Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2011 (No. 7)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
I, John Lance Schmidt, Chief Executive Officer, Australian Transaction Reports and Analysis Centre, make this Instrument under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
Dated 27 October 2011
[Signed]
John Lance Schmidt
Chief Executive Officer
Australian Transaction Reports and Analysis Centre
1 Name of Instrument
This Instrument is the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2011 (No. 7).
2 Commencement
This Instrument commences on 1 November 2011.
3 Amendment
Schedule 1 amends the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).
Schedule 1 Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).
After Chapter 53
Insert
Chapter 54 Reporting obligations of registered remittance affiliates
54.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purpose of subsections 49A(1) and 49A(2) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 49A comes into effect.
54.2. An obligation imposed by subsection 43(2) or 45(2) of the AML/CTF Act upon a registered remittance affiliate of a registered remittance network provider to give a report to the AUSTRAC CEO is taken instead to be an obligation imposed upon, and must be discharged by, the registered remittance network provider.
54.3. If a suspicious matter reporting obligation imposed by subsection 41(1) of the AML/CTF Act upon a registered remittance affiliate of a registered remittance network provider arises, that obligation may be met by the registered remittance network provider under a written agreement in place between the registered remittance affiliate and the registered remittance network provider.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 55 Remittance Sector Register
55.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 75(4) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75 of the AML/CTF Act comes into effect.
55.2. If the AUSTRAC CEO believes on reasonable grounds that an entry on the Remittance Sector Register (the Register) is incorrect or incomplete, the AUSTRAC CEO may correct or make complete the entry.
55.3. (1) If the AUSTRAC CEO corrects or makes complete a person’s entry on
the Register, the AUSTRAC CEO must within 14 days give a written notice to the person; and
(2) The notice must set out:
(a) the changes that the AUSTRAC CEO has made to the entry; and
(b) the date on which the changes were made.
55.4. If the circumstances as specified in paragraph 55.2 apply to a registered remittance affiliate, then the written notice as specified in paragraph 55.3 must also be sent to the registered remittance network provider of the registered remittance affiliate.
55.5. The AUSTRAC CEO may publish on AUSTRAC’s website any or all of the information entered on the Register.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 56 Information to be included in an application for registration as a remittance network provider, a remittance affiliate of the registered remittance network provider or an independent remittance dealer
56.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 75(4) and paragraph 75B(3)(b) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75 and section 75B of the AML/CTF Act comes into effect.
56.2. An application by a person (the applicant) for registration as a remittance network provider must be made by an authorised individual on behalf of the applicant and:
(1) contain the information set out in Part A of Schedule 1 to this Chapter; and
(2) obtain and retain the information set out in Part B of Schedule 1 to this Chapter; and
(3) include a declaration made by the authorised individual that each of the key personnel of the applicant has been subject to, and satisfied, the employee due diligence program of the applicant; and
(4) include a declaration made by the authorised individual that the information provided in Schedule 1 of this Chapter is true, accurate and complete.
56.3. An application made by a registered remittance network provider (the applicant) for another person (other person) to be registered as a remittance affiliate of the applicant, must be made by an authorised individual on behalf of the applicant and:
(1) contain the information set out in Part A of Schedule 2 to this Chapter; and
(2) obtain and retain the information set out in Part B of Schedule 2 to this Chapter; and
(3) include a declaration made by the authorised individual that the applicant has assessed the other person in accordance with that person’s obligations under the AML/CTF Act and AML/CTF Rules; and
(4) include a declaration made by the authorised individual that the information provided in Schedule 2 of this Chapter is true, accurate and complete.
56.4. An application by a person (the applicant) for registration as an independent remittance dealer must be made by an authorised individual on behalf of the applicant and:
(1) contain the information set out in Part A of Schedule 3 to this Chapter; and
(2) obtain and retain the information set out in Part B of Schedule 3 to this Chapter; and
(3) include a declaration made by the authorised individual that each of the key personnel of the applicant has been subject to the employee due diligence program of the applicant; and
(4) include a declaration made by the authorised individual that the information provided in Schedule 3 of this Chapter is true, accurate and complete.
56.5. An application made by an independent remittance dealer (the applicant) for registration as a remittance affiliate of a registered network provider must be made by an authorised individual on behalf of the applicant and:
(1) contain the information set out in Part A of Schedule 3 to this Chapter; and
(2) obtain and retain the information set out in Part B of Schedule 3 to this Chapter; and
(3) include a declaration made by the authorised individual that each of the key personnel of the applicant has been subject to the employee due diligence program of the applicant; and
(4) include a declaration made by the authorised individual that the information provided in the application is true, accurate and complete.
56.6. A reference in this Chapter to a person or key personnel of a person who have been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914, or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence.
56.7. To avoid doubt, these AML/CTF Rules do not affect the operation of Part VIIC of the Crimes Act 1914, including the application of Part VIIC to disclosable convictions.
Note: This means that certain convictions which are spent convictions are not required to be disclosed under these AML/CTF Rules.
56.8. In this Chapter:
(1) ‘associated entity’ has the meaning given by section 50AAA of the Corporations Act 2001;
(2) ‘authorised individual’ means a natural person who is:
(a) a beneficial owner; or
(b) an officer as defined in section 9 of the Corporations Act 2001 or;
(c) is an employee of the applicant who has been authorised in writing by an applicant to act in this capacity;
(3) ‘beneficial owner’ in respect of a company, means any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
(4) ‘body’ has the same meaning as in the Corporations Act 2001;
(5) ‘company’ has the same meaning as in the Corporations Act 2001;
(6) ‘control’ has the meaning given by section 50AA of the Corporations Act 2001;
(7) ‘destination’ includes country and a city or town of that country;
(8) ‘disclosable convictions’ means a conviction that:
(a) has been recorded by a court; and
(b) has not been spent under the laws of the country in which the conviction was recorded;
(9) ‘employee due diligence program’ has the same meaning as in Chapter 8 of the AML/CTF Rules;
(10) ‘enforcement action’ includes any action of a corrective nature in respect of an alleged breach of a law taken by a regulatory body of the Commonwealth or a State or Territory, or a government body;
(11) ‘entity’ has the same meaning as in section 9 of the Corporations Act 2001;
(12) ‘fraud’ means dishonestly obtaining a benefit by deception or other means;
(13) ‘key personnel’ means:
(a) in the case of a company, corporation sole or body politic, is a natural person that is;
(i) a beneficial owner; or
(ii) an officer as defined in section 9 of the Corporations Act 2001, or an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy;
(b) in the case of an individual, trust or partnership, is a natural person that is an employee or agent of the individual, trust or partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual, trust or partnership;
(14) ‘National Police Certificate’ means a document that contains a certification, effective on a national basis, that the natural person to whom it relates either has no disclosable convictions or has a disclosable conviction that is detailed in the Certificate; and
(a) if the natural person to whom it relates is a resident of Australia, is issued by an Australian police force; or
(b) if the natural person to whom it relates is a resident of another country, is issued by a police force of that other country;
(15) ‘people smuggling’ means conduct that amounts to:
(a) an offence against Division 73 of the Criminal Code; or
(b) an offence against Subdivision A, Division 12, Part 2 of the Migration Act 1958; or
(c) an offence against a law of a foreign country or of a part of a foreign country that corresponds:
(i) to an offence referred to in paragraph (a) or (b); or
(ii) with the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime;
(16) ‘person’ has the same meaning as in the AML/CTF Act;
(17) ‘serious offence’ means an offence which is:
(a) an offence against a law of the Commonwealth, or a law of a State or Territory, punishable on indictment by imprisonment for life or 2 or more years, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence) regardless of whether the offence proceeds summarily or on indictment; or
(b) an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence.
A ‘serious offence’ in relation to a person other than an individual means an offence which would have been a serious offence if the person had been an individual;
(18) ‘subsidiary’ has the same meaning as in the Corporations Act 2001;
(19) ‘terrorism’ means conduct that amounts to:
(a) an offence against Division 101 or 102 of the Criminal Code; or
(b) an offence against a law of a State or Territory that
corresponds to an offence referred to in paragraph (a); or
(c) an offence against a law of a foreign country or of a part of a
foreign country that corresponds to an offence referred to in
paragraph (a).
56.9 In these Rules, the terms ‘domestic company’, ‘registered co-operative’, ‘registered foreign company’, ‘relevant foreign registration body’ and ‘unregistered foreign company’ have the same respective meanings as in Chapter 1 of the AML/CTF Rules.
Schedule 1 – Information to be provided or relating to an application for registration as a remittance network provider
Part A Information to be provided by the applicant pursuant to paragraph 75B(3)(b) of the AML/CTF Act
1. The name of the applicant;
2. The business name(s) under which the applicant is carrying on a business, or proposes to carry on a business, of providing a registrable designated remittance service;
3. A description of whether the applicant is operating as an individual, company, partnership, trust or through any other legal structure;
4. The full street address of the person’s principal place of business at which the person provides or proposes to provide a designated service, not being a branch of that person;
5. If the applicant has an ACN or ARBN – that number;
6. If the applicant has an ABN – that number;
7. If the applicant holds an Australian financial services licence – the number of that licence;
8. If the applicant holds an Australian credit licence – the number of that licence;
9. The foreign equivalent of the ACN, ABN, ARBN, AFSL or Australian credit licence number, together with the country in which the number was issued;
10. If the applicant is registered or licensed in a foreign country to provide remittance services – details of that registration or licence;
11. The applicant’s telephone number at its principal place of business;
12. The applicant’s facsimile number at its principal place of business (if applicable);
13. The applicant’s email address at its principal place of business (if applicable);
14. The full name and business address (not being a post box address), and, where applicable, any business registration number(s) of:
(a) if the applicant is an individual – that individual;
(b) if the applicant comprises a partnership – the full name and address (not being a post box address) of each partner of the partnership;
(c) if the applicant is a trust – the trustee;
(d) if the applicant is a company – the beneficial owner(s) of the company;
15. In respect of the authorised individual and each of the key personnel, those individuals’:
(a) full name;
(b) date of birth;
(c) position or title;
(d) business telephone number;
(e) business facsimile number (if applicable);
(f) business email address (if applicable); and
(g) full business address (not being a post box address);
16. A description of the business carried on or proposed to be carried on by the applicant;
17. The date on which the applicant commenced or is to commence offering registrable designated remittance services;
18. Whether the applicant or any of its key personnel:
(a) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(b) has been subject to a civil penalty order made under the AML/CTF Act;
(c) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the applicant or any of its key personnel (including by the applicant or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the applicant’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the applicant and each of its key personnel.
Note: The above does not affect the operation of Part VIIC of the Crimes Act 1914, which means that certain convictions that are spent convictions are not required to be disclosed under these AML/CTF Rules.
19. Details of whether the applicant is:
(a) a subsidiary of another entity or entities; or
(b) controlled by another entity or entities; and
if so
(c) the full names, addresses, positions and titles of the directors of the other entity or entities; and
(d) the ACN, ABN, ARBN (or foreign equivalent) of the other entity or entities (as applicable).
Part B Information to be obtained and retained by the applicant pursuant to subsection 75(4) of the AML/CTF Act
1. The original or certified copy (as applicable) of a National Police Certificate (or foreign equivalent if one is able to be obtained) that has been issued within the 6 month period preceding the date of application for registration, for each of the key personnel of the applicant;
2. The full street address of each branch at which the applicant provides or proposes to provide registrable designated remittance services (if applicable);
3. Information relating to the applicant (as applicable):
If the person is a company
4. domestic company:
(a) if the company is registered as a proprietary company, the name of each director of the company;
5. registered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and
(c) the name of each director of the company;
6. unregistered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and if so:
(i) the full address of the company in its country of formation, incorporation or registration as registered; and
(ii) the name of each director of the company;
(c) if the company is not registered by the relevant foreign registration body, the full address of the principal place of business of the company in its country of formation or incorporation;
If the person is a trust
7. the type of trust;
8. (a) the full name and address (not being a post box address) of each trustee of the trust (if applicable); and
either
(b) the full name of each beneficiary in respect of the trust; or
(c) if the terms of the trust identify the beneficiaries by reference to membership of a class – details of the class;
If the person is a partnership
9. the full name and address (not being a post box address) of each partner;
If the person is an association (incorporated)
10. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is an association (unincorporated)
11. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is a registered co-operative
12. the full names of the officer holders, including the chairman, secretary or treasurer or equivalent officer in each case of the co-operative;
13. (a) the main destination(s) where money or property is to be received or is likely to be received as a result of a transfer by the applicant under a designated remittance arrangement; and
(b) the main destination(s) from which money or property is to be transferred or is likely to be transferred by the applicant under a designated remittance arrangement.
Schedule 2 – Information to be provided or relating to an application by a registered remittance network provider in regard to the registration of a remittance affiliate
Part A Information to be provided by the applicant in regard to the registration of a remittance affiliate pursuant to paragraph 75B(3)(b) of the AML/CTF Act
1. The name of the person (other person) who is proposed to be registered as a remittance affiliate of the applicant;
2. The business name(s) under which the other person is carrying on a business, or proposes to carry on a business, of providing a registrable designated remittance service;
3. A description of whether the other person is operating as an individual, company, partnership, trust or through any other legal structure;
4. The full street address of the other person’s principal place of business at which the other person provides or proposes to provide a designated service, not being a branch of that other person;
5. If the other person has an ACN or ARBN – that number;
6. If the other person has an ABN – that number;
7. If the other person holds an Australian financial services licence – the number of that licence;
8. If the other person holds an Australian credit licence – the number of that licence;
9. The foreign equivalent of the ACN, ABN, ARBN, AFSL or Australian credit licence number, together with the country in which the number was issued;
10. If the other person is registered or licensed in a foreign country to provide remittance services – details of that registration or licence;
11. The other person’s telephone number at its principal place of business;
12. The other person’s facsimile number at its principal place of business (if applicable);
13. The other person’s email address at its principal place of business (if applicable);
14. The full name and business address (not being a post box address), and, where applicable, any business registration number(s) of:
(a) if the other person is an individual – that individual; or
(b) if the other person comprises a partnership – the full name and address (not being a post box address) of each partner of the partnership;
(c) if the other person is a trust – the name of each trustee;
(d) if the other person is a company – the beneficial owner(s) of the company;
15. In respect of each of the key personnel of the other person, those individuals’:
(a) full name;
(b) date of birth;
(c) position or title;
(d) business telephone number;
(e) business facsimile number (if applicable);
(f) business email address (if applicable); and
(g) full address (not being a post box address);
16. A description of the business carried on or proposed to be carried on by the other person;
17. The date on which the other person commenced or is to commence offering registrable designated remittance services;
18. Whether the other person or any of its key personnel:
(a) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(b) has been subject to a civil penalty order made under the AML/CTF Act;
(c) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the other person or any of its key personnel (including by the other person or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the other person’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the other person and each of its key personnel;
Note: The above does not affect the operation of Part VIIC of the Crimes Act 1914, which means that certain convictions that are spent convictions are not required to be disclosed under these AML/CTF Rules.
19. Details of whether the other person is:
(a) a subsidiary of another entity or entities; or
(b) controlled by another entity or entities; and
if so
(c) the full names, addresses, positions and titles of the directors of the other entity or entities; and
(d) the ACN, ABN, ARBN (or foreign equivalent) of the other entity or entities (as applicable).
Part B Information to be obtained and retained by the applicant relating to the registration of a remittance affiliate pursuant to subsection 75(4) of the AML/CTF Act
1. The original or certified copy (as applicable) of a National Police Certificate (or foreign equivalent if one is able to be obtained) that has been issued within the 12 month period preceding the date of application for registration, for each of the key personnel of the other person;
2. The original or a certified copy (as applicable) of the report of the most recent due diligence assessment that has been carried out by the applicant of the suitability of the other person to be a remittance affiliate of the applicant;
3. The original or a certified copy (as applicable) of the consent of the registered remittance network provider to the registration of the other person as a remittance affiliate of that registered remittance network provider;
4. The full street address of each branch at which the other person provides or proposes to provide registrable designated remittance services (if applicable);
5. Information relating to the other person (as applicable):
If the person is a company
6. domestic company:
(a) if the company is registered as a proprietary company, the name of each director of the company;
7. registered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and
(c) the name of each director of the company;
8. unregistered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and if so:
(i) the full address of the company in its country of formation, incorporation or registration as registered; and
(ii) the name of each director of the company;
(c) if the company is not registered by the relevant foreign registration body, the full address of the principal place of business of the company in its country of formation or incorporation;
If the person is a trust
9. the type of trust;
10. (a) the full name and address (not being a post box address) of each trustee of the trust (if applicable); and
either
(b) the full name of each beneficiary in respect of the trust; or
(c) if the terms of the trust identify the beneficiaries by reference to membership of a class – details of the class;
If the person is a partnership
11. the full name and address (not being a post box address) of each partner;
If the person is an association (incorporated)
12. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is an association (unincorporated)
13. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is a registered co-operative
14. the full names of the officer holders, including the chairman, secretary or treasurer or equivalent officer in each case of the co-operative;
15. (a) the main destination(s) where money or property is to be received or is likely to be received as a result of a transfer by the other person under a designated remittance arrangement; and
(b) the main destination(s) from which money or property is to be transferred or is likely to be transferred by the other person under a designated remittance arrangement.
Schedule 3 – Information to be provided or relating to an application for registration as an independent remittance dealer or an application for registration as a remittance affiliate made by an independent remittance dealer
Part A Information to be provided by the applicant pursuant to paragraph 75B(3)(b) of the AML/CTF Act
1. The name of the applicant;
2. The business name(s) under which the applicant is carrying on a business, or proposes to carry on a business, of providing a registrable designated remittance service;
3. A description of whether the applicant is operating as an individual, company, partnership, trust or through any other legal structure;
4. The full street address of the person’s principal place of business at which the person provides or proposes to provide a designated service, not being a branch of that person;
5. If the applicant has an ACN or ARBN – that number;
6. If the applicant has an ABN – that number;
7. If the applicant holds an Australian financial services licence – the number of that licence;
8. If the applicant holds an Australian credit licence – the number of that licence;
9. The foreign equivalent of the ACN, ABN, ARBN, AFSL or Australian credit licence number, together with the country in which the number was issued;
10. If the applicant is registered or licensed in a foreign country to provide remittance services – details of that registration or licence;
11. The applicant’s telephone number at its principal place of business;
12. The applicant’s facsimile number at its principal place of business (if applicable);
13. The applicant’s email address at its principal place of business (if applicable);
14. The full name and business address (not being a post box address), and, where applicable, any business registration number(s) of:
(a) if the applicant is an individual – that individual;
(b) if the applicant comprises a partnership – the full name and address (not being a post box address) of each partner of the partnership;
(c) if the applicant is a trust – the name of each trustee;
(d) if the applicant is a company – the beneficial owner(s) of the company;
15. In respect of the authorised individual and each of the key personnel, those individuals’:
(a) full name;
(b) date of birth;
(c) position or title;
(d) business telephone number;
(e) business facsimile number (if applicable);
(f) business email address (if applicable); and
(g) full address (not being a post box address);
16. A description of the business carried on or proposed to be carried on by the applicant;
17. The date on which the applicant commenced or is to commence offering registrable designated remittance services;
18. Whether the applicant or any of its key personnel:
(a) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(b) has been the subject of a civil penalty order made under the AML/CTF Act;
(c) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the applicant or any of its key personnel (including by the applicant or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the applicant’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the applicant and each of its key personnel;
Note: The above does not affect the operation of Part VIIC of the Crimes Act 1914, which means that certain convictions that are spent convictions are not required to be disclosed under these AML/CTF Rules.
19. Details of whether the applicant is:
(a) a subsidiary of another entity or entities; or
(b) controlled by another entity or entities; and
if so
(c) the full names, addresses, positions and titles of the directors of the other entity or entities; and
(d) the ACN, ABN, ARBN (or foreign equivalent) of the other entity or entities (as applicable);
20. The following details of the registered remittance network provider of which the applicant is a remittance affiliate (if applicable):
(a) the name of the registered remittance network provider; and
(b) the registration number as specified by AUSTRAC of the registered remittance network provider.
.
Part B Information to be obtained and retained by the applicant pursuant to subsection 75(4) of the AML/CTF Act
1. The original or certified copy (as applicable) of a National Police Certificate (or foreign equivalent if one is able to be obtained) that has been issued within the 6 month period preceding the date of application for registration, for each of the key personnel of the applicant;
2. The original or a certified copy (as applicable) of the consent of the remittance network provider for the independent remittance dealer to make an application for registration as a remittance affiliate of the remittance network provider (if applicable);
3. The full street address of each branch at which the applicant provides or proposes to provide registrable designated remittance services (if applicable);
4. Information relating to the applicant (as applicable):
If the person is a company
5. domestic company:
(a) if the company is registered as a proprietary company, the name of each director of the company;
6. registered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and
(c) the name of each director of the company;
7. unregistered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and if so:
(i) the full address of the company in its country of formation, incorporation or registration as registered; and
(ii) the name of each director of the company;
(c) if the company is not registered by the relevant foreign registration body, the full address of the principal place of business of the company in its country of formation or incorporation;
If the person is a trust
8. the type of trust;
9. (a) the full name and address (not being a post box address) of each trustee of the trust (if applicable); and
either
(b) the full name of each beneficiary in respect of the trust; or
(c) if the terms of the trust identify the beneficiaries by reference to membership of a class – details of the class;
If the person is a partnership
10. the full name and address (not being a post box address) of each partner;
If the person is an association (incorporated)
11. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is an association (unincorporated)
12. (a) the full names of the officer holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is a registered co-operative
13. the full names of the officer holders, including the chairman, secretary or treasurer or equivalent officer in each case of the co-operative;
14. (a) the main destination(s) where money or property is to be received or is likely to be received as a result of a transfer by the applicant under a designated remittance arrangement; and
(b) the main destination(s) from which money or property is to be transferred or is likely to be transferred by the applicant under a designated remittance arrangement.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 57 Matters to be considered by the AUSTRAC CEO in considering applications for registration
57.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 75C(2)(b) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75C of the AML/CTF Act comes into effect.
57.2. In considering an application for registration of a person made under subsection 75B(1) or (2) of that Act, and without limiting the matters that the AUSTRAC CEO may have regard to in deciding whether the registration of the person would involve a significant level of money laundering, terrorism financing or people smuggling risk, the matters specified in paragraph 57.3 must be considered.
57.3. For the purposes of paragraph 57.2, the matters specified are:
(1) the information set out in Schedules 1, 2, or 3, as the case may be, of Chapter 56 to be contained in the application for registration; and
(2) the declarations required under paragraphs 56.2, 56.3, 56.4 or 56.5, as the case may be, of Chapter 56 of the AML/CTF Rules.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 58 Matters to be considered by the AUSTRAC CEO when deciding to cancel a registration
58.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of paragraph 75G(1)(c) and subsection 75G(3) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75G of the AML/CTF Act comes into effect.
58.2. The AUSTRAC CEO must have regard to the matters specified in the Schedule to this Chapter when deciding if it is appropriate to cancel the registration of a person under paragraph 75G(1)(c) of the AML/CTF Act.
Note: Section 75Q of the AML/CTF Act requires that, except in urgent cases, the AUSTRAC CEO must provide a person with the opportunity to make a submission before any decision is taken to cancel their registration.
58.3. The AUSTRAC CEO may publish on AUSTRAC’s website, or in any manner which is considered appropriate, a list of the names of persons whose registration has been cancelled and the date the cancellation took effect.
58.4. In this Chapter:
(1) ‘beneficial owner’ means, in respect of a company, any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
(2) ‘enforcement action’ includes any action of a corrective nature in respect of an alleged breach of a law taken by a regulatory body of the Commonwealth or a State or Territory, or a government body;
(3) ‘fraud’ means dishonestly obtaining a benefit by deception or other means;
(4) ‘key personnel’ means:
(a) in the case of a company, corporation sole or body politic, is a natural person that is;
(i) a beneficial owner; or
(ii) an officer as defined in section 9 of the Corporations Act 2001, or an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy;
(b) in the case of an individual, trust or partnership, is a natural person that is an employee or agent of the individual, trust or partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual, trust or partnership;
(5) ‘people smuggling’ means conduct that amounts to:
(a) an offence against Division 73 of the Criminal Code; or
(b) an offence against Subdivision A, Division 12, Part 2 of the Migration Act 1958; or
(c) an offence against a law of a foreign country or of a part of a foreign country that corresponds:
(i) to an offence referred to in paragraph (a) or (b); or
(ii) with the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime;
(6) ‘person’ has the same meaning as in the AML/CTF Act;
(7) ‘serious offence’ means an offence which is:
(a) an offence against a law of the Commonwealth, or a law of a State or Territory, punishable on indictment by imprisonment for life or 2 or more years, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence) regardless of whether the offence proceeds summarily or on indictment; or
(b) an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence.
A ‘serious offence’ in relation to a person other than an individual means an offence which would have been a serious offence if the person had been an individual;
(8) ‘terrorism’ means conduct that amounts to:
(a) an offence against Division 101 or 102 of the Criminal Code; or
(b) an offence against a law of a State or Territory that
corresponds to an offence referred to in paragraph (a); or
(c) an offence against a law of a foreign country or of a part of a
foreign country that corresponds to an offence referred to in
paragraph (a).
Schedule
1. Whether the person or any of its key personnel:
(a) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(b) has been subject to a civil penalty order made under the AML/CTF Act;
(c) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the person or any of its key personnel (including by the person or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the person’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the person and each of its key personnel;
Note: The above does not affect the operation of Part VIIC of the Crimes Act 1914, which means that certain convictions which are spent convictions are not required to be disclosed under these AML/CTF Rules.
2. The original or a certified copy (as applicable) of the report of the most recent due diligence assessment that has been carried out on the person, by the registered remittance network provider who has made the application, of the suitability of the person to be a remittance affiliate of the registered remittance network provider.
3. Whether the information provided in the application for registration made under subsection 75B(1) or (2), was not true and correct at the time the application was made.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992
Chapter 59 Matters to be considered by the AUSTRAC CEO when deciding to suspend a registration
59.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 75H(1) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75H of the AML/CTF Act comes into effect.
59.2. Subject to paragraphs 59.3, 59.4 and 59.5, the AUSTRAC CEO may suspend for a specified period of time the registration of a person.
Note: Section 75Q of the AML/CTF Act requires that, except in urgent cases, the AUSTRAC CEO must provide a person with the opportunity to make a submission before any decision is taken to suspend their registration.
59.3. In respect to matters relating to the grounds for suspension, any of the following are grounds for suspension of registration:
(1) Whether the person or any of its key personnel:
(a) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(b) has been the subject of a civil penalty order made under the AML/CTF Act;
(c) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the person or any of its key personnel (including by the person or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the person’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the person and each of its key personnel;
(2) The AUSTRAC CEO is satisfied on reasonable grounds that the person has contravened a civil penalty provision of the AML/CTF Act;
(3) The AUSTRAC CEO has commenced action to cancel the registration of the person under section 75G of the AML/CTF Act, and that action has not been completed;
(4) The person has contravened:
(a) a condition imposed on their registration under subsection 75E(1); or
(b) a provision of the AML/CTF Act;
(5) The AUSTRAC CEO suspects on reasonable grounds that the person may contravene a provision of the AML/CTF Act;
(6) The AUSTRAC CEO reasonably believes that information provided in the application for registration made under subsection 75B(1) or (2), was not true and correct at the time the application was made.
59.4. If the AUSTRAC CEO decides that the registration of a person is to be suspended:
(1) the AUSTRAC CEO must within 7 days give the person written notice of the suspension;
(2) the notice given under paragraph 59.4(1) must:
(a) set out the grounds on which the decision was made;
(b) specify the period of suspension;
(c) specify the date on which the suspension will commence;
(d) specify when the suspension will cease;
(e) include a statement that the suspension may be reviewed if the AUSTRAC CEO becomes aware of material information relevant to the grounds as specified under subparagraph 59.4(2)(a); and
(f) include a statement setting out particulars of the person’s right to have the decision reviewed;
(3) A person whose registration is suspended may apply to the AUSTRAC CEO for review of the decision;
(4) An application for review must:
(a) be in writing; and
(b) be in the approved form; and
(c) set out the reasons why the decision should be reviewed; and
(d) be given to the AUSTRAC CEO within 14 days after the receipt of the notice given under paragraph 59.4(1).
59.5. A suspension made under paragraph 59.2 cannot commence prior to the date specified in subparagraph 59.4(2)(c).
59.6. The AUSTRAC CEO may publish the notice of suspension or extracts from that notice, on AUSTRAC’s website or in any manner which is considered appropriate.
59.7. The AUSTRAC CEO may, in writing, inform a registered remittance network provider of the suspension of a registered remittance affiliate of the provider, or inform a registered remittance affiliate of the provider of the suspension of a registered remittance network provider.
59.8. The AUSTRAC CEO may remove the entry relating to one or more of the registrations of the person from the Remittance Sector Register, for the period that the registration is suspended.
59.9. A reference in this Chapter to a person or any key personnel of the person who have been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914, or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence.
59.10. In this Chapter:
(1) ‘beneficial owner’ means, in respect of a company, any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
(2) ‘enforcement action’ includes any action of a corrective nature in respect of an alleged breach of a law taken by a regulatory body of the Commonwealth or a State or Territory, or a government body;
(3) ‘fraud’ means dishonestly obtaining a benefit by deception or other means;
(4) ‘key personnel’ means:
(a) in the case of a company, corporation sole or body politic, is a natural person that is;
(i) a beneficial owner; or
(ii) an officer as defined in section 9 of the Corporations Act 2001, or an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy;
(b) in the case of an individual, trust or partnership, is a natural person that is an employee or agent of the individual, trust or partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual, trust or partnership;
(5) ‘people smuggling’ means conduct that amounts to:
(a) an offence against Division 73 of the Criminal Code; or
(b) an offence against Subdivision A, Division 12, Part 2 of the Migration Act 1958; or
(c) an offence against a law of a foreign country or of a part of a foreign country that corresponds:
(i) to an offence referred to in paragraph (a) or (b); or
(ii) with the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime;
(6) ‘person’ has the same meaning as the AML/CTF Act;
(7) ‘serious offence’ means an offence which is:
(a) an offence against a law of the Commonwealth, or a law of a State or Territory, punishable on indictment by imprisonment for life or 2 or more years, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence) regardless of whether the offence proceeds summarily or on indictment; or
(b) an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence.
A ‘serious offence’ in relation to a person other than an individual means an offence which would have been a serious offence if the person had been an individual;
(8) ‘terrorism’ means conduct that amounts to:
(a) an offence against Division 101 or 102 of the Criminal Code; or
(b) an offence against a law of a State or Territory that
corresponds to an offence referred to in paragraph (a); or
(c) an offence against a law of a foreign country or of a part of a
foreign country that corresponds to an offence referred to in
paragraph (a).
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 60 Change in registration details regarding the person
60.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of paragraphs 75M(1)(e) and (2)(b) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 75M of the AML/CTF Act comes into effect.
60.2. For the purpose of paragraph 75M(1)(e), the following matters are specified:
(1) a material change in any of the registration details of the person as set out in Part A of Schedules 1, 2 and 3 (except for the information specified in paragraph 19 of Schedules 1, 2 and 3) of Chapter 56, as the case may be, including:
(a) any change to the registration details of the key personnel, including any change in the number of key personnel;
(b) whether the person or any of its key personnel:
(i) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the Financial Transaction Reports Act 1988 (FTR Act);
(ii) has been the subject of a civil penalty order made under the AML/CTF Act;
(iii) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the person or any of its key personnel (including by the person or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the person’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the person and each of its key personnel;
(c) whether the person has become a subsidiary of another entity;
(d) if the person was, when registered, a subsidiary of an entity, whether the person has become a subsidiary of a different entity;
(e) whether the person is now controlled by another entity;
(f) if the person was, when registered, controlled by an entity, whether the person is now controlled by a different entity;
(g) if the person is a company – the deregistration of the company by the Australian Securities and Investments Commission;
(h) if the person is a trust:
(i) information that the trust has been dissolved; or
(ii) any change to the identity or registration details of the trustees, including any change in the number of trustees;
(i) if the person is a partnership:
(i) information that the partnership has been dissolved; or
(ii) any change to the registration details of the current partners, including any change in the number of partners;
(j) if the person is an individual – information that the individual is deceased;
(k) if the person is an unincorporated association – information that the association has ceased to exist;
(l) if the person is an incorporated association – information that the association has ceased to exist;
(m) if the person is a registered co-operative – information that the co-operative has ceased to exist;
(n) information that two or more persons whose names and registration details as currently on the Remittance Sector Register have merged or amalgamated, and the merged or amalgamated entity has commenced, or has continued, to provide a designated service;
(o) that the person no longer provides a designated service.
60.3. Advice in regard to a material change relating to the person’s registration details may be made by a person (the requestor) who is not the person or an agent of the person, if:
(1) the request provides evidence of the requestor’s authority to make that request, to the satisfaction of the AUSTRAC CEO, and
(2) the person is an individual who is deceased, or
(3) the person is a corporate body which has ceased to exist; or
(4) the person is an individual who no longer has capacity to manage their affairs.
60.4. For the purpose of paragraph 75M(2)(b), the following matters are specified:
(1) a material change in any of the registration details of the person as set out in Part A (except for the information specified in paragraph 19 of Schedule 2) of Chapter 56, including:
(a) any change to the registration details of the key personnel, including any change in the number of key personnel;
(b) whether the person or any of its key personnel:
(i) has been charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act, or an offence under the FTR Act;
(ii) has been the subject of a civil penalty order made under the AML/CTF Act;
(iii) has been the subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the person or any of its key personnel (including by the person or any of its key personnel consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct) and which reflected adversely on the person’s competence, diligence, judgement, honesty or integrity;
and if so, the details of each instance as the case may be, for the person and each of its key personnel;
(c) whether the person has become a subsidiary of another entity;
(d) if the person was, when registered, a subsidiary of an entity, whether the person has become a subsidiary of a different entity;
(e) whether the person is now controlled by an entity;
(f) if the person was, when registered, controlled by an entity, whether the person is now controlled by a different entity;
(g) if the person is a company – the deregistration of the company by the Australian Securities and Investments Commission;
(h) if the person is a trust:
(i) information that the trust has been dissolved; or
(ii) any change to the registration details of the current trustees, including any change in the number of trustees;
(i) if the person is a partnership:
(i) information that the partnership has been dissolved; or
(ii) any change to the registration details of the current partners, including any change in the number of partners;
(j) if the person is an individual – information that the individual is deceased;
(k) if the person is an unincorporated association – information that the association has ceased to exist;
(l) if the person is an incorporated association – information that the association has ceased to exist;
(m) if the person is a registered co-operative – information that the co-operative has ceased to exist;
(n) information that two or more persons whose names and registration details as currently on the Remittance Sector Register have merged or amalgamated, and the merged or amalgamated entity has commenced, or has continued, to provide a designated service;
(o) that the person no longer provides a designated service.
60.5 Advice in regard to a material change relating to the person’s registration details may be made by a person (the requestor) who is not the person or an agent of the person, if:
(1) the request provides evidence of the requestor’s authority to make that request, to the satisfaction of the AUSTRAC CEO, and
(2) the person is an individual who is deceased, or
(3) the person is a corporate body which has ceased to exist; or
(4) the person is an individual who no longer has capacity to manage their affairs.
60.6. To avoid doubt, these AML/CTF Rules do not affect the operation of Part VIIC of the Crimes Act 1914, including the application of Part VIIC to disclosable convictions.
Note: This means that certain convictions which are spent convictions are not required to be disclosed under these AML/CTF Rules.
60.7. In this Chapter:
(1) ‘control’ has the meaning given by section 50AA of the Corporations Act 2001;
(2) ‘enforcement action’ includes any action of a corrective nature in respect of an alleged breach of a law taken by a regulatory body of the Commonwealth or a State or Territory, or a government body;
(3) ‘entity’ has the same meaning as in the Corporations Act 2001;
(4) ‘key personnel’:
(a) in the case of a company, corporation sole or body politic, is a natural person that is;
(i) a beneficial owner; or
(ii) an officer as defined in section 9 of the Corporations Act 2001, or an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy;
(b) in the case of an individual, trust or partnership, is a natural person that is an employee or agent of the individual, trust or partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual, trust or partnership;
(5) ‘subsidiary’ has the same meaning as in the Corporations Act 2001.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 61 Reporting obligations of remittance affiliates
61.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purpose 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.
61.2. An obligation imposed by subsection 43(2) or 45(2) of the AML/CTF Act upon a remittance affiliate of a remittance network provider to give a report to the AUSTRAC CEO is taken instead to be an obligation imposed upon, and must be discharged by, the remittance network provider.
61.3. If a suspicious matter reporting obligation imposed by subsection 41(1) of the AML/CTF Act upon a remittance affiliate of a remittance network provider arises, that obligation may be met by the remittance network provider under a written agreement in place between the remittance affiliate and the remittance network provider.
61.4. In this Chapter:
(1) ‘remittance affiliate’ means a reporting entity:
(a) that provides a designated service covered by item 31 or 32 of table 1 in section 6 of the AML/CTF Act; and
(b) provides that service as part of a network of persons referred to in item 32A of that table operated by a remittance network provider;
(2) ‘remittance network provider’ means a reporting entity that provides a designated service covered by item 32A of table 1 in section 6(2) of the AML/CTF Act.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 62 Reporting Entities Roll
62.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 51C(4) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 51C of the AML/CTF Act comes into effect.
62.2. If the AUSTRAC CEO considers on reasonable grounds that an entry on the Reporting Entities Roll (the Roll) is incorrect or incomplete, the AUSTRAC CEO may correct, or make complete, the entry.
62.3. (1) If the AUSTRAC CEO corrects or makes complete a person’s
name and enrolment details on the Roll, the AUSTRAC CEO must, (if possible), give a written notice to the person; and
(2) The notice must set out:
(a) the changes to the entry that the AUSTRAC CEO has made; and
(b) the date on which the changes were made.
62.4. If the AUSTRAC CEO considers on reasonable grounds that a person no longer provides a designated service, the AUSTRAC CEO may remove the person’s name and enrolment details from the Roll.
62.5. For the purposes of paragraph 62.4, the matters that may be considered by the AUSTRAC CEO when forming an opinion include:
(1) a change in any of the person’s enrolment details set out in Part A of Schedule 1 of Chapter 63;
(2) if the person is a company – the deregistration of the company by the Australian Securities and Investments Commission;
(3) if the person is a trust – information that the trust has been dissolved;
(4) if the person is a partnership – information that the partnership has been dissolved;
(5) if the person is an individual – information that the individual is deceased;
(6) if the person is an unincorporated association – information that the association has ceased to exist;
(7) if the person is an incorporated association – information that the association has ceased to exist;
(8) if the person is a registered co-operative – information that the co-operative has ceased to exist;
(9) if the person is a government body – information that the government body has ceased to exist;
(10) information that two or more persons whose names and enrolment details are currently on the Roll have merged or amalgamated, and the merged or amalgamated entity has commenced, or has continued, to provide a designated service;
(11) information that the person no longer provides a designated service; or
(12) any other information that the AUSTRAC CEO considers is relevant to whether the person continues to provide a designated service or has changed its legal structure to the extent that names and enrolment details should be removed.
62.6. (1) If the AUSTRAC CEO has formed the opinion that the person
no longer provides a designated service and has removed the person’s name and enrolment details, the AUSTRAC CEO must (if possible) give a written notice to the person, or in the case of a deceased individual, the administrator of that individual’s estate.
(2) The notice must set out:
(a) the reason for the removal by the AUSTRAC CEO; and
(b) the date on which the person’s name and enrolment details were removed from the Roll.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 63 Information to be provided or in relation to an application for enrolment as a reporting entity
63.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 51C(4) and paragraph 51E(2)(b) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 51C and section 51E of the AML/CTF Act comes into effect.
63.2. The enrolment details, in relation to a person, are the details required to be provided as set out in Part A of the Schedule to this Chapter.
63.3. A person making an application for enrolment as a reporting entity must:
(1) provide in their application the information set out in Part A of the Schedule to this Chapter;
(2) obtain and retain the information set out in Part B of the Schedule to this Chapter; and
(3) include in their application a declaration made by the authorised individual that the information in the Schedule to this Chapter is true, accurate and complete.
63.4. An application for enrolment as a reporting entity may be made by an agent of the person on behalf of the person, only if:
(1) there is a current written agreement in place between the agent of the person and the person; or the person has provided to the agent of the person a written authority;
(2) that written agreement or written authority authorises the agent to make an application for enrolment on behalf of the person;
(3) the application of the agent on behalf of the person contains the information set out in Part A of the Schedule to this Chapter;
(4) the agent has obtained and retained the information set out in Part B of the Schedule to this Chapter; and
(5) the application includes a declaration by the agent that the information in the Schedule to this Chapter is true, accurate and complete.
63.5. In this Chapter:
(1) ‘ADI’ (short for authorised deposit-taking institution) has the same meaning as in the AML/CTF Act;
(2) ‘annual financial statements’ means:
(a) if the person has an obligation under Part 2M.3 of the Corporations Act 2001:
(i) the financial report (or foreign equivalent) for the most recent financial year before the census date;
(b) if the person does not have an obligation under Part 2M.3 of the Corporations Act 2001:
(i) those consolidated documents which are used to calculate the EBITDA for the most recent financial year before the census date;
(3) ‘Australian Government Entity’ means:
(a) the Commonwealth, a State or a Territory; or
(b) an agency or authority of:
(i) the Commonwealth; or
(ii) a State: or
(iii) a Territory; or
(c) a local governing body established by or under a law of the Commonwealth, a State or Territory, other than a body whose sole or principal function is to provide a particular service, such as the supply of electricity or water;
(4) ‘authorised individual’ means a natural person who is:
(a) a beneficial owner;
(b) an officer as defined in section 9 of the Corporations Act 2001;
(c) an agent of the person;
(d) a nominee pursuant to subsection 8(2) of the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy (Collection) Act 2011 who has been authorised in writing by the person to act on their behalf as a nominee; or
(e) an employee of the person who has been authorised in writing by the person to act on their behalf;
(5) ‘beneficial owner’, in respect of a company, means any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
(6) ‘company’ has the same meaning as in the Corporations Act 2001;
(7) ‘consolidated documents’ means those documents which contain financial information relating to the calculation of earnings;
(8) ‘earnings’, in relation to a leviable entity, means:
(a) if the leviable entity is an ADI or a registered financial corporation – the total profit before tax (not adjusted for significant items), depreciation and amortisation (PBTDA); or
(b) if the leviable entity is a member of a group of leviable entities and any member of that group is an ADI or a registered financial corporation – the total profit before tax (not adjusted for significant items), depreciation and amortisation (PBTDA); or
(c) in any other case – the total earnings before tax (not adjusted for significant items), interest, depreciation and amortisation (EBITDA);
of that entity, for a year ending in the previous financial year;
Note: The above definition recognises that entities may have annual accounting periods that end on other than 30 June in any year and that the most recent annual earnings figure for an entity is to be the basis of the large entity component of the levy.
(9) ‘financial report’ has the same meaning as in section 9 of the Corporations Act 2001;
(10) ‘foreign company’ has the same meaning as in Chapter 1 of the AML/CTF Rules;
(11) ‘group of leviable entities’ means all leviable entities that are related bodies corporate;
(12) ‘ultimate holding company’ has the same meaning as in the Corporations Act 2001;
(13) ‘leviable entity’, in relation to the financial year, has the same meaning as in the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy Act 2011;
(14) ‘levy’ means levy imposed by the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy Act 2011;
(15) ‘person’ has the same meaning as in the AML/CTF Act;
(16) ‘registered financial corporation’ has the same meaning as ‘registered entity’ in the Financial Sector (Collection of Data) Act 2001;
(17) ‘related bodies corporate’ has the same meaning as in section 50 of the Corporations Act 2001;
(18) ‘significant items’ means a revenue or an expense from ordinary activities of such size, nature or incidence that its disclosure is relevant to the Australian Accounting Standard AASB 1018 (5.4);
(19) ‘subsidiary’ has the same meaning as in the Corporations Act 2001.
63.6 In these Rules, the terms ‘domestic company’, ‘registered co-operative’, ‘registered foreign company’, ‘relevant foreign registration body’ and ‘unregistered foreign company’ have the same respective meanings as in Chapter 1 of the AML/CTF Rules.
Schedule – Information to be provided or relating to a person applying for enrolment
Part A Enrolment details - the information to be provided by a person applying for enrolment pursuant to section 51E of the AML/CTF Act
1. The name of the person;
2. The business name(s) under which the person is carrying on a business, or proposes to carry on a business, of providing a designated service;
3. A description of whether the person is operating as an individual, company, partnership, trust or through any other legal structure;
4. A description of whether the person:
(a) provides a designated service at or through a permanent establishment in Australia;
(b) is a resident of Australia and the designated service is provided at or through a permanent establishment of the person in a foreign country; or
(c) is a subsidiary of a company that is a resident of Australia and the designated service is provided at or through a permanent establishment of the person in a foreign country;
5. The designated service or services which the person provides or proposes to provide;
6. The date on which the person commenced to provide or proposes to provide, designated services;
7. A description of the business carried on by the person;
8. The address of the registered office of the person (if applicable);
9. The full street address of the person’s principal place of business at which the person provides or proposes to provide a designated service, not being a branch of that person;
10. The postal address of the person (if applicable);
11. In regard to the registration of a business carrying on a business, or proposing to carry on a business, of providing a designated service, the following, if applicable:
(a) the ACN;
(b) the ARBN;
(c) the ABN;
(d) the Australian financial services licence number;
(e) the Australian credit licence number;
(f) the foreign equivalent of the ACN, ABN, ARBN, AFSL or Australian credit licence number, together with the country in which the number was issued;
12. The person’s telephone number at its principal place of business;
13. The person’s facsimile number at its principal place of business (if applicable);
14. The person’s email address at its principal place of business (if applicable);
15. The person’s website address (if applicable);
16. The full name and business address (not being a post box address), and, where applicable, any business registration number(s) of:
(a) if the person is a individual – that individual;
(b) if the person comprises a partnership – two partners; or
(c) if the person is a trust – the trustee;
17. If the person provides the item 31, 32 and 32A designated services in table 1 of subsection 6(2) of the AML/CTF Act, whether the person provides those designated services as a:
(a) remittance network provider;
(b) an independent remittance dealer; or
(c) a remittance affiliate of a registered remittance network provider;
18. Whether the person has any obligations under the Financial Transaction Reports Act 1988, and if so, the details of those obligations;
19. Whether the person is a related body corporate to a reporting entity;
20. If applicable, in respect of the ultimate holding company of the group of related bodies corporate of which the person is a member:
(a) the name of the ultimate holding company;
(b) the ACN;
(c) the ARBN;
(d) the ABN;
(e) the Australian financial services licence number;
(f) the Australian credit licence number;
(g) the foreign equivalent of the ACN, ABN, ARBN, AFSL or Australian credit licence number, together with the country in which the number was issued;
(h) the address (not being a post box address);
Earnings information and the Supervisory Cost Recovery Levy
21. The earnings of the person for a year ending in the financial year immediately preceding the application for enrolment, if the circumstances described below apply:
Note: If an earnings figure is required to be provided it may need to be updated each year as required by the AML/CTF Rules made under section 51F of the AML/CTF Act which deal with the requirement to update 'enrolment details'.
When earnings details have to be provided
(i) the earnings of that entity are equal to or greater than $100,000,000; or
(ii) that entity is part of a group of leviable entities whose earnings are equal to or greater than $100,000,000; or
(iii) that entity is a foreign company, where the earnings of the entity derived from operations in Australia are equal to or greater than $100,000,000; or
(iv) that entity is a foreign company and part of a group of leviable entities, where the total earnings of the group of leviable entities derived from operations in Australia are equal to or greater than $100,000,000; or
(v) that entity is a foreign company or a subsidiary of a foreign company and the earnings of the entity from operations in Australia are:
(A) less than $100,000,000, and
(B) the total earnings of that leviable entity and its related bodies corporate is equal to or greater than $100,000,000;
comprising:
(vi) where the person is an ADI or a Registered Financial Corporation, and is not a foreign company:
(A) the total profit before tax (not adjusted for significant items), depreciation and amortisation (PBTDA); or
(vii) where the person is an ADI or a Registered Financial Corporation, and the person is a foreign company:
(A) the PBTDA derived from its operations in Australia; and
(B) the total PBTDA derived from its operations in Australia and overseas;
(viii) where the person is not an ADI or a Registered Financial Corporation, and is not a foreign company:
(A) the total earnings before tax (not adjusted for significant items), interest, depreciation and amortisation (EBITDA);
(ix) where the person is not an ADI or a Registered Financial Corporation, and is a foreign company:
(A) the EBITDA derived from its operations in Australia; and
(B) the total EBITDA derived from its operations in Australia and overseas;
22. The billing address of the person;
23. The business contact details of the AML/CTF Compliance Officer of the person, comprising:
(a) full name;
(b) position or title;
(c) date of birth (optional);
(d) telephone number;
(e) facsimile number (if applicable);
(f) email address; and
(g) postal address;
24. The business contact details of the individual completing the application for enrolment, comprising:
(a) full name;
(b) position or title;
(c) date of birth (optional);
(d) telephone number;
(e) facsimile number (if applicable);
(f) email address; and
(g) postal address;
25. The business contact details of the individual, if different from the AML/CTF Compliance Officer, relevant to matters relating to the levy, comprising:
(a) full name;
(b) position or title;
(c) date of birth (optional);
(d) telephone number;
(e) facsimile number (if applicable);
(f) email address; and
(g) postal address;
26. Whether the person is exempt from Part 7 of the AML/CTF Act in full;
27. Whether the person provides the item 31 and 32 designated services in table 1 of subsection 6(2) of the AML/CTF as a remittance affiliate;
28. Whether the person has fewer than 5 employees.
Part B Information to be obtained and retained by a person applying for enrolment pursuant to subsection 51C(4) of the AML/CTF Act
1. The annual financial statements of the person relating to the most recent financial year before the census date.
If the person is a company
2. domestic company:
(a) if the company is registered as a proprietary company, the name of each director of the company;
3. registered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and
(c) the name of each director of the company;
4. unregistered foreign company:
(a) the country in which the company was formed, incorporated or registered;
(b) whether the company is registered by the relevant foreign registration body; and if so:
(i) the full address of the company in its country of formation, incorporation or registration as registered; and
(ii) the name of each director of the company;
(c) if the company is not registered by the relevant foreign registration body, the full address of the principal place of business of the company in its country of formation or incorporation;
If the person is a trust
5. The full name and address (not being a post box address) of each trustee of the trust (if applicable);
If the person is a partnership
6. the full name and address (not being a post box address) of each partner;
If the person is an association (incorporated)
7. (a) the full names of the office holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is an association (unincorporated)
8. (a) the full names of the office holders, including the chairman, secretary and treasurer or equivalent officer in each case of the association; and
(b) the full names of any members of the governing committee (howsoever described);
If the person is a registered co-operative
9. the full names of the office holders, including the chairman, secretary or treasurer or equivalent officer in each case of the co-operative;
If the person is a government body
10. whether the government body is an Australian government entity;
11. whether the government body is established under legislation of a foreign country and the name of that country;
For applications for enrolment made by an agent of the person
12. the original or certified copy of the agreement or authority between the agent and the person for the duration of that agreement or authority.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 64 Changes in enrolment details in respect to a reporting entity
64.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of subsection 51F(1) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 51F of the AML/CTF Act comes into effect.
64.2. For the purposes of subsection 51F(1) the following matters are specified:
(1) any change in any of the person’s enrolment details set out in Part A of the Schedule to Chapter 63, including:
(a) if applicable, an updated annual earnings figure as soon as that becomes available;
(b) where two or more persons whose names and enrolment details are currently on the Roll have merged or amalgamated, and the merged or amalgamated entity has commenced, or has continued, to provide a designated service.
64.3. Notification of a change in the person’s enrolment details may be made by an agent of the person on behalf of the person, only if:
(1) there is a current written agreement in place between the agent of the person and the person, or the person has provided to the agent of the person a written authority;
(2) that agreement or written authority authorises the agent to notify, on behalf of the person, a change in the enrolment details of the person on the Reporting Entities Roll; and
(3) the notification of a change in a person’s enrolment details includes a declaration by the agent that the information is true, accurate and complete.
64.4 A request for change of a person’s enrolment details may be made by a person (the requestor) who is not the person or an agent of the person, if:
(1) the request provides evidence of the requestor’s authority to make that request, to the satisfaction of the AUSTRAC CEO, and
(2) the person is a corporate body which has ceased to exist; or
(3) the person is an individual who no longer has capacity to manage their affairs.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
Chapter 65 Removal of entries from the Reporting Entities Roll
65.1. These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of paragraph 51G(2)(b) of that Act and in reliance on section 4 of the Acts Interpretation Act 1901. These Rules come into effect on the date that section 51G of the AML/CTF Act comes into effect.
65.2. A request made by a person to the AUSTRAC CEO to remove their name and enrolment details from the Reporting Entities Roll must:
(1) contain the information set out in the Schedule to this Chapter; and
(2) include a declaration made by the authorised individual that the information in the Schedule of this Chapter is true, accurate and complete.
65.3. A request for removal from the Reporting Entities Roll may be made by an agent of the person on behalf of the person, only if:
(1) there is a current written agreement in place between the agent of the person and the person, or the person has provided to the agent of the person a written authority;
(2) that agreement or written authority authorises the agent to request, on behalf of the person, the removal of the person from the Reporting Entities Roll;
(3) the request for removal by the agent contains the information set out in the Schedule to this Chapter; and
(4) the request for removal includes a declaration by the agent that the information is true, accurate and complete.
65.4. A request for change of a person’s enrolment details may be made by a person (the requestor) who is not the person or an agent of the person, if:
(1) the request provides evidence of the requestor’s authority to make that request, to the satisfaction of the AUSTRAC CEO, and
(2) the person is an individual who is deceased, or
(3) the person is a corporate body which has ceased to exist; or
(4) the person is an individual who no longer has capacity to manage their affairs; or
(5) a request for change of a person’s enrolment details may be made by a person (the requestor) who is not the person or an agent of the person, if:
(1) the request provides evidence of the requestor’s authority to make that request, to the satisfaction of the AUSTRAC CEO, and
(2) the person is an individual who is deceased, or
(3) the person is a corporate body which has ceased to exist; or
(4) the person is an individual who no longer has capacity to manage their affairs.
.
65.5. In this Chapter:
(1) ‘authorised individual’ means a natural person who is:
(a) a beneficial owner;
(b) an officer as defined in section 9 of the Corporations Act 2001;
(c) an agent of the person;
(d) a nominee pursuant to subsection 8(2) of the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy (Collection) Act 2011 who has been authorised in writing by the person to act on their behalf as a nominee; or
(e) an employee of the person who has been authorised in writing by the person to act on their behalf;
(2) ‘beneficial owner’, in respect of a company, means any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
(3) ‘company’ has the same meaning as in the Corporations Act 2001;
(4) ‘person’ has the same meaning as in the AML/CTF Act.
Schedule – Information to be provided in a request for removal from the Reporting Entities Roll
1. The name of the person;
2. The business name(s) under which the person is carrying on a business, or was carrying on a business, of providing a designated service;
3. If applicable, the address of the principal place of business of the person;
4. If applicable, the postal address of the person;
5. If applicable:
(a) the ACN;
(b) the ARBN;
(c) the ABN;
(d) the Australian financial services licence number;
(e) the Australian credit licence number;
(f) any other unique identifying number relevant to the registration of the business, including any that relate to a business or trading name; not included in subparagraphs (a) to (e) above;
(g) any number relevant to the person which has been allocated by AUSTRAC in regard to the person’s enrolment on the Reporting Entities Roll;
6. The person’s telephone number at its principal place of business;
7. The person’s facsimile number at its principal place of business (if applicable);
8. The person’s email address at its principal place of business (if applicable);
9. The date of the application requesting removal from the Reporting Entities Roll;
10. A statement that the person requests the AUSTRAC CEO to remove their name and enrolment details from the Reporting Entities Roll;
11. The date on which the person requests their name and enrolment details to be removed from the Reporting Entities Roll, if different from the date of the application;
12. The person’s reason for requesting their removal from the Reporting Entities Roll, for example:
(a) the person no longer provides a designated service;
(b) the person is an individual who is deceased;
(c) the person is a corporate body which has ceased to exist;
(d) two or more persons whose names and enrolment details are currently on the Reporting Entities Roll have merged or amalgamated, and the merged or amalgamated entity has commenced, or has continued, to provide a designated service.
Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act. For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.
