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