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Niue Sessional Legislation |
NIUE
FINANCIAL TRANSACTIONS REPORTING ACT 2000
No 253
Arrangement of provisions
Part 1 - Preliminary
1 Short title
2 Interpretation
3 Meaning of financial institution
4 Meaning of transaction
5 Application
Part 2 - Obligation To Report Suspicious Transactions
6 Financial institutions to report suspicious transactions
7 Disclosure of suspicious transaction reports
8 Protection of persons reporting suspicious transactions
9 Other preventative measures by financial institutions
Part 3 - Obligations To Keep Records And Verify Identity
10 Financial institutions to keep records
11 Financial institutions to verify customers' identity
12 Financial institution to keep customers' records
Part 4 - Financial Intelligence Unit
13 Establishment of Financial Intelligence Unit
14 Functions and powers
15 Search warrants
16 Secrecy provision
Part 5 - Other Matters
17 Opening accounts in false names
18 Certain other Acts not limited
19 Regulations
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AN ACT
to provide for the reporting of certain transactions
and the keeping of certain records, and for related purposes
Part 1 - Preliminary
1 Short title
(1) This Act may be cited as the Financial Transactions Reporting Act 2000.
2 Interpretation
(1) In this Act, unless the contrary intention appears:
"account" means any facility or arrangement by which a financial institution does any of the following:
(a) accepts deposits of currency;
(b) allows withdrawals of currency;
(c) pays cheques or payment orders drawn on the financial institution, or collects cheques or payment orders on behalf of a person other than the financial institution;
and includes any facility or arrangement for a safety deposit box or for any other form of safe deposit;
"cash" means any coin or paper money that is designed as legal tender in the country of issue and includes bearer bonds, travellers cheques, postal notes and money orders;
"financial institution" has the meaning given by section 3;
"Minister" shall mean the Minister for Finance;
"money laundering offence" means an offence within the terms of sections 64 and 65 of the Proceeds of Crime Act 1998;
"prescribed" means prescribed by regulations made under this Act;
"suspicious transaction report" means a report prepared under section 6;
"transaction" has the meaning given by section 4;
"Unit" means the Financial Intelligence Unit established under Part 4.
3 Meaning of financial institution
(1) Each of the following is a financial institution:
(a) a company licensed as an exempted bank or financial institution under the International Banking Act 1997;
(b) a person carrying on a business:
(i) of administering or managing funds on behalf of an international company within the meaning of the International Business Companies Act 1994 or any other person; or
(ii) as a trustee in respect of funds of other persons; or
(c) a person carrying on a business of an insurer, an insurance intermediary, a securities dealer or a futures broker;
(d) a person (other than a person mentioned in paragraph (a), (b) or (c)) carrying on a business of:
(i) exchanging money; or
(ii) collecting, holding, exchanging or remitting funds, or otherwise negotiating funds transfers, on behalf of other persons; or
(iii) preparing pay-rolls on behalf of other persons in whole or in part from funds collected; or
(iv) delivering funds (including payrolls);
(e) a person carrying on a business of-
(i) dealing in bullion; or
(ii) issuing, selling or redeeming traveller's cheques, money orders or similar instruments; or
(iii) collecting, holding and delivering cash as part of a business or providing payroll services;
(f) a lawyer, but only to the extent that the lawyer receives funds in the course of his or her business for the purpose of deposit or investment, or settling real estate transactions;
(g) an accountant, but only to the extent that the accountant receives funds in the course of his or her business for the purposes of deposit or investment;
(h) any other person prescribed by regulations.
4 Meaning of transaction
(1) A transaction means any deposit, withdrawal, exchange or transfer of funds (in whatever currency) whether:
(a) in cash; or
(b) by cheque, payment order or other instrument; or
(c) by electronic or other non-physical means.
(2) Without limiting subsection (1), a transaction includes any payment made in satisfaction, in whole or in part, of any contractual or other legal obligation.
5 Application
(1) This Act applies in relation to a transaction conducted through a financial institution on or after the commencement of this Act.
(2) A financial institution must comply with the provisions of this Act, despite any other Act or law to the contrary.
Part 2 - Obligation To Report Suspicious Transactions
6 Financial institutions to report suspicious transactions
(1) If:
(a) a person conducts or seeks to conduct any transaction through a financial institution (whether or not the transaction or proposed transaction involves cash); and
(b) the financial institution has reasonable grounds to suspect that the transaction or proposed transaction is or may be relevant to:
(i) the investigation or prosecution of any person for a money laundering offence; or
(ii) the enforcement of the Proceeds of Crime Act 1998;
the financial institution must prepare a report of the transaction or proposed transaction and give the report to the Financial Intelligence Unit as soon as possible, but no later than 2 working days after forming the suspicion.
(2) 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 $250,000 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 $1 million.
(3) A suspicious transactions report must:
(a) be in writing and may be given by way of fax or electronic mail; and
(b) contain the details specified in the Schedule; and
(c) contain a statement of the grounds on which the financial institution holds the suspicion; and
(d) be signed or otherwise authenticated by the financial institution.
(4) A financial institution that has given a suspicious transaction report to the Unit must give the Unit any further information that it has about the transaction or proposed transaction if requested to do so by the Unit.
(5) If a financial institution fails without reasonable excuse to comply with subsection (4), the financial institution is guilty of an offence punishable on conviction:
(a) in the case of an individual - by a fine not exceeding $250,000 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 $1 million.
7 Disclosure of suspicious transaction reports
(1) A financial institution must not disclose to any person that the financial institution:
(a) is contemplating making a suspicious transaction report; or
(b) has given a suspicious transaction report to the Financial Intelligence Unit; unless required to do so under this Act or any other Act.
(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 $250,000 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 $1 million.
(3) Nothing in this section prevents the disclosure of any information contained in a suspicious transaction report in connection with, or in the course of, proceedings before a court.
8 Protection of persons reporting suspicious transactions
(1) No civil or criminal proceedings are to be taken against:
(a) a financial institution; or
(b) an officer, employee or agent of the financial institution acting in the course of that person's employment or agency;
in relation to any action by the financial institution or the officer, employee or agent taken under section 6 in good faith.
(2) Subsection (1) does not apply in respect of proceedings for an offence against a section in this Part.
9 Other preventative measures by financial institutions
(1) A financial institution must establish and maintain internal procedures:
(a) to make the institution's officers and employees aware of the laws in Niue about money laundering; and
(b) to make the institution's officers and employees aware of the procedures, policies and audit systems adopted by the institution to deal with money laundering; and
(c) to train the institution's officer and employees to recognise and deal with money laundering.
(2) A financial institution must prepare a written statement of the institution's internal procedures and submit it to the Unit:
(a) in the case of a financial institution carrying on business when this Act commences - within 3 months after that commencement; or
(b) in any other case - within 3 months after the financial institution starts to carry on business.
Part 3 - Obligations To Keep Records And Verify Identity
10 Financial institutions to keep records
(1) A financial institution must keep such records of every transaction that is conducted through the financial institution as are reasonably necessary to enable the transaction to be readily reconstructed at any, time by the Financial Intelligence Unit.
(2) Without limiting subsection (1), such records must contain the following information:
(a) the nature of the transaction;
(b) the amount of the transaction and the currency in which it was denominated;
(c) the date on which the transaction was conducted;
(d) the parties to the transaction.
(3) A financial institution must keep the records for a period of 6 years after the completion of the transaction.
(4) If a financial institution contravenes subsection (1) 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 $25,000 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 $100,000.
11 Financial institutions to verify customers' identity
(1) If a person conducts a transaction though a financial institution the financial institution must verify the identity of the person.
(2) If:
(a) a person conducts a transaction through a financial institution; and
(b) the amount of the transaction exceeds $10,000 or its equivalent in a foreign currency, or such other amount as is prescribed; and
(c) the financial institution has reasonable grounds to believe that the person is conducting the transaction on behalf of any other person or persons;
then, in addition to complying with subsection (1), the financial transaction must verify the identity of the other person or persons for whom, or for whose ultimate benefit, the transaction is being conducted.
(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 $25,000 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 $100,000.
(4) Subsection (1) or (2) does not apply if
(a) the person who is conducting the transaction is a financial institution; or
(b) the transaction is part of an established business relationship with a person who has already produced satisfactory evidence of identity.
12 Financial institution to keep customers' records
(1) A financial institution must keep:
(a) if evidence of a person's identity ("the identified person") is obtained under section 11 - a record that indicates the kind of evidence that was obtained, and comprises either a copy of the evidence or information that enables a copy of it to be obtained; and
(b) a record of all correspondence between the identified person and the financial institution.
(2) The records mentioned in subsection (1) must be kept for a period of 6 years after the evidence was obtained or the date of the correspondence, as the case requires.
(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 $25,000 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 $100,000.
Part 4 - Financial Intelligence Unit
13 Establishment of Financial Intelligence Unit
The Financial Intelligence Unit is established within the office of the Attorney General.
14 Functions and powers
(1) The Unit has the following functions:
(a) to receive suspicious transactions reports made by financial institutions; and
(b) to give copies of such reports:
(i) to the Office of the Attorney General; and
(ii) in the case of a company that is licensed as an exempted bank or financial institution under the International Banking Act 1997 - to the Monetary Board of Niue; and
(iii) if the Attorney-General considers it appropriate - to the Police, a law enforcement agency or a supervisory body outside Niue and
(c) to conduct investigations to ensure compliance with this Act by financial institutions; and
(d) to receive information from, and otherwise assist, the Office of the Attorney General, the Police, any law enforcement agency or supervisory body outside Niue in relation to:
(i) the detection, investigation or prosecution of a money laundering offence; or
(ii) the enforcement of the Proceeds of Crime Act 1998;
(e) to issue guidelines to financial institutions in relation to transaction record keeping and reporting obligations;
(f) to provide training programs for financial institutions about transaction record keeping and reporting obligations.
(2) The Attorney-General is responsible for ensuring that the Unit perform its functions properly, efficiently and effectively, and must appoint legal officers from the Office of the Attorney General to be members of the Unit.
(3) A member of the Unit:
(a) may enter the premises of any financial institution during ordinary business hours to inspect any records kept by the institution under Part 3, and make notes and take copies of the whole or any part of the record; and
(b) may send any information derived from such inspection to the organisations mentioned in paragraph (1) (b); and
(c) may direct any financial institution to take appropriate steps to facilitate any investigation being conducted by the Unit.
15 Search warrants
(1) A member of the Unit may apply to a Judge of the High Court for a warrant:
(a) to enter premises belonging to, or in the possession or control of, a financial institution or any officer or employee of the institution; and
(b) to search the premises and remove any document, material or thing on the premises.
(2) The Judge must grant the application if he or she is satisfied that there are reasonable grounds for believing that:
(a) the financial institution has failed to keep a transaction record or report a suspicious transaction as required by this Act; or
(b) an officer or employee of a financial institution is committing, has committed or is about to commit a money laundering offence.
16 Secrecy provision
(1) This section applies to a person while the person is or after the person ceases to be an officer, employee or agent of the Unit, the Office of the Attorney General, or the Police.
(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
(b) any information provided under paragraph 14 (1) (d) or any other provision of this Act;
except for one or more of the following purposes:
(c) the detection, investigation or prosecution of a money laundering offence;
(d) the enforcement of the Proceeds of Crime Act 1998;
(e) such other purposes connected with the performance of the person's functions or duties under this Act.
(3) If a person contravenes subsection 2 that person is guilty of an offence punishable on conviction by a fine of not more than $20,000.00 or imprisonment for a term not exceeding 2 years or both.
Part 5 - Other Matters
17 Opening accounts in false names
(1) A person who opens or operates an account with a financial institution in a false name 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 $100,000 or both; or
(b) in the case of a body corporate - a fine of not more than $500,000.
18 Certain other Acts not limited
Nothing in this Act is to be construed so as to exempt any company that is licensed as an exempted bank or financial institution under the International Banking Act 1997 from complying with that Act.
19 Regulations
(1) Cabinet may make regulations not inconsistent with this Act:
(a) for or with respect to any matter that by this Act is required or permitted to be prescribed; or
(b) that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
_________
SCHEDULE
[Section 6(3)]
DETAILS TO BE INCLUDED IN SUSPICIOUS TRANSACTION REPORTS
1 The name and address of the financial institution, including the branch of the institution (if applicable) at which the transaction was conducted.
2 The nature of the transaction.
3 The date of the transaction.
4 The total amount involved in the transaction.
5 The type of currency involved in the transaction.
6 For each person conducting the transaction with the financial institution:
(a) the name of the person; and
(b) the business or residential address of the person; and
(c) the occupation, business or principal activity of the person; and
(d) the date of birth of the person; and
(e) the signature of the person; and
(f) the method used by the financial institution to verify the identity of the person; and
(g) whether the transaction was conducted on behalf of the person or on behalf of another person.
7 For any person on whose behalf the transaction was conducted:
(a) the name of the person; and
(b) the address of the person; and
(c) the occupation of the person (or, where appropriate, the business or principal activity of the person).
8 The type and identifying number of any account with a financial institution that is affected by the transaction.
The Niue Assembly passed this Act on the 16th day of November 2000.
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