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Casino Control (Amendment) Act 2017

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REPUBLIC OF VANUATU


CASINO CONTROL (AMENDMENT)
ACT NO. 13 OF 2017

Arrangement of Sections



REPUBLIC OF VANUATU

Assent: 16/06/2017
Commencement: 16/06/2017

CASINO CONTROL (AMENDMENT)
ACT NO. 13 OF 2017

An Act to amend the Casino Control Act [CAP 223], and for related purposes.

Be it enacted by the President and Parliament as follows-

  1. Amendment

The Casino Control Act [CAP 223] is amended as set out in the Schedule, and any other item in the Schedule has effect according to its terms.

  1. Commencement

This Act commences on the day on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF CASINO CONTRIOL ACT [CAP 223]

  1. Whole of the Act

Delete “Minister” (wherever occurring except section 76), substitute “Director”

  1. Section 1 (Interpretation)

Insert in their correct alphabetical positions

““associate” of an applicant for a licence or a licensee, or a promoter, means a beneficial owner, owner, controller, director or manager of the applicant, licensee or promoter;

“beneficial owner” means a natural person who is the ultimate owner or ultimate controller of an applicant for a licence or a licensee, or a promoter;

“confidential information” has the meaning given by section 1A;

“controller” of an applicant for a licence or a licensee, or a promoter, means a person who exercises influence, authority or power over decisions about the financial or operating policies of the applicant, licensee or promoter, including as a result of, or by means of, a trust, agreement, arrangement, understanding or practice, and “control” has a corresponding meaning;

“Director” means the Director of the department responsible for customs and inland revenue;

“director” of an applicant for a licence or a licensee, or a promoter, means:

(a) any person occupying the position of a director of the applicant, licensee or promoter, regardless of the name given to the position; or

(b) any person held out by the applicant, licensee or promoter to be a director;

“domestic regulatory authority” means a body or agency established by or under a law of Vanuatu that:

(a) grants or issues under that law or any other law licences, permits, certificates, registrations or other equivalent permissions ; and

(b) performs any other regulatory function related to a matter referred to in paragraph (a), including developing, monitoring or enforcing compliance with standards or obligations prescribed by or under that law or any other law;

“Financial Intelligence Unit” means the Financial Intelligence Unit established under section 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014;

“foreign government agency” means:

(a) a body or agency established by or under a law of a foreign country; or

(b) an arm, ministry, department, or instrumentality of the government of a foreign country; or

(c) a body or agency of a foreign country set up by administrative act for governmental purposes;

“foreign serious offence” means:

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

(b) an offence prescribed by the regulations;

“foreign tax evasion offence” means conduct that:

(a) amounts to an offence against a law of foreign country; and

(b) relates to a breach of a duty relating to a tax imposed under the law of the foreign country (whether or not that tax is imposed under a law of Vanuatu); and

(c) would be regarded by the courts of Vanuatu as an offence of fraudulent evasion of tax for which the maximum penalty is imprisonment for at least 12 months, had the conduct occurred in Vanuatu;

“law enforcement agency” means:

(a) the Vanuatu Police Force; or

(b) the Office of the Public Prosecutor; or

(c) the department responsible for immigration; or

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

“manager” of an applicant for a licence or a licensee, or a promoter, means:

(a) an individual who occupies the position of the chief executive officer (however described) of the applicant, licensee or promoter; or

(b) an individual who under the immediate authority of the chief executive officer or a director of the applicant, licensee or promoter, exercises the management functions of the applicant, licensee or promoter;

“owner” of an applicant for a licence or a licensee, or a promoter, means a person who has a legal entitlement of 25% or more of the applicant, licensee or promoter, by way of ownership of shares or otherwise, and “own” and “ownership” have a corresponding meaning;

“promoter” means the promoter of a junket;

“regulatory law” means a law that provides for:

(a) the grant or issue of licences, permits, certificates, registrations or other equivalent permissions; and

(b) other regulatory functions related to a matter referred to in paragraph (a), including monitoring or enforcing compliance with standards or obligations prescribed by that law;

“Sanctions Secretariat” means the Sanctions Secretariat established under section 17 of the United Nations Financial Sanctions Act No. 6 of 2017;”

  1. At the end of section 1

Add

“(2) For the purpose of the definition of beneficial owner, ultimate owner and ultimate controller includes circumstances where ownership or control is exercised:

(a) through a chain of ownership; or

(b) by a means of indirect control that may not have legal or equitable force, or be based on legal or equitable rights.”

  1. Section 1 (definition of casino operation agreement)

Repeal the definition

  1. Section 1 (definition of collector)

Repeal the definition

  1. Section 1 (definition of officer)

Delete “and includes the Collector”

  1. After section 1

Insert

“1A Meaning of confidential information

Confidential information is information supplied to or obtained by the Director under this Act, but does not include information that:

(a) can be disclosed under any provision of this Act; or

(b) is already in the public domain; or

(c) consists of aggregate data from which no information about a specific person or business can be identified.”

  1. Section 2

Repeal the section, substitute

2 Application for casino licence

(1) An application for a casino licence must be made to the Director in the prescribed form and be accompanied by:

(a) details of each associate of the applicant; and

(b) details as required by the Director on whether a beneficial owner of the applicant is a beneficial owner, owner or controller of an entity licensed or registered under a regulatory law of Vanuatu or a foreign jurisdiction; and

(c) details of the source of funds used to pay the capital of the applicant; and

(d) the prescribed fee; and

(e) any other information prescribed by the regulations.

(2) If the applicant is a body corporate, the application must also include the following details:

(a) the name of the body corporate;

(b) proof of incorporation of the body corporate;

(c) the registered business address of the body corporate.

(3) If the applicant is not a body corporate, the application must also include such other information (if any) prescribed by the regulations.

2A Granting a casino licence

(1) The Director must not grant a casino licence to an applicant to operate a casino in Vanuatu unless the application for the casino licence complies with the requirements in section 2 and the Director is satisfied that:

(a) each associate of the applicant meets fit and proper criteria prescribed by the regulations; and

(b) the source of funds used to pay the capital of the applicant is acceptable; and

(c) the applicant has a satisfactory ownership, trust or corporate structure; and

(d) the applicant has or is able to obtain financial resources that are both suitable and adequate for ensuring the financial viability of the proposed casino; and

(e) the applicant has sufficient experience in the management and operation of casinos; and

(f) the applicant has sufficient business ability to establish and maintain a viable and profitable casino business; and

(g) any business partner of the applicant is of good repute having regard to character, honesty, integrity and the partner’s financial sources.

(2) In assessing fit and proper criteria under paragraph (1)(a), the Director must take into consideration:

(a) whether an associate has been convicted of an offence or is subject to any criminal proceedings; and

(b) whether an associate is listed on a United Nations financial sanctions list, a financial sanctions list under the United Nations Financial Sanctions Act No. 6 of 2017 or a financial sanctions list under the law of any jurisdiction; and

(c) any fit and proper criteria prescribed by the regulations.

(2A) In addition to subsections (1) and (2), the Director must obtain the prior approval of the Council of Ministers before granting a casino license to an applicant.

(3) The Director must not grant more than 10 casino licences to operate in Vanuatu.

2B Conditions of a casino licence

(1) The Director may grant a casino licence on such conditions as the Director thinks fit.

(2) The conditions of a casino licence must not be inconsistent with any provision of this Act or the regulations.

2C Register of casino licences

(1) The Director must establish and maintain a register of casino licences in such form as the Director determines.

(2) The Director must keep up to date and accurate information on casino licences and licensees in the register.

(3) To avoid doubt, this section applies to the licensee of a casino licence in force immediately before the commencement of this section.”

  1. Sections 4, 5 and 6

Repeal the sections

  1. Subsection 10(1)

Repeal the subsection, substitute

“(1) The Director may suspend or cancel a casino licence if:

(a) the casino licensee has contravened the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014 and that contravention has resulted in the use of an enforcement measure under Part 10AA of that Act; or

(b) the casino licensee no longer meets the fit and proper criteria prescribed by the regulations; or

(c) an associate of the casino licensee no longer meets, or a new associate of the casino licensee does not meet, the fit and proper criteria prescribed by the regulations; or

(d) the casino licensee fails to comply with any term or conditions of the casino operation agreement; or

(e) the casino licensee contravenes a requirement in relation to a matter of foreign investment; or

(f) the casino licensee knowingly or recklessly supplies to the Director, an officer or any other person who performs a function in relation to this Act on behalf of the Government, information that is false or misleading in a material particular; or

(g) the casino licensee fails to meet the licensee’s financial commitments when they become due and payable; or

(h) proceedings to wind up the casino licensee are instituted.”

  1. After section 11

Insert

11A Licensee to give notice of certain changes to Director

(1) A licensee must give the Director written notice of a change:

(a) of an associate of the licensee; or

(b) in the circumstances of an associate of the licensee that may affect whether he or she meets fit and proper criteria; or

(c) the source of funds used to pay the capital of the licensee;

within 14 days after the change occurs.

(2) If a licensee fails to comply with subsection (1), the licensee commits an offence punishable upon conviction by:

(a) if the licensee is a natural person - a fine not exceeding VT 25 million or imprisonment not exceeding 15 years, or both; or

(b) if the licensee is a body corporate - a fine not exceeding VT 125 million.

(3) If a licensee fails to comply with subsection (1), the Director may by notice in writing to the licensee cancel the licensee’s licence.

(4) If a licensee does provide the information as required under subsection (1), but the Director is not satisfied:

(a) that the associate concerned is a fit and proper person to fulfil the responsibilities of his or her position having regard to the matters referred to in subsection 2A(2); or

(b) as to the source of funds used to pay the capital of the licensee,

the Director may by notice in writing to the licensee cancel the licensee’s licence.

(5) Before cancelling a licence under subsection (3) or (4), the Director must give written notice to the licensee that the Director proposes to cancel the licence and the reasons for the cancellation.

(6) The licensee may, within 21 days after receiving a notice under subsection (5), give the Director written reasons why the licence should not be cancelled.

(7) The Director may cancel a licensee’s licence if:

(a) the licensee does not give the Director reasons under subsection (6); or

(b) having taken account of the licensee’s reasons, the Director is of the opinion that the licensee has failed to show good cause why the licence should not be cancelled.”

  1. Subsection 15(2)

Delete “and the Collector”

  1. After Part 2

Insert

“Part 2A Requirements for junkets

16A Director to approve junkets

(1) Neither a licensee nor a promoter is to enter into a junket, unless the Director has given his or her prior written approval to the junket.

(2) An application for approval of a junket may be made by a licensee or promoter, or both, and must be made to the Director in writing and be accompanied by:

(a) details of each associate of the promoter; and

(b) details of the source of funds used to pay the capital of the promoter; and

(c) any other information prescribed by the regulations.

(3) The Director must not approve a junket unless the Director is satisfied that:

(a) each associate of the promoter meets fit and proper criteria; and

(b) the source of funds used to pay the capital of the promoter is acceptable; and

(c) the junket meets any other requirements prescribed by the regulations.

(4) In assessing fit and proper criteria under paragraph (3)(a), the Director must take into consideration:

(a) whether an associate has been convicted of an offence or is subject to any criminal proceedings; and

(b) whether an associate is listed on a United Nations financial sanctions list, a financial sanctions list under the United Nations Financial Sanctions Act No. 6 of 2017 or or a financial sanctions list under the law of any jurisdiction; and

(c) any fit and proper criteria prescribed by the regulations.

(5) If a promoter and a licensee contravene subsection (1), the promoter and licensee each commit an offence punishable upon conviction by:

(a) if the offender is a natural person - a fine not exceeding VT 25 million or imprisonment not exceeding 15 years, or both; or

(b) if the offender is a body corporate - a fine not exceeding VT 125 million.

(6) To avoid doubt, this section applies to a junket if a licensee and promoter have entered into the junket before the commencement of this section and the junket will occur after that commencement.”

  1. Section 17

Repeal the section, substitute

“17 Administration

The Director is responsible for the collection of fees and taxes under this Act, and is in charge of the general administration of this Act.”

  1. Section 18 (Heading)

Delete “Collector”, substitute “Director”

  1. Section 18

Delete “Collector”, substitute “Director”

  1. Subsections 20(1) and (2), and 23(1)

Delete “Collector” (wherever occurring), substitute “Director”

  1. Subsection 23(5)

Repeal the subsection, substitute

“(5) Any person who contravenes or fails to comply with the provisions of this section shall be guilty of an offence and shall be liable on conviction:

(a) if the offender is a natural person, to a fine not exceeding VT 15 million or imprisonment for a term not exceeding 5 years, or both; or

(b) if the offender is a body corporate, to a fine not exceeding VT 75 million.

  1. After section 23

Insert

“23A Director may request information and documents

For the purpose of discharging a duty, performing a function or exercising a power under this Act, the Director may request information or documents, or both, from any or all of the following:

(a) the Financial Intelligence Unit;

(b) a supervisor within the meaning of the Anti-Money Laundering and Counter- Terrorism Financing Act No. 13 of 2014;

(c) the Sanctions Secretariat;

(d) a law enforcement agency;

(e) a domestic regulatory authority;

(f) a foreign government agency that carries out functions corresponding or similar to the functions carried out by a body or agency referred to in paragraph (a), (b), (c), (d) or (e).

23B On-site inspections

(1) For the purpose of monitoring compliance with this Act, the Director may conduct on-site inspections at the casino operated by a licensee, and any other business premises occupied by the licensee and used for the purposes of the casino operations, at any time during normal casino opening hours.

(2) The Director may, for the purposes of subsection (1):

(a) enter the casino and other business premises of the licensee during normal casino opening hours; and

(b) inspect and take copies of any books, accounts and documents of the licensee that relate to the casino operations of the licensee.

(3) The licensee must cooperate fully with the Director by:

(a) giving the Director all the information, and making available the documents, he or she requires; and

(b) if necessary, giving the Director appropriate workspace and reasonable access to office services, during the inspection.

(4) If a person:

(a) obstructs the Director in the exercise of his or her powers under this section; or

(b) provides false or misleading information or documents to the Director,

the person commits an offence punishable upon conviction by:

(ai) if the person is a natural person - a fine not exceeding VT 15 million or imprisonment for a term not exceeding 5 years, or both; or

(bi) if the person is a body corporate – a fine not exceeding VT 75 million.

(5) In this section, a reference to the Director includes a person authorised by the Director in writing as an authorised officer for the purposes of this section.

(6) An authorised officer must produce written evidence of his or her appointment if required to do so while carrying out on-site inspections.”

  1. Section 24

Repeal the section, substitute

“24 Self-incrimination

(1) A person is not excused from furnishing information, producing a document or answering a question pursuant to a requirement made of the person under subsection 23(2) on the ground that the information or answer, or the production of the document, may incriminate the person.

(2) However:

(a) any information furnished, document produced or answer given pursuant to a requirement under that subsection; and

(b) any information or thing (including any document) obtained as a direct or indirect consequence of the furnishing of the information, production of the document or answering of the question,

is not admissible in evidence against the person in any criminal or civil proceedings, other than proceedings for an offence against this Act, section 11 of the Proceeds of Crime Act [CAP 284], section 6 of the Counter Terrorism and Transnational Organised Crime Act [CAP 313] or an offence against the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014.”

  1. Subsection 25(6)

(a) Delete “VT 200,000”, substitute “VT 15 million”

(b) Delete “12 months”, substitute “5 years”

  1. Section 25

Repeal the section, substitute

“25 Disclosure of confidential information

(1) The Director may disclose confidential information if the disclosure:

(a) is required or authorised by the Court; or 


(b) is made for the purpose of discharging a duty, performing a function or exercising a power under this Act; or


(c) is made to a supervisor within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014 for the purposes of discharging a duty, performing a function or exercising a power under that Act; or

(d) is made to a law enforcement agency for the purpose of investigating or prosecuting an offence against a law of Vanuatu for which the maximum penalty is a fine of at least VT 1 million or imprisonment for at least 12 months; or

(e) is made to a law enforcement agency for the purpose of investigating or taking action under the Proceeds of Crime Act [CAP 284]; or

(f) is made to a to domestic regulatory authority for the purpose of carrying out its regulatory functions; or

(g) is made to the Sanctions Secretariat for the purpose of carrying out its functions under the United Nations Financial Sanctions Act No. 6 of 2017; or

(h) is made to a foreign government agency in accordance with section 25A.

(2) A person who contravenes subsection (1) commits an offence punishable upon conviction by:

(a) for an individual - a fine not exceeding VT 15 million or imprisonment for a term of 5 years, or both; or

(b) for a body corporate - a fine not exceeding VT 75 million.

25A Disclosure to foreign government agency

The Director may disclose confidential information to a foreign government agency if:

(a) the Director is satisfied that the disclosure is for the purpose of:

(i) discharging a duty, performing a function or exercising a power under the foreign government agency’s own regulatory legislation (if any), including investigating a breach of that legislation; or

(ii) discharging a duty, performing a function or exercising a power under the foreign jurisdiction’s anti-money laundering and counter-terrorism financing regulation and supervision laws; or

(iii) discharging a duty, performing a function or exercising a power under the foreign jurisdiction’s financial sanctions laws; or

(iv) investigating or prosecuting a foreign serious offence or a foreign tax evasion offence; or

(v) investigating or taking action under the foreign jurisdiction’s proceeds of crime laws; and

(b) the Director is satisfied that:

(i) the information will be used for a proper regulatory, supervisory or law enforcement purpose; and

(ii) the agency is subject to adequate restrictions on further disclosure.”

  1. Section 62

(a) Delete “VT 100,000”, substitute “VT 15 million”

(b) Delete “6 months”, substitute “5 years”

  1. Section 63

(a) Delete “VT 100,000”, substitute “VT 15 million”

(b) Delete “6 months”, substitute “5 years”

  1. Subparagraph 64(i)

Delete “VT 1,000,000”, substitute “VT 75 million”

  1. Subparagraph 64(ii)

(a) Delete “VT 200,000”, substitute “VT 15 million”

(b) Delete “12 months”, substitute “5 years”

  1. Section 65

(a) Delete “VT 200,000”, substitute “VT 15 million”

(b) Delete “12 months”, substitute “5 years”

  1. Paragraph 66(a)

Delete “VT 1,000,000”, substitute “VT 75 million”

  1. Paragraph 66(b)

(a) Delete “VT 200,000”, substitute “VT 15 million”

(b) Delete “12 months”, substitute “5 years”

  1. Paragraph 67(6)(a)

(a) Delete “VT 200,000”, substitute “VT 15 million”

(b) Delete “12 months”, substitute “5 years”

  1. Subparagraph 67(6)(b)(i)

Delete “VT 2,500,000”, substitute “VT 15 million”

  1. Subparagraph 67(6)(b)(ii)

(a) Delete “VT 500,000”, substitute “VT 15 million”

(b) Delete “2 years”, substitute “5 years”

  1. Paragraph 67(6)(c)

(a) Delete “VT 100,000”, substitute “VT 15 million”

(b) Delete “6 months”, substitute “5 years”

  1. Subsection 68(2)

(a) Delete “VT 500,000”, substitute “VT 15 million”

(b) Delete “2 years”, substitute “5 years”

  1. Paragraph 68(3)(d)

Delete “VT 2,500,000”, substitute “VT 75 million”

  1. Paragraph 68(3)(e)

(a) Delete “VT 500,000”, substitute “VT 15 million”

(b) Delete “2 years”, substitute “5 years”

  1. Subsection 70(1)

Delete “or the casino operation agreement”

  1. Subsection 75(1)

Delete “casino operation agreement or the”

  1. After section 75

Insert

“75A Indemnity from liability etc.

No person is subject to any civil or criminal liability, action, claim or demand for anything done or omitted to be done in good faith under or for the purposes of this Act.”

  1. Subparagraph 76(2)(s)(iii)

Repeal the subparagraph

  1. After paragraph 76(2)(s)

Insert

“(sa) prescribe fit and proper criteria for applicants for licences, licensees, promoters and associates;”

  1. Transitional provision for casino licences

(1) This provision applies to a casino licence that is in force immediately before the commencement of this Act.

(2) On and after the commencement of this Act, the casino licence continues in force and has effect as if it were a casino licence granted under section 2A of the Casino Control Act [CAP 223] as amended by this Act.

  1. Transitional provision for casino agreements

(1) This provision applies to an agreement referred to in section 5 of the Casino Control Act [CAP 223] as in force immediately before the commencement of this Act.

(2) On and after the commencement of this Act, the agreement continues in force and has effect despite the repeal of section 5 of the Casino Control Act [CAP 223] by this Act.

44 Transitional provisions for certain licensee information

(1) This provision applies to a licensee if:

(a) the licensee’s licence was in force immediately before the commencement of this Act; and

(b) the licensee has not provided the Director with the information required under paragraphs 2(1)(a) and (b) of the Casino Control Act [CAP 233] amended by this Act (“additional information”).

(2) The licensee must provide the Director with the additional information within 6 months after the commencement of this Act.

(3) If a licensee does not provide the additional information as required under subsection (2), the Director may by notice in writing to the licensee cancel the licensee’s licence.

(4) If a licensee does provide the additional information as required under subsection (2), but the Director is not satisfied with the additional information, including in relation to the associates of the licensee by having regard to the matters set out in subsection 2A(2) of the Casino Control Act [CAP 233] as amended by this Act, the Director may by notice in writing to the licensee cancel the licensee’s licence.

(5) The procedure in section 11 of the Casino Control Act [CAP 233] applies to cancelling a licence under this section with appropriate modification as required.

  1. Transitional provision for casinos not yet operating

(1) If the licensee of a casino licence has not started the operation of the casino before the commencement of this Act, the licensee must do so within 3 years after that commencement.

(2) A failure to comply with subsection (1) is deemed to be a ground under section 10 of the Casino Control Act [CAP 223] as amended by this Act to cancel the casino licence in accordance with the procedure under section 11 of that Act.

  1. Meaning of terms and expressions used in items 42 to 45

A term or expression used in item 42, 43, 44 or 45 has the same meaning as in the Casino Control Act [CAP 223] as amended by this Act.



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