Update on Anti-Money Laundering and Counter-Terrorism Financing Reforms for Legal Practitioners

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1 Update on Anti-Money Laundering and Counter-Terrorism Financing Reforms for Legal Practitioners 22 December 2006 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 Introduction In the first week of December 2006, Parliament passed the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ( AML/CTF Act ). The regulatory regime introduced by the Act will be phased in over two years from the day after the date of Royal Assent, which was received on 12 December Although the Act is primarily concerned with regulating the financial sector, it may also impact upon legal practitioners to the extent that they provide certain listed financial services. Much of the detail of the new regime, including the exact nature of the obligations it creates, will be contained in the AML/CTF Rules. These Rules are yet to be finalized by the Australian Transaction Reports and Analysis Centre ( AUSTRAC ), which is the agency empowered to make AML/CTF Rules under the Act. In the meantime, the Law Council of Australia ( LCA ) has prepared this short document to offer some information to legal practitioners on the content of the new Act. The document briefly addresses the following questions: Are legal practitioners covered by the AML/CTF Act? What obligations does the AML/CTF Act impose? How will the AML/CTF Act be enforced? Does the AML/CTF Act affect Legal Professional Privilege? When does the AML/CTF Act come into operation? Is it possible to obtain exemption from the AML/CTF Act? What next? AML-CTF guide for lawyers.doc Page 2

3 Are legal practitioners covered by the new Anti-Money Laundering and Counter-Terrorism Financing Act ( AML/CTF Act )? The new AML/CTF Act represents stage one of the Government s planned legislative reform agenda on money laundering and terrorism financing. It is aimed at the financial sector, the gambling sector and bullion dealers. It is not directly aimed at the legal profession, which will instead be targeted by stage two reforms currently in the drafting phase. Nonetheless, although the new Act is not directed at legal practitioners, they are not specifically exempted from its operation. To the extent that legal practitioner are deemed to provide certain financial services they will also be subject to obligations under the Act. The Act operates on reporting entities. Reporting entities are defined not by reference to nature or type but by reference to the services they provide. Specifically, a reporting entity is defined as any person who provides a designated service. These services are listed in Section 6 of the Act. The majority of designated services fall under the banner of financial services and are listed in Table 1 of Section 6. A copy of Table 1 is attached to this document at Annexure 1. As a result of submissions received during the drafting process, the descriptions given to several designated services listed in Table 1 were refined so as to narrow the class of actors captured. As an indicative example, item 6 of Table 1 was initially described as making a loan, where the loan is made in the course of carrying on a business. The same item is now described as making a loan, where the loan is made in the course of carrying on a loans business. However, despite this refinement process, the LCA believes that depending on the nature of a legal practitioner s business, that practitioner may still be captured by the Act. Ultimately each legal practice will need to review the list of designated services set out in Table 1 and determine for itself whether the list includes any of the services the practice provides. Some examples of designated services from Table 1 which the LCA considers might capture the work of legal practitioners are discussed below. Examples of Designated Services which might capture the work of Legal Practitioners (a) Items 31 and 32 Designated Remittance Arrangement Items 31 and 32 of Table 1 Section 6 list the following services as designated services : 31. Accepting money or property from a transferor entity to be transferred under a designated remittance arrangement. AML-CTF guide for lawyers.doc Page 3

4 32. Making money or property available to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement. The term designated remittance arrangement is explained in Section 10 of the Act as follows: 10 Designated remittance arrangements etc. (1) A reference in this Act to a designated remittance arrangement is a reference to a remittance arrangement, where: (a) who accepts money or property from a transferor entity to be transferred under the remittance arrangement is not: (i) an ADI; or (ii) a bank; or (iii) a building society; or (iv) a credit union; or (v) a person specified in the AML/CTF Rules; and (b) who makes money or property available to an ultimate transferee entity as a result of a transfer under the remittance arrangement is not: (i) an ADI; or (ii) a bank; or (iii) a building society; or (iv) a credit union; or (v) a person specified in the AML/CTF Rules; and (c) the remittance arrangement satisfies such other conditions (if any) as are specified in the AML/CTF Rules. Remittance arrangement (2) A reference in this Act to a remittance arrangement is a reference to an arrangement that is for the transfer of money or property, and includes a reference to an arrangement that, under the regulations, is taken to be a remittance arrangement for the purposes of this Act. Transferor entity and ultimate transferee entity (3) For the purposes of the application of this Act to a remittance arrangement: (a) the transferor entity is from whom money or property is accepted so as to enable its transfer under the arrangement; and (b) the ultimate transferee entity is to whom money or property is ultimately transferred under the arrangement. AML-CTF guide for lawyers.doc Page 4

5 (Emphasis added) The LCA believes that legal practitioners may be involved in remittance arrangements as defined because of, amongst other things, the role they play in property settlements. In order to exclude their activities from the definition, legal practitioners could apply to be a person specified in the AML/CTF Rules for the purposes of Section 10(1)(a)(v) and (1)(b)(v). Alternatively, an application could also me made to have the AML/CTF Rules specify conditions, pursuant to Section 10(1)(c), which exclude the activities of legal practitioners from the definition of designated remittance agreement. The LCA intends to make representations to AUSTRAC to this effect. However, there is no guarantee that an exemption in this form will be forthcoming. (b) box Items 46 and 47 providing a depository or custodial service or safety deposit Items 46 and 47 of Table 1 refer to providing a custodial or depository service in the course of carrying on a business of that kind and providing a safe deposit box in the course of carrying on a business of that kind. These items also potentially describe services provided by legal practitioners, although it seems unlikely that a legal practitioner carrying on an ordinary legal practice would be deemed to be carrying on a business of providing a depository or custodial service or proving a safety deposit box. However, these are questions to be determined on the facts of each particular case. Even if the activities of legal practitioners are captured by items 46 and 47, both items are defined so as to expressly exclude an exempt legal practitioner service. That term is defined in Section 5 of the Act as a service that under the AML/CTF Rules is taken to be an exempt legal practitioner service for the purpose of this Act. These Rules have not yet been made. Again the LCA intends to make representations to AUSTRAC about the listing of services in the AML/CTF Rules as exempt legal practitioner services. (c) Other items There are other items in Table 1 of Section 6 which potentially describe and capture the work of legal practitioners. In most cases, however, legal practitioners will only be captured if they are specified under the AML/CTF Rules in such a way as to bring their activities within the relevant definition. For example, item 4 of Table 1, describes as a designated service: 4. accepting money on deposit (otherwise than by way of a deposit to an account), where the deposit-taker is: an ADI; or a bank; or a building society; or a credit union; or AML-CTF guide for lawyers.doc Page 5

6 a person specified in the AML/CTF Rules. This item has the potential to capture the routine trust account activities of legal practitioners, if legal practitioners are specified for relevant purposes as a deposit-taker under the AML/CTF Rules. While there is no indication at present that legal practitioners will be specified in this way. it will be important to continue to monitor the AML/CTF Rules as they are developed. AML/CTF Rules As is apparent from the discussion above, the extent to which the activities of legal practitioners are captured and regulated by the Act may depend on the content of the AML/CTF Rules. It is anticipated that AUSTRAC will release a revised draft of the AML/CTF Rules for consultation in January 2007, with a view to having the Rules finalized and in place by March. As noted, the LCA intends to make representations to AUSTRAC to ensure that the routine activities of legal practitioners, particularly those which are not performed in competition with financial sector services providers, are not inadvertently captured by the Act. What obligations does the Act impose? The AML/CTF Act imposes obligations on reporting entities in the following areas. Customer due diligence Reporting entities are required to identify customers to whom designated services are provided, verify their identity and monitor the ongoing provision of designated services with a view to identifying, mitigating and managing the risk that the provision of those services may facilitate money laundering or terrorism financing. In the case of certain pre-existing customers to whom the reporting entity was already providing a designated service before the commencement of the Act, the customer identification and verification requirements are suspended and are only re-enlivened if a suspicious matter reporting obligation arises in respect of the customer. The same applies in the case of customers who request and receive certain low-risk services to be specified under the AML/CTF Rules. The Act provides that a reporting entity may authorize another person to be its agent for the purpose of carrying out customer identification procedures. The common law principles of agency apply and the reporting entity will be responsible for the acts or omissions of its agent. The Act also anticipates that AML/CTF Rules will prescribe circumstances in which one reporting entity may be able to rely upon the customer identification and verification undertaken by another reporting entity. AML-CTF guide for lawyers.doc Page 6

7 Reporting Reporting entities are required to make reports to AUSTRAC about suspicious matters, transactions over a threshold amount and international funds transfer instructions. The suspicious matter reporting obligation is set out in Section 41 of the Act. The obligation arises when there are reasonable grounds to suspect: that a customer is not the customer claims to be; that the customer s agent is not they claim to be; that information obtained may be relevant to the investigation of, or prosecution of a person for, an evasion, or an attempted evasion, of a taxation law or a law of a State or Territory that deals with taxation; that information obtained may be relevant to investigation of, or prosecution of a person for, an offence against a law of the Commonwealth or of a State or Territory; that information obtained may be of assistance in the enforcement of the Proceeds of Crime Act 2002 or regulations under that Act or a law of a State or Territory that corresponds to the Proceeds of Crime Act 2002 or regulations under that Act; that the provision, or prospective provision, of a designated service to a customer is preparatory to the commission of certain financing of terrorism offences or that information obtained may be relevant to the investigation of, or prosecution of a person for certain financing of terrorism offences; that the provision, or prospective provision, of the service is preparatory to the commission of certain money laundering offences or that the information obtained may be relevant to the investigation of, or prosecution of a person for certain money laundering offences. In the case of suspicions relating to the financing of terrorism, reporting entities have 24 hours from the time the relevant suspicion is formed to make a report to AUSTRAC, in all other cases reporting entities have three business days. Section 123 of the Act prohibits reporting entities from tipping off their customer or anyone else that a suspicious matter report has been made. However, there is an exception for reporting entities who are legal practitioners and qualified accountants if the information is disclosed for the purpose of dissuading the customer from engaging in conduct that constitutes, or could constitute: (i) (ii) (iii) evasion of a taxation law; or evasion of a law of a State or Territory that deals with taxation; or an offence against a law of the Commonwealth or of a State or Territory. A reporting entity can also disclose information concerning a suspicious matter report to a legal practitioner for the purposes of obtaining legal advice. In a Question and Answer document prepared for legal practitioners and published on the Attorney-General s website during the drafting and consultation process for it was stated that ceasing to act for a client for ethical reasons would not constitute tipping AML-CTF guide for lawyers.doc Page 7

8 off under the exposure Bill. It will have to be confirmed whether this remains the case under the final Act. If a reporting entity is required to make a report to AUSTRAC about a suspicious matter, threshold transaction or international funds transfer, then authorities such as the AFP, ATO or Australian Crime Commission may obtain further information or require the production of documents from the reporting entity about the matter which was the subject of the report. More generally, the AML/CTF Rules may also require reporting entities to lodge regular reports with AUSTRAC regarding the reporting entity s compliance with the AML/CTF Act, Regulations and Rules. Record Keeping The AML/CTF Rules may provide that reporting entities are required to create records of certain designated services they provide. Reporting entities must retain these records for seven years, together with any documents provided to them by customers in relation to the provision of a designated service. Further, reporting entities must make and retain records relating to customer identification procedures and the reporting entity s AML/CTF program. It should be noted that some record keeping obligations have already commenced. AML/CTF programs Reporting entities are required to put in place an anti-money laundering and counterterrorism financing program. Each program must have two parts: Part A must be designed to identify, mitigate and manage the risk that a reporting entity may reasonably face that a designated service may involve or facilitate money laundering or financing of terrorism. Part B of the program must outline the reporting entity s customer identification procedures. A joint AML/CTF program may be used by reporting entities who are members of a designated business group. AUSTRAC will assess the reasonableness of the reporting entity s adopted AML/CTF program and will ensure that the reporting entity complies with it. Reporting entities are expressly prohibited from commencing to provide a designated service to a customer unless the reporting entity has adopted, maintained and complied with an AML/CTF program. Register of Providers of Designated Remittance Services Under Part 6 of the Act, reporting entities are expressly prohibited from providing a registrable designated remittance service unless their name and details are entered on a Register of Providers of Designated Remittance Services, which will be maintained by AUSTRAC. AML-CTF guide for lawyers.doc Page 8

9 The Act does not give AUSTRAC the power to refuse to register a reporting entity or to de-register it, except at the request of the reporting entity itself. The purpose of the Register is simply to identify providers. In the most recent consultation draft of the AML/CTF Rules, the details which will be required for registration were listed as follows: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) any business name under which is operating; a description of whether is operating as a sole trader, company, partnership, trust or through another legal structure; the full street address at which provides registrable designated remittance services, including the full street address of each branch of the person; if has an ACN or ARBN that number; if has an ABN that number; if holds an Australian financial services license the number of the license; s telephone number at its principle place of business; s facsimile number at it principle place of business; s address at its principle place of business; the full name, date of birth, residential address and residential telephone number of: (i) (ii) (iii) if is a sole trader that individual; or if comprises a partnership each partner in any other case, except if is a company each individual who has effective control of the business; (k) for the individual who is, or is to be, the primary contact for any dealings with AUSTRAC, the individual s: (i) (ii) (iii) (iv) (v) full name; and position or title; and telephone number; and facsimile number; and address; (l) a description of business carried on by including: (i) 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 under a designated remittance arrangement; AML-CTF guide for lawyers.doc Page 9

10 (ii) (iii) the main destination(s) from which money or property is to be transferred or is likely to be transferred by under a designated remittance arrangement; and the nature of any other business carried on by at the address(es) referred to in paragraph (c); (m) if provides a registrable designated remittance service through an agent: (i) (ii) if the agent is an individual the full name, date of birth, residential address, telephone number and facsimile number of the agent; if the agent is not an individual - the full name and business name of the agent, the ACN or ARBN and ABN (if applicable), and the address, telephone number and facsimile number of the agent s registered office or principal place of business; (n) the date on which commenced or is to commence offering registrable designated remittance services. The Act does not set out in detail the substance of the obligations it creates. Instead, the Act is intended establish the principles and framework behind the AML/CTF regime, while leaving the operational details to be expanded upon in the AML/CTF Rules. Further, the Government has resolved to adopt a risk-based approach to AML/CTF regulation. This means that rather than being required to comply with rigid and prescriptive regulations, reporting entities will be permitted to employ discretionary operating procedures which allow them to distinguish between high risk and low risk services and customers, and to focus their detection and mitigation efforts accordingly. The AML/CTF Rules will be vital in establishing the parameters of this approach. As noted above, the AML/CTF Rules are yet to be finalized. The LCA anticipates that a Revised Exposure Draft will be released for consultation in January 2007, with a view to finalizing the AML/CTF Rules by 31 March When the Rules have been finalized the LCA will provide more details to legal practitioners about the exact nature of their obligations should they fall within the definition of a reporting entity. How will the Act be enforced? Most provisions under the Act which impose obligations on reporting entities or establish prohibitions are designated as civil penalty provisions. In the event of an alleged contravention of one of these provisions, AUSTRAC may apply to the Federal Court for a pecuniary penalty order of up to 100,000 penalty units for a body corporate and 20,000 penalty units for other entities. AUSTRAC may also give a remedial direction to a reporting entity that has contravened a civil penalty order, seek an injunction from the Federal Court or accept an enforceable undertaking. In addition to the civil penalty provisions, the Act also creates a number of criminal offences. These offences include producing false or misleading information or AML-CTF guide for lawyers.doc Page 10

11 documents, providing or receiving a designated service using a false customer name or customer anonymity, and structuring a transaction to avoid reporting obligations under the Act. Does the Act affect Legal Professional Privilege? Section 242 of the Act specifically states that the Act does not affect the law relating to legal professional privilege. Legal practitioners are not required to make reports that are based on information that is subject to legal professional privilege. When Does the Act come into operation? The Act will be phased into operation over a 24 month period commencing the day after the date of Royal Assent, which was received on 12 December The commencement dates for different provisions of the Act are set out in Section 2 of the Act. Following is a summary of the commencement timetable. Provisions which commenced on 13 December 2006 are: Provisions which establish the structure, powers and operating procedures of AUSTRAC; Provisions imposing reporting obligations in relation to cross-border movements of physical currency and bearer-negotiable instruments; Provisions requiring that certain information about the origin of transferred money be obtained in relation to electronic funds transfer instructions; Provisions prohibiting or regulating transactions with residents of prescribed foreign countries; Provisions prohibiting the provision of a designated remittance service by a person whose name is not entered on the Register of Providers of Designated Remittance Services to be maintained by AUSTRAC; and Provisions requiring reporting entities to create and retain records and documents in relation to the provision of designated services. These last two bolded items are likely to be of greatest importance to legal practitioners, particularly given the current definition of a designated remittance service which is discussed above in the section titled Are legal practitioners covered by the AML/CTF Act? Provisions scheduled to commence 6 months from Royal Assent (13 June 2007) are: Provisions which allow AUSTRAC to require reporting entities to submit compliance reports; and Provisions regulating correspondent banking relationships AML-CTF guide for lawyers.doc Page 11

12 Provisions scheduled to commence 1 year from Royal Assent (13 December 2007) are: Provisions imposing customer identification procedures; Provisions requiring reporting entities to create and retain records in relation to customer identification procedures; Provisions requiring reporting entities to establish and maintain an antimoney laundering and counter-terrorism financing program; and Provisions requiring reporting entities to create and retain records n relation to their AML/CTF programs. Provisions scheduled to commence 2 years from Royal Assent (13 December 2008) are: Provisions imposing ongoing customer due diligence obligations; Provisions imposing suspicious matter reporting obligations; Provisions imposing international funds transfer reporting obligations; and Provisions imposing threshold transaction reporting obligations. In relation to the last point it should be noted that Section 15A of the Financial Transactions Reporting Act, which already requires legal practitioners to report cash transactions of $10,000 or more to AUSTRAC, will remain in force. When, after 2 years, the threshold transaction reporting obligations commence under the AML/CTF Act, transactions which must be reported by legal practitioners pursuant to the AML/CTF Act will no longer need to be reported pursuant to the Financial Transactions Reporting Act. Enforcement Provisions The Government has advised that there will be a 15 month prosecution free period in relation to the civil penalty provisions of the Act. However, only reporting entities which can demonstrate that they have made a genuine attempt to comply with their obligations will benefit from the prosecution free period. Is it possible to obtain exemption from the Act? Section 247 of the Act enables AUSTRAC to make AML/CTF Rules which provide exemptions from all or part of the Act for: a) a designated service of a kind specified in the Rules; or b) a designated service that is provided in circumstances specified in the Rules. Sections 39, 42, 44, 93 and 118 authorize AUSTRAC to grant exemptions under the Rules in similar terms in respect of specific Parts and provisions of the Act. AML-CTF guide for lawyers.doc Page 12

13 AUSTRAC may also, by written instrument, exempt a specific person conditionally or unconditionally from all or part of the Act. Little guidance is provided in the Act with respect to the circumstances in which an exemption in any form will be granted. The LCA has previously made representations to those responsible for the drafting of the Act seeking a general exemption for legal practitioners as a class. A general exemption of this kind is unlikely to be forthcoming. The position of the Australian Government is that: it is important the legal practitioners who provide services at risk of being used for money laundering or terrorism financing be subject to the same legislative obligations and protections as other financial service providers. What next? This AML/CTF Act is only stage one of the Australian Government s proposed AML/CTF legislative reforms. Stage two reforms, currently in the drafting phase, are intended to regulate the activities of legal practitioners and other classes of professionals more directly. The stated aim of the reforms is to bring Australia into compliance with international standards, particularly the Recommendations of the Financial Action Task Force (FATF). The FATF Recommendations state that lawyers should be subject to the customer due diligence obligations when they prepare for or carry out transactions for their client concerning the following activities: buying and selling of real estate; managing of client money, securities or other assets; management of bank, savings or securities accounts; organization of contributions for the creation, operation or management of companies; creation, operation or management of legal persons or arrangements, and buying and selling of business entities. The FATF Recommendations also state the lawyers should be subject to suspicious matter reporting requirements when on behalf of or for a client they engage in a financial transaction in relation to any of those 5 activities. The FATF Recommendations recognize however that lawyers are not required to report their suspicions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. The FATF Recommendations leave considerable room for interpretation and they have been implemented differently in different jurisdictions. The LCA will continue to be involved in consultation with the Australian Government in relation to how the Government gives effect to these Recommendations in the stage two AML/CTF reforms. AML-CTF guide for lawyers.doc Page 13

14 The LCA, together with peak bodies representing the legal profession in other jurisdictions, will also continue to engage with FATF to help clarify and agree the circumstances in which, and the extent to which, it is appropriate to subject legal practitioners to reporting obligations. AML-CTF guide for lawyers.doc Page 14

15 ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006 (NO. 169, 2006) - SECT 6 Designated services (1) For the purposes of this Act, the following tables define: (a) the provision of a designated service ; and (b) (the customer ) to whom the designated service is provided. Table 1--Financial services (2) Table 1 is as follows: Table 1--Financial services 1 in the capacity of account provider, opening an account, where the account provider is: the holder of the account (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules 2 in the capacity of account provider for a new or existing account, allowing a person to become a signatory to the account, where the account provider is: the signatory (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules

16 Table 1--Financial services 3 in the capacity of account provider for an account, allowing a transaction to be conducted in relation to the account, where the account provider is: both: (a) the holder of the account; and (b) each other signatory to the account (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules 4 accepting money on deposit (otherwise than by way of deposit to an account), where the deposit-taker is: in whose name the deposit is held (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules 5 in the capacity of deposit-taker for a deposit, allowing a transaction to be conducted in relation to the deposit, where the deposit-taker is: in whose name the deposit is held (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules 6 making a loan, where the loan is made in the course of carrying on a loans business the borrower

17 Table 1--Financial services 7 in the capacity of: the borrower (a) lender for a loan; or (b) assignee (whether immediate or otherwise) of the lender for a loan; allowing the borrower to conduct a transaction in relation to the loan, where the loan was made in the course of carrying on a loans business 8 factoring a receivable, where the receivable is factored in the course of carrying on a factoring business 9 forfaiting: whose receivable is factored whose bill or note is forfaited (a) a bill of exchange; or (b) a promissory note; where the bill or note is forfaited in the course of carrying on a forfaiting business 10 supplying goods by way of lease under a finance lease, where: the lessee (a) the goods are not acquired by a consumer (within the meaning of section 4B of the Trade Practices Act 1974 ); and (b) the supply is in the course of carrying on a finance leasing business 11 in the capacity of lessor under a finance lease, allowing the lessee to conduct a transaction in relation to the lease, where: the lessee (a) the goods were not acquired by a consumer (within the meaning of section 4B of the Trade Practices Act 1974 ); and (b) the supply was in the course of carrying on a finance leasing business 12 supplying goods to a person by way of hire-purchase, where: (a) the goods are not acquired by a consumer (within the meaning of section 4B of the Trade Practices Act 1974 ); and (b) the supply is in the course of carrying on a business of supplying goods

18 Table 1--Financial services 13 in the capacity of supplier of goods to a person by way of hire-purchase, allowing to conduct a transaction in relation to the hire-purchase agreement concerned, where: (a) the goods were not acquired by a consumer (within the meaning of section 4B of the Trade Practices Act 1974 ); and (b) the supply was in the course of carrying on a business of supplying goods 14 in the capacity of account provider for an account, providing a chequebook, or a similar facility, that enables the holder of the account to draw a cheque on the account 15 in the capacity of building society or credit union, providing a chequebook, or a similar facility, that enables the holder of an account with the building society or credit union to draw a cheque on an account held by the building society or credit union 16 in the capacity of trustee or manager of a trust, providing a chequebook, or a similar facility, that enables the holder of a beneficial interest in the trust to draw a cheque on an account held by the trustee or manager of the trust 17 issuing: the holder of the account the holder of the account with the building society or credit union the holder of the beneficial interest in the trust (a) a bill of exchange; or (b) a promissory note; or (c) a letter of credit; to a person, where the bill, note or letter is issued by: (d) an ADI; or (e) a bank; or (f) a building society; or (g) a credit union; or (h) a person specified in the AML/CTF Rules 18 issuing a debit card that enables the holder of an account to debit the account the holder of the account

19 Table 1--Financial services 19 in the capacity of building society or credit union, issuing a debit card that enables the holder of an account with the building society or credit union to debit an account held by the building society or credit union the holder of the account with building society or credit union 20 in the capacity of trustee or manager of a trust, issuing a debit card that enables the holder of a beneficial interest in the trust to debit an account held by the trustee or manager of the trust 21 issuing a stored value card to a person, where: (a) the whole or a part of the monetary value stored on the card may be withdrawn in cash; and (b) the monetary value stored on the card is not less than: (i) $1,000; or the holder of the beneficial interest in the trust (ii) if another amount is specified in the regulations--that other amount 22 increasing the monetary value stored on a stored value card held by a person, where: (a) the whole or a part of the monetary value stored on the card may be withdrawn in cash; and (b) the increased monetary value is not less than: (i) $1,000; or (ii) if another amount is specified in the regulations--that other amount 23 issuing a stored value card to a person, where: (a) no part of the monetary value stored on the card may be withdrawn in cash; and (b) the monetary value stored on the card is not less than: (i) $5,000; or (ii) if another amount is specified in the regulations--that other amount

20 Table 1--Financial services 24 increasing the monetary value stored on a stored value card held by a person, where: (a) no part of the monetary value stored on the card may be withdrawn in cash; and (b) the increased monetary value is not less than: (i) $5,000; or (ii) if another amount is specified in the regulations--that other amount 25 issuing a traveller's cheque to a person 26 in the capacity of issuer of a traveller's cheque, cashing or redeeming a traveller's cheque held by a person 27 issuing a money order, postal order or similar order to a person, where the face value of the order is not less than: (a) $1,000; or (b) if another amount is specified in the regulations--that other amount 28 in the capacity of issuer of a money order, postal order or similar order, cashing or redeeming a money order, postal order or similar order held by a person, where the face value of the order is not less than: (a) $1,000; or (b) if another amount is specified in the regulations--that other amount 29 in the capacity of ordering institution, accepting an electronic funds transfer instruction from the payer 30 in the capacity of beneficiary institution, making money available to the payee as a result of an electronic funds transfer instruction 31 accepting money or property from a transferor entity to be transferred under a designated remittance arrangement 32 making money or property available to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement the payer the payee the transferor entity the ultimate transferee entity

21 Table 1--Financial services 33 in the capacity of agent of a person, acquiring or disposing of: (a) a security; or (b) a derivative; or (c) a foreign exchange contract; on behalf of, where: (d) the acquisition or disposal is in the course of carrying on a business of acquiring or disposing of securities, derivatives or foreign exchange contracts in the capacity of agent; and (e) the service is not specified in the AML/CTF Rules 34 in the capacity of agent of a person, acquiring or disposing of: (a) a bill of exchange; or (b) a promissory note; or (c) a letter of credit; on behalf of, where: (d) the acquisition or disposal is in the course of carrying on a business of acquiring or disposing of bills of exchange, promissory notes or letters of credit in the capacity of agent; and (e) the service is not specified in the AML/CTF Rules

22 Table 1--Financial services 35 issuing or selling a security or derivative to a person, where: (a) the issue or sale is in the course of carrying on a business of issuing or selling securities or derivatives; and (b) in the case of an issue of a security or derivative--the issue does not consist of the issue by a company of a security of the company or of an option to acquire a security of the company; and (c) in the case of an issue of a security or derivative--the issue is not an exempt financial market operator issue; and (d) such other conditions (if any) as are set out in the AML/CTF Rules are satisfied 36 in the capacity of issuer of a bearer bond, redeeming a bearer bond 37 issuing, or undertaking liability as the insurer under, a life policy or sinking fund policy 38 in the capacity of insurer for a life policy or sinking fund policy, accepting a premium in relation to the policy 39 in the capacity of insurer for a life policy or sinking fund policy, making a payment to a person under the policy 40 in the capacity of provider of a pension or annuity, accepting payment of the purchase price for a new pension or annuity, where: to whom the proceeds of the redemption are paid the holder of the policy the holder of the policy to whom the pension or annuity is to be paid (a) the provider is not a self managed superannuation fund; or (b) the pension or annuity is provided in the course of carrying on a business of providing pensions or annuities

23 Table 1--Financial services 41 in the capacity of provider of a pension or annuity, making a payment to a person by way of: (a) a payment of the pension or annuity; or (b) an amount resulting from the commutation, in whole or in part, of the pension or annuity; or (c) the residual capital value of the pension or annuity; where the provider is not a self managed superannuation fund 42 in the capacity of trustee of: the member (a) a superannuation fund (other than a self managed superannuation fund); or (b) an approved deposit fund; accepting a contribution, roll-over or transfer in respect of a new or existing member of the fund 43 in the capacity of trustee of: (a) a superannuation fund (other than a self managed superannuation fund); or the member, or if the member has died, the person, or each of s, who receives the cashed whole or a cashed part of the relevant interest (b) an approved deposit fund; cashing the whole or a part of an interest held by a member of the fund 44 in the capacity of RSA provider, accepting a contribution, roll-over or transfer to an RSA in respect of a new or existing RSA holder 45 in the capacity of RSA provider, cashing the whole or a part of an interest held by an RSA holder 46 providing a custodial or depository service, where: the RSA holder the RSA holder, or if the RSA holder has died,, or each of s, who receives the cashed whole or a cashed part of the relevant interest the client of the service (a) the service is provided in the course of carrying on a business of providing custodial or depository services; and (b) the service is not an exempt legal practitioner service

24 Table 1--Financial services 47 providing a safe deposit box, or similar facility, where: who is, or each of s who are, authorised to lodge items in the safe deposit box or similar facility (a) the service is provided in the course of carrying on a business of providing safe deposit boxes or similar facilities; and (b) the service is not an exempt legal practitioner service 48 guaranteeing a loan, where the guarantee is given in the course of carrying on a business of guaranteeing loans 49 in the capacity of guarantor of a loan, making a payment to the lender, where the guarantee was given in the course of carrying on a business of guaranteeing loans 50 exchanging one currency (whether Australian or not) for another (whether Australian or not), where the exchange is provided in the course of carrying on a currency exchange business 51 collecting physical currency, or holding physical currency collected, from or on behalf of a person, where: both: (a) the lender; and (b) the borrower both: (a) the lender; and (b) the borrower whose currency is exchanged (a) the service is provided in the course of carrying on a business of collecting or holding physical currency; and (b) the physical currency was not collected by the provider of the service as consideration for the supply of goods (within the meaning of the Trade Practices Act 1974 ); and (c) the physical currency was not collected by the provider of the service as consideration for the supply of services (within the meaning of the Trade Practices Act 1974 ) other than the service of collecting or holding physical currency; and (d) the physical currency was not collected as a donation to a charity or charitable institution 52 preparing a pay-roll, on behalf of a person, in whole or in part from physical currency collected, where the service is provided in the course of carrying on a business of preparing pay-rolls

25 Table 1--Financial services 53 delivering physical currency (including pay-rolls) to a person, where the service is provided in the course of carrying on a business of delivering physical currency 54 in the capacity of holder of an Australian financial services licence, making arrangements for a person to receive a designated service (other than a service covered by this item) Note: For specification by class, see subsection 13 (3) of the Legislative Instruments Act Table 2--Bullion (3) Table 2 is as follows: Table 2--Bullion 1 buying bullion, where the buying is in the from whom the bullion is bought course of carrying on a business 2 selling bullion, where the selling is in the course of carrying on a business to whom the bullion is sold Table 3--Gambling services (4) Table 3 is as follows: Table 3--Gambling services 1 receiving or accepting a bet placed or made by a person, where the service is provided in the course of carrying on a business 2 placing or making a bet on behalf of a person, where the service is provided in the course of carrying on a business 3 introducing a person who wishes to make or place a bet to another person who is willing to receive or accept the bet, where the service is provided in the course of carrying on a business both: (a) who wishes to make or place the bet; and (b) who is willing to receive or 4 paying out winnings in respect of a bet, where the service is provided in the course of carrying on a business 5 in the capacity of controller of an eligible accept the bet to whom the winnings are paid

26 Table 3--Gambling services gaming machine venue, allowing a person to play a game on a gaming machine located at the venue, where the service is provided in the course of carrying on a business 6 accepting the entry of a person into a game, where: (a) the game is played for money or anything else of value; and (b) the game is a game of chance or of mixed chance and skill; and (c) the service is provided in the course of carrying on a business; and (d) the game is not played on a gaming machine located at an eligible gaming machine venue 7 exchanging money for gaming chips or tokens, where the service is provided in the course of carrying on a business 8 exchanging gaming chips or tokens for money, where the service is provided in the course of carrying on a business 9 paying out winnings, or awarding a prize, in respect of a game, where: whose money is exchanged whose gaming chips or tokens are exchanged to whom the winnings are paid or the prize is awarded (a) the game is played for money or anything else of value; and (b) the game is a game of chance or of mixed chance and skill; and (c) the service is provided in the course of carrying on a business; and (d) the game is not played on a gaming machine located at an eligible gaming machine venue 10 in the capacity of controller of an eligible gaming machine venue, paying out winnings, or awarding a prize, in respect of a game, where: to whom the winnings are paid or the prize is awarded (a) the game is played on a gaming machine located at the venue; and (b) the winnings are paid out, or the prize is awarded, by the controller as agent of the

27 Table 3--Gambling services owner or lessee of the gaming machine; and (c) the service is provided in the course of carrying on a business 11 in the capacity of account provider, opening an account, where: the holder of the account (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a business 12 in the capacity of account provider for a new or existing account, allowing a person to become a signatory to the account, where: the signatory (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a business 13 in the capacity of account provider for an account, allowing a transaction to be conducted in relation to the account, where: (a) the account provider is a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and both: (a) the holder of the account; and (b) each other signatory to the account (b) the purpose, or one of the purposes, of the account is to facilitate the provision of a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (c) the service is provided in the course of carrying on a business 14 exchanging one currency (whether Australian or not) for another (whether whose currency is exchanged

28 Table 3--Gambling services Australian or not), where: (a) the exchange is provided by a person who provides a service covered by item 1, 2, 3, 4, 6, 7, 8 or 9; and (b) the service is provided in the course of carrying on a business Table 4--Prescribed services (5) Table 4 is as follows: Table 4--Prescribed services 1 providing a service specified in the regulations who, under the regulations, is taken to be to whom the service is provided

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