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No. 3 of 2009 Rules/Other as made
These Rules amend the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2007 (No. 1) and the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2007 (No. 5) by making changes to Chapters 1 and 19, inserting a new Chapter 2 relating to ‘designated business groups’ (DBGs) and adding Chapter 35 of the AML/CTF Rules which provides an exemption from applicable customer identification procedures relating to correspondent banking relationships.
Administered by: Attorney-General's
Registered 09 Jul 2009
Tabling HistoryDate
Tabled HR11-Aug-2009
Tabled Senate11-Aug-2009
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2009 (No. 3)

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

I, Neil J Jensen, 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 25 June  2009

 

 

 

 

 

 

 

[signed]

 

Neil J Jensen PSM

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 2009 (No. 3).

2              Commencement

 

               This Instrument commences on the day after it is registered.

3              Amendment

Schedule 1 amends the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2007 (No. 5).    

Schedules 2, 3 and 4 amend 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 Amendment Instrument 2007 (No. 5).

 

Schedule 3, item 1, subparagraph 19.3(1)(aa)

 

Omit

operates;

 

Insert

operates, if known;

 

Schedule 2                   Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

 

 

Chapter 1, subparagraph 1.2.1

 

 

Omit

 

In the Rules in chapters 3 to 10 inclusive:

 

Insert

 

In these Rules:

 

accredited translator means:

 

(1)           a person currently accredited by the National Accreditation                               Authority for Translators and Interpreters Ltd. (NAATI) at the                         level of Professional Translator, or above, to translate from a                language other than English into English; or

 

(2)           a person who currently holds an accreditation that is consistent with the standard specified in (1).

 

Chapter 19, subparagraph 19.3(1)(aa)

 

Omit

operates;

 

Insert

operates, if known;

 

Schedule 3                   Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

 

 

Chapter 2

 

Repeal the Chapter

 

Insert

 

Chapter 2

 

Part 2.1          Definition of ‘designated business group

 

2.1.1    These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made pursuant to section 229 of the Anti-Money Laundering and         Counter-Terrorism Financing Act 2006 (AML/CTF Act) for the purposes of the definition of ‘designated business group’ in section 5 of the AML/CTF   Act.

 

2.1.2    For the purposes of the definition of ‘designated business group’ in section 5      of the AML/CTF Act:

 

            (1)        an election will be made in accordance with the AML/CTF Rules if                    it is made on the approved election form and provided to AUSTRAC                     by the Nominated Contact Officer;

 

            (2)        a ‘designated business group’ is established when the approved form is              provided to the AUSTRAC CEO by the Nominated Contact Officer or                   on such later date as is specified on that form; and

 

            (3)        the members of a designated business group must, by their Nominated               Contact Officer, notify the AUSTRAC CEO, in writing, in the                                approved form, of any of the following:

 

                        (a)        a withdrawal of a member from the designated business group;                          or

 

                        (b)        an election of a new member; or

 

                        (c)        the termination of the designated business group; or

 

                        (d)        any other change in the details previously notified to the                                                 AUSTRAC CEO in respect of the Nominated Contact Officer                                 or the designated business group;

 

                        no later than 14 business days from the date on which the withdrawal,                election of the new member, termination or change takes effect.

 

            (4)        each member of the designated business group must be:

 

            (a)        related to each other member of the group within the meaning of                                    section 50 of the Corporations Act 2001; and either

 

                        (i)         a reporting entity; or

 

                        (ii)        a company in a foreign country which if it were resident in                                              Australia would be a reporting entity; or

 

            (b)        providing a designated service pursuant to a joint venture agreement,                 to which each member of the group is a party; or

      (c)        able to satisfy the following conditions:

be

(i)         an accounting practice; or

(ii)        a person, other than an individual, which the accounting             practice in (i) controls; or

      (iii)       an accounting practice which is providing a designated service   pursuant to a joint venture agreement, to which each member of     the group is a party; or

      (iv)       a person that provides or assists in the provision of a designated            service to the customers of the accounting practice;

and either:

(v)        a reporting entity; or

      (vi)       an entity in a foreign country which, if it were resident in             Australia would be a reporting entity; or

(d)     able to satisfy the following conditions:

         be

(i)         a law practice; or

(ii)        a person, other than an individual, which the law practice in (i)   controls; or

(iii)       a law practice which is providing a designated service pursuant to a joint venture agreement, to which each member of the         group is a party; or

(iv)       a person that provides or assists in the provision of a designated            service to the customers of the law practice;

and either:

 

(v)        a reporting entity; or

 

(vi)       an entity in a foreign country which, if it were resident in             Australia would be a reporting entity.

 

2.1.3    In this Chapter:

 

            (1)        ‘approved election form’ means Form 1 attached to these Rules;

 

            (2)        ‘approved form’ for the purposes of sub-rule 2.1.2(2) means Form 2

                        attached to these Rules;

 

            (3)        ‘approved form’ for the purposes of sub-rule 2.1.2(3) means Form 3

                        attached to these Rules;

 

            (4)        ‘company’ has the same meaning as in the Corporations Act 2001;

 

            (5)        ‘Nominated Contact Officer’ means the holder from time to time of                   one of the following positions:

 

                        (a)        an ‘officer’ as defined in the Corporations Act 2001, of a                                             member of a designated business group; or

 

                        (b)        the AML/CTF Compliance Officer of a member of a                                         designated business group,

 

                        where that officer or compliance officer has been appointed by the                                 designated business group to hold the position of the Nominated                              Contact Officer;

            (6)        ‘accounting practice’ means a business carried on by either of the                                  following:

(a)        an accountant (however described) that supplies            professional accounting services; or

(b)        a partnership or company that uses accountants (however          described) to supply professional accounting services;

                              (7)  ‘law practice’ means a business carried on by either of the following:

(a)        a legal practitioner (however described) that supplies     professional legal services; or

(b)        a partnership or company that uses legal practitioners (however             described) to supply professional legal services.

 

 

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.


 

Form 1

 

FORM FOR SUB-PARAGRAPH 2.1.2(1) OF THE RULES: ELECTION TO BE A MEMBER OF A DESIGNATED BUSINESS GROUP

 

For the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Rules made pursuant to section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and of the definition of ‘designated business group’ in section 5 of the AML/CTF Act:

 

I, [name and role/title of Y], hereby elect on behalf of Y, to be a member of [name of Designated Business Group]. I hereby confirm that:

 

(a)        Y Pty Ltd, is a reporting entity related to each member of [name of Designated Business Group] within the meaning of section 50 of the Corporations Act 2001; or

 

(b)        Y Pty Ltd, is providing a designated service pursuant to a joint venture   agreement to which each member of [name of Designated Business Group] is          a party; or

 

(c)        Y Pty Ltd, is a foreign company which, if it were resident in Australia would       be a reporting entity, and is, within the meaning of section 50 of the            Corporations Act 2001, related to [name of related company] which is a             member of [name of Designated Business Group] and which is a reporting         entity; or

 

(d)        Y is a reporting entity or is an entity in a foreign country, which if it were resident in Australia would be a reporting entity, and is:

 

(i)         an accounting practice as defined in Rule 2.1.3(6); or

 

(ii)        a person, other than an individual, which the accounting practice in (i) controls; or

 

(iii)       an accounting practice which is providing a designated service pursuant to a joint venture agreement, to which each member of the [name of Designated Business Group] group is a party; or

 

(iv)       a person that provides or assists in the provision of a designated service to the customers of the accounting practice; or                         

                       

(e)        Y is a reporting entity or is an entity in a foreign country, which if it were resident in Australia would be a reporting entity, and is:

 

(i)         a law practice as defined in Rule 2.1.3(7); or

 

(ii)        a person, other than an individual, which the law practice in (i) controls; or

(iii)       a law practice which is providing a designated service pursuant to a joint venture agreement, to which each member of the [name of Designated Business Group] group is a party; or

(iv)       a person that provides or assists in the provision of a designated service to the customers of the law practice.

 

 

 

 

DATE:


 

Form 2

 

FORM FOR SUB-PARAGRAPH 2.1.2(2) OF THE RULES: FORMATION OF A DESIGNATED BUSINESS GROUP

 

For the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Rules made pursuant to section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and of the definition of ‘designated business group’ in section 5 of the AML/CTF Act:

 

I, [name and role/title of X], notify AUSTRAC that [role/title of X] is the Nominated Contact Officer of [name of Designated Business Group]. I currently hold that position. My contact details are:

 

Address:

 

Phone number:

 

Fax number:

 

Email address:

 

I [name] as the Nominated Contact Officer of [name of Designated Business Group] hereby notify AUSTRAC of the establishment of [name of Designated Business Group].

 

The following have elected to be members of [name of Designated Business Group]:

 

[name of member]

 

[name of member]

 

DATE:

 


 

Form 3

 

FORM FOR SUB-PARAGRAPH 2.1.2(3) OF THE RULES: VARIATIONS

 

For the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Rules made pursuant to section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and of the definition of ‘designated business group’ in section 5 of the AML/CTF Act:

 

I, [Nominated Contact Officer of X], being the Nominated Contact Officer of [name of Designated Business Group] hereby advise the AUSTRAC CEO of the following variations to [name of Designated Business Group]:

 

(a)        [withdrawal detail];

 

(b)        [election detail];

 

(c)        [termination];

 

(d)        [any other change]

 

Election forms are attached.

 

DATE:

 


 

 

Schedule 4                   Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

1.            After Chapter 34

insert

 

 

CHAPTER 35           Exemption from applicable customer identification procedures for correspondent banking relationships

 

35.1     These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 for subsection 39(4) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).

35.2     Division 4 of Part 2 of the AML/CTF Act does not apply to a reporting entity which is a financial institution providing a designated service that:

                        (1)        is either:

            (a)        of a kind described in item 2 of table 1 in subsection      6(2) of the AML/CTF Act; or

            (b)        of a kind described in item 3 of table 1 in subsection      6(2) of the AML/CTF Act; and

            (2)        relates to a correspondent banking relationship; and

            (3)        occurs in one of the circumstances set out in section 100 of the AML/CTF Act; and

            (4)        relates to signatories to the account who are employees of the    other financial institution.

 

 

 

 

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.