to the account, uses a name other than a name by which the person is commonly known; or

(b) the person does any act or thing in relation to the account (whether by way of making a deposit or withdrawal or by way of communication with the financial institution concerned or otherwise) and, in doing so, uses a name other than a name by which the person is commonly known.

(5) If a person contravenes subsection (1) or (2), the person is guilty of an offence punishable on conviction by:

(a) in the case of an individual - imprisonment for a term of not more than 4 years or a fine of not more than VT 10 million, or both; or

(b) in the case of a body corporate – a fine of not more than VT 50 million.

16A Immunity

No civil or criminal proceedings are to be taken against the Attorney General, the Manager or any member or agent of the Unit or any person acting under the direction of the Attorney General or the Manager for any act done or omission made in good faith in the discharge or purported discharge of any of the Unit’s powers, duties or functions under this Act.

17 Overriding of secrecy

(1) A financial institution and an officer, employee or agent of the financial institution must comply with the requirements of this Act despite any obligation as to secrecy or other restriction on the disclosure of information imposed by any written law or otherwise.

(2) No civil or criminal proceedings are to be taken against a financial institution or an officer, employee or agent of the financial institution for complying with its or his or her obligations under this Act despite any written law to the contrary.

(3) To avoid doubt, this section overrides section 125 of the International Companies Act No. 32 of 1992.

17A Liability of directors or officers of bodies corporate

If a body corporate is convicted of an offence under this Act, any director or officer concerned in the management of the body corporate is guilty of the offence if it is proved that the act or omission that constituted the offence took place with his or her knowledge, authority, permission, or consent.

17B Money laundering entity

The Minister may make regulations prescribing as money laundering entity a person or group if the person or group has been convicted of money laundering offence or an offence that is substantially similar to such an offence.”

29 Schedule

Repeal the Schedule.

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