Five months remain to get organised
One of the key items on this year's 'to do' list for all affected businesses will be getting ready for the main provisions of the Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT) Act 2009 that come into effect from 30 June 2013. Given the extent of what's required in order to comply, there's not a lot of time left. Those who've yet to make much progress in getting ready would be well advised to plan for the incoming regime as soon as possible.
AML/CFT is an issue that New Zealand has paid some attention to over the years, but just not enough. It's big business internationally. The International Monetary Fund and World Bank estimate that US$2 trillion to US$3 trillion is laundered around the world each year. Regulators aren't afraid to take action and impose substantial penalties for failing to comply with AML/CFT laws. For example, global bank HSBC has been under investigation over allegedly allowing clients to transfer potentially illicit funds from countries such as Mexico, Iran and Syria. Late last year the bank agreed to pay US$1.92 billion in fines to US authorities as a result of those investigations and, as part of its settlement, will be subject to independent monitoring and assessment against various measures directed at improving the bank's structure, controls and procedures.
New Zealand's regime
International audits have revealed significant deficiencies in New Zealand's AML/CFT regime. The Act is intended to address a number of these deficiencies. If we don't get it right, credit ratings and trade relationships with other countries could be negatively affected, which will ultimately hurt us all directly or indirectly.
So, who does the Act apply to? The Act applies to 'reporting entities', a term which includes banks, life insurers, finance companies, building societies, credit unions, issuers of securities, trustee companies, futures dealers, brokers, certain financial advisers, casinos, money service businesses, those involved in financial leasing, safe deposit businesses – the list goes on. There are a range of exclusions and exemptions for businesses that might otherwise be caught, such as accommodation providers that provide guests with safety deposit boxes, accountants, real estate agents, pawn brokers and lawyers.
Reporting entities will need:
- A written risk assessment of the money laundering and financing of terrorism that could be expected in their business
- An AML/CFT programme that includes procedures to detect, deter, manage and mitigate money laundering and the financing of terrorism
- A compliance officer appointed to administer and maintain the AML/CFT programme
- Customer due diligence processes based on their risk assessment including customer identification and verification of identity, and
- Suspicious transaction reporting, record-keeping, auditing and annual reporting systems and processes.
Guidelines have been issued
The regulatory bodies that are responsible for supervising the new regime (the Reserve Bank of New Zealand, the Financial Markets Authority and the Department of Internal Affairs) have issued guidelines on various topics to assist businesses to comply with the new regime. The topics covered so far include points of interpretation in determining whether a business is a 'reporting entity' and therefore caught by the Act, the required risk assessment and AML/CFT programme, as well as the territorial scope of the Act (including the extent to which it applies to overseas entities).
For customers of reporting entities the impact of the Act will largely be felt through the customer due diligence that will need to be done on them. This will generally involve customers having to provide more information which, in some cases, will include needing to provide information on the source of funds and wealth. Trusts in particular will come under close scrutiny, as they can be an easy way to hide the beneficial ownership of funds.
For reporting entities that don't comply with the Act, the consequences can be significant. The Act provides for a range of sanctions for non-compliance, ranging from formal warnings to injunctions, substantial fines and imprisonment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
James & Wells Intellectual Property, three time winner of the New Zealand Intellectual Property Laws Award and first IP firm in the world to achieve CEMARS® certification.