Financial Intelligence Agency Act 2007
FINANCIAL INTELLIGENCE AGENCY ACT 2007



BERMUDA

2007 : 22

FINANCIAL INTELLIGENCE AGENCY ACT 2007

Date of Assent: 26 June 2007

Operative Date: 15 November 2008


ARRANGEMENT OF SECTIONS

Preliminary

1 Short title and commencement
2 Interpretation

Establishment of the FIA

3 Establishment of the FIA

The Board of the FIA

4 The Board of FIA
5 Tenure of office of members;

procedures for meetings of the
Board

Directors and Staff of the FIA

6 Employment of officers,
servants and agents

7 Director of the FIA

Financial provisions

8 Funds of the FIA
9 Financial year

10 Expenditure budget
11 Accounts of the FIA
12 Annual reports
13 Publication of annual report

and accounts

Function and Powers of the FIA

14 Functions of the FIA
15 Freezing of funds
16 Obtaining information

Restricted Information

17 Restricted information

Disclosure of Information by and to
the FIA

18 Permitted disclosure
19 National and international

cooperation
20 Disclosure of information to

the FIA


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FINANCIAL INTELLIGENCE AGENCY ACT 2007


2 1989 Revision



21 Restrictions on further
disclosure

Consequential amendments

22 Consequential amendments

SCHEDULE


WHEREAS it is expedient to establish an independent agency to
receive reports of suspicious transactions from financial institutions and
other persons, to analyse information and to disseminate it to law
enforcement authorities, and for connected purposes:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Preliminary

Short title and commencement
1 This Act may be cited as the Financial Intelligence Agency Act
2007 and shall come into operation on such date as the Minister may
appoint by notice published in the Gazette.

Interpretation
2 (1) In this Act, unless the context otherwise requires —

“banking institution” means an institution licensed under the
Banks and Deposit Companies Act 1999;

“Board” means the Board of Directors of FIA established under
section 4;

“Director” means the Director of FIA appointed under section 7;

“FIA” means the Financial Intelligence Agency established under
section 3;

“foreign financial intelligence authority” means a competent
authority which, in a country or territory outside Bermuda
exercises functions corresponding to the functions of FIA
under this Act;

"Minister" means the Minister responsible for justice;

“money laundering offence” means an offence under section 43,
44 or 45 of the Proceeds of Crime Act 1997 or section 8 of the
Anti-Terrorism (Financial and Other Measures) Act 2004 and
includes any act which would constitute such an offence if
done in Bermuda;

“non-executive members of the Board” means the members of
the Board other than the Director;

“relevant institution” has the meaning given in subsection (2);

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“terrorist finance offence” means an offence under any of
sections 5 to 8 of the Anti-Terrorism (Financial and Other
Measures) Act 2004.

(2) In this Act “relevant institution” means ⎯

(a) a banking institution; or

(b) an institution falling within a class of institutions
designated as relevant institutions by order of the
Minister.

(3) The Minister may by order subject to affirmative resolution
procedure designate institutions for the purposes of subsection (2).

Establishment of the FIA

Establishment of the FIA
3 There shall be established a body corporate to be known as the
Financial Intelligence Agency (‘FIA’) with perpetual succession and a
common seal.

The Board of the FIA

The Board of FIA
4 (1) There shall be a Board of Directors of FIA comprised of the
following persons —

(a) a chairman;

(b) three other non-executive members; and

(c) the Director.

(2) The Director shall be an ex-officio member of the Board.

(3) The Minister shall appoint the chairman and other non-
executive members of the Board.

(4) In appointing the non-executive members of the Board, the
Minister shall ensure that the Board shall have persons who in the
Minister’s opinion have broad experience and expertise in law
enforcement, the law, financial services or financial regulation.

(5) The functions of the Board shall be to manage the affairs
and business of FIA.

(6) The FIA shall be operationally independent.

Tenure of office of members; procedures for meetings of the Board
5 (1) Part 1 of the Schedule (“Tenure and qualifications of non-
executive members of the Board”) has effect.

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(2) Part 2 of the Schedule (“Procedure for meetings of the
Board”) has effect.

Director and Staff of the FIA

Employment of officers, servants and agents
6 The FIA shall, subject to such terms and conditions as it thinks
fit, employ such officers, servants and agents as it considers necessary
for the due performance of its functions, and shall ensure that amongst
their number is a barrister and attorney.

Director of the FIA
7 (1) There shall be a Director of the FIA who shall be appointed
by the FIA from persons with relevant experience.

(2) A person is disqualified for appointment as Director of FIA if
he is a member of either House of the Legislature.

(3) An appointment made pursuant to subsection (1) shall be
for a term of not less than three years but not more than five years, and
may be renewed.

(4) The FIA may terminate the appointment of the Director if it
is satisfied ⎯

(a) that he has become bankrupt, that his estate has been
sequestered or that he has made an arrangement with or
granted a trust deed for his creditors; or

(b) that he is unable or unfit to discharge his functions as
Director of the FIA.

(5) The Director of the FIA shall, subject to the authority of the
Board, administer the affairs and business of the FIA, and shall have
such other functions as the Board may assign to him.

Financial provisions

Funds of the FIA
8 The funds of the FIA shall consist of such sums as may be
appropriated by the Legislature for the purposes of the FIA.

Financial year
9 The financial year of the FIA shall end on the thirty-first day of
March

Expenditure budget
10 (1) the FIA shall, not later than three months (or such shorter
period as the Minister may allow) before the commencement of each

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financial year, submit to the Minister for his approval estimates in such
form and in such detail as the Minister may require in respect of FIA’s
expenditure on operations in that financial year.

(2) the FIA shall submit as soon as practicable to the Minister
for his approval any proposed amendments to any such estimates.

(3) Any such estimates and any such amendments, when
approved by the Minister for any financial year, shall constitute the FIA’s
expenditure budget for that financial year.

(4) The FIA shall not without the Minister's approval spend in
total in any financial year more than the total amount of expenditure
approved by the Minister for that financial year.

(5) The Minister may lay down in writing guidelines to be ob-
served by the FIA in the management of its expenditure budget
("Ministerial guidelines'), and the FIA shall comply with any such
guidelines.

(6) Where a specific sum is provided in the FIA’s expenditure
budget for any financial year in respect of any expenditure item, FIA
shall not spend on that item in that financial year any amount in excess
of that sum unless the excess expenditure either—

(a) is made within the Ministerial guidelines; or

(b) has been approved by the Minister.

Accounts of the FIA
11 (1) The FIA shall cause proper statements of its financial affairs
to be maintained and shall prepare in respect of each financial year a
statement of its accounts in such form as the Auditor-General may
direct.

(2) The statement of accounts must present fairly and
accurately ⎯

(a) the financial transactions of the FIA during the financial
year to which they relate; and

(b) the financial position of the FIA at the end of the
financial year.

(3) the FIA shall within six months after the end of its financial
year cause to be submitted to the Auditor General the statement of its
accounts.

(4) Upon completion of the audit, the Auditor General shall
present the audited statements to the Board.

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Annual reports
12 As soon as practicable after the end of each financial year FIA
must issue a report on the exercise of its functions during that year (an
"annual report").

Publication of annual report and accounts
13 (1) The FIA shall, as soon as practicable after the end of each
financial year, cause to be made and transmitted to the Minister—

(a) a copy of the annual report of the operations of the FIA
during that year; and

(b) a copy of the audited annual statement of accounts of
the FIA certified by the Auditor General.

(2) The Minister shall as soon as possible after their receipt
cause a copy of the report and annual statement of accounts to be laid
before both Houses of the Legislature.

Function and Powers of the FIA

Functions of the FIA
14 (1) The FIA has the functions of receiving, gathering, storing,
analysing and disseminating information relating to suspected proceeds
of crime and potential financing of terrorism.

(2) The FIA may disseminate such information to —

(a) the Bermuda Police Service; and

(b) a foreign financial intelligence authority.

Freezing of funds
15 (1) The FIA may in the course of enquiring into a suspicious
transaction relating to a money laundering offence or terrorist finance
offence serve a notice on any relevant institution in Bermuda requiring it
not to make available any funds to any person specified in the notice.

(2) Such a notice shall be in writing and may require the
relevant institution to freeze funds for a period not exceeding 72 hours.

(3) The period of 72 hours shall be calculated in accordance
with subsection (4).

(4) In calculating the period of 72 hours no account shall be
taken of —

(a) any Saturday; or

(b) any day which is a public holiday within the meaning of
the Public Holidays Act 1947.

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(5) A relevant institution commits an offence if without
reasonable excuse it fails to comply with a notice served on it under
subsection (1).

(6) A relevant institution guilty of an offence under subsection
(1) is liable on summary conviction to a fine of $50,000.

(7) In this section, “funds” means monies deposited with a
relevant institution.

Obtaining information
16 (1) The FIA may, in the course of enquiring into a suspicious
transaction relating to a money laundering offence or a terrorist finance
offence, serve a notice in writing on any person requiring that person to
provide the FIA with such information as it may reasonably require for
the purpose of its enquiry.

(2) A person who is required to provide information pursuant to a
notice served under subsection (1) must provide the information to the
FIA in such manner as the FIA requires.

(3) Any person who without reasonable excuse fails to comply
with a requirement imposed on him under this section shall be guilty of
an offence and liable on summary conviction to a fine of $10,000 or to
imprisonment for six months or to both.

(4) But nothing in this section requires the disclosure of
information which is subject to legal professional privilege.

Restricted Information

Restricted information
17 (1) Except as provided by section 18 ⎯

(a) no person who under or for the purposes of this Act
receives information relating to the business or other
affairs of any person; and

(b) no person who obtains such information directly or
indirectly from a person who has received it as aforesaid,

shall disclose the information without the consent of the person to whom
it relates and (if different) the person from whom it was received as
aforesaid.

(2) This section does not apply to information which at the time
of the disclosure is or has already been made available to the public from
other sources, or to information in the form of a summary or collection of
information so framed as not to enable information relating to any
particular person to be ascertained from it.

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(3) Any person who discloses information in contravention of
this section is guilty of an offence and is liable on summary conviction to
a fine of $50,000 and to imprisonment for two years or to both.

Disclosure of Information by and to the FIA

Permitted disclosure
18 Information obtained by the FIA in connection with the exercise
of its functions may be disclosed by the FIA if the disclosure is for the
purpose of enabling or assisting (“permitted purpose”) —

(a) the FIA to discharge its functions under any statutory
provision;

(b) the Minister of Finance to discharge his functions under
section 14(2); or

(c) the Bermuda Monetary Authority to discharge its
functions under any statutory provision.

National and international cooperation
19 The FIA may, in connection with the exercise of its functions
under this Act, enter into arrangements for cooperation with bodies or
persons (in Bermuda or elsewhere) which it considers appropriate.

Disclosure of information to the FIA
20 (1) Any person may disclose information to FIA if the disclosure
is made for the discharge of its functions under section 14.

(2) A disclosure under this section does not breach—
(a) any obligation of confidence owed by the person making

the disclosure; or
(b) any other restriction on the disclosure of information

(however imposed).
(3) But nothing in this section authorises disclosure of
information which is subject to legal professional privilege.

Restrictions on further disclosure
21 (1) Information disclosed by the FIA under section 18 to any
person or body must not be further disclosed except —

(a) for a purpose connected with any function of that person
or body for the purposes of which the information was
disclosed by the FIA; and

(b) with the consent of the FIA.

(2) Consent under subsection (1) may be given—

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(a) in relation to a particular disclosure; or

(b) in relation to disclosures made in circumstances
specified or described in the consent.

Consequential Amendments

Consequential amendments
22 (1) The Anti-Terrorism (Financial and Other Measures) Act
2004 is amended —

(a) in section 9 by deleting “a police officer” where it occurs
in subsection (3) and substituting “the FIA”.

(b) in section 10 by deleting “a police officer” where it occurs
in the subsections (1), (2) and (4) and substituting in
each case “the FIA”;

(c) in section 12 by deleting “police” and “the police” where
they occur in subsections (1), (2), (4) and (6) and
substituting in each case “the FIA”; and

(d) in Part 1 of the Schedule ⎯

(i) by deleting “a police office or nominated officer”
in paragraph 1(4) and substituting “the FIA or a
nominated officer”, and

(ii) by deleting “a police office or nominated officer”
in paragraph 2(4) and substituting “the FIA or a
nominated officer”.

(2) The Bermuda Monetary Authority Act 1969 is amended in
section 31(1AA) by inserting the following paragraph after paragraph
(ab)⎯

“(ac) to the FIA, established under section 3 of the
Financial Intelligence Agency Act 2007, for the
purpose of its functions;”.

SCHEDULE (section 5)
BOARD OF DIRECTORS

PART 1
TENURE AND QUALIFICATIONS OF NON-EXECUTIVE

MEMBERS OF THE BOARD

Terms of Office

1. Appointment as non-executive member of the Board shall be for
a period of not less than three years and not more than five years, except

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that initially some appointments may be for shorter and different periods
so as to secure that appointments expire at different times.

2. A person appointed as member in place of a person who ceased
to hold office before the end of the term for which he was appointed shall
be appointed for the remainder of that person’s term of office.

3. A person holding office as non-executive member may at any
time resign by giving notice in writing to the Minister.

4. The Minister may by notice in writing remove the chairman or
non-executive member from office if satisfied that —

(a) he has without reasonable excuse been absent from
three consecutive meetings of the board of the FIA;

(b) he has been convicted (whether before or after his
appointment) of a criminal offence;

(c) he is an undischarged bankrupt or his estate has been
sequestrated and he has not been discharged;

(d) he has made a composition or arrangement with, or
granted a trust deed for, his creditors; or

(e) he is otherwise unable or unfit to carry out his functions
as chairman or ordinary member.

5. The chairman or a non-executive member is eligible for re-
appointment, except where he is removed from office under
subparagraph (4).

6. The FIA shall pay to the chairman and each of the non-executive
members such remuneration and allowances as may be approved by the
Minister.
7. The Minister shall cause to be published in the Gazette the name
of every person appointed as member of the Board.

Qualification for appointment

8. A person is disqualified for appointment as member of the Board
if he is a member of either House of the Legislature or a person serving
in a government department in employment in respect of which
remuneration is payable out of money provided by Parliament.

9. The fact that a person has held office as a member of the Board
does not disqualify him for re-appointment to that office.

Removal from office

10. A person appointed as member of the Board shall vacate office if
he becomes a person to whom paragraph 8 applies.

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11. The Minister acting after consultation with the FIA may remove a
person from office as non-executive member of the Board if he is satisfied
that that person —

(a) has been absent from meetings of the Board for more
than three months without the consent of the Board;

(b) has become bankrupt, that his estate has been
sequestered or that he has made an arrangement with or
granted a trust deed for his creditors; or

(c) is unable or unfit to discharge his functions as a
member.

PART 2
PROCEDURE FOR MEETINGS OF THE BOARD

Powers

12. The Board may act notwithstanding the existence of one or more
vacancies in its members or a defect in the appointment of a member.

Meetings

13. (1) The Board shall meet as often as necessary or expedient for
the due performance of its functions.

(2) The chairman may summon a meeting at any time on giving
such notice as in his judgment the circumstances may require.

14. (1) At a meeting of the Board, the proceedings shall be
regulated as follows.

(2) The quorum shall be three members.

(3) The chairman shall chair meetings of the Board.

(4) If the chairman is absent from a meeting of the Board, the
members present at the meeting shall nominate one of their number to
chair the meeting.

(5) If a member of the Board has any direct or indirect interest
in any dealing or business with FIA⎯

(a) he shall disclose his interest to the Board at the time of
the dealing or business being negotiated or transacted;
and

(b) he shall have no vote in relation to the dealing or
business, unless the Board has resolved that the
interest does not give rise to a conflict of interest.

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(6) Subject to subparagraph (5), a member of the Board shall
have no vote in relation to any question arising which touches or
concerns him.

(7) In the event of an equality of votes, the chairman shall have
a casting vote.

(8) Subject to subparagraphs (2) to (7), the Board shall
determine its own procedure.