Anti-Money Laundering and Countering Financing of Terrorism Act 2009
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Reprint as at 8 September 2018
Anti-Money Laundering and Countering Financing of Terrorism Act 2009
Public Act |
2009 No 35 |
|
Date of assent |
16 October 2009 |
|
Commencement |
see section 2 |
Note
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This Act is administered by the Ministry of Justice.
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
2 Commencement
(1)
Parts 1 and 4 (except section 162) come into force on the day after the date that this Act receives the Royal assent.
(2)
Sections 68 to 71, 106 to 115, and 163 come into force 12 months after the date on which this Act receives the Royal assent.
(3)
Except as provided in subsection (5), the rest of this Act comes into force on a date to be appointed by the Governor-General by Order in Council.
(4)
One or more Orders in Council may be made appointing different dates for the commencement of different provisions.
(5)
However, section 162 may not be brought into force unless every provision of Part 2 has been brought into force.
Section 2: subpart 5 of Part 2 brought into force, on 30 June 2011, by clause 2(1) of the Anti-Money Laundering and Countering Financing of Terrorism Act Commencement Order 2011 (SR 2011/221).
Section 2: the rest of this Act (except section 162) not in force immediately after the commencement of subpart 5 of Part 2 brought into force, on 30 June 2013, by clause 2(2) of the Anti-Money Laundering and Countering Financing of Terrorism Act Commencement Order 2011 (SR 2011/221).
Section 2: section 162 brought into force, on 30 June 2013 (immediately after the rest of this Act commenced by clause 2(2) of the order), by clause 2(3) of the Anti-Money Laundering and Countering Financing of Terrorism Act Commencement Order 2011 (SR 2011/221).
Part 1 Preliminary provisions
3 Purpose
(1)
The purposes of this Act are—
(a)
to detect and deter money laundering and the financing of terrorism; and
(b)
to maintain and enhance New Zealand’s international reputation by adopting, where appropriate in the New Zealand context, recommendations issued by the Financial Action Task Force; and
(c)
to contribute to public confidence in the financial system.
(2)
Accordingly, this Act facilitates co-operation amongst reporting entities, AML/CFT supervisors, and various government agencies, in particular law enforcement and regulatory agencies.
4 Overview
(1)
This section is a guide to the general scheme and effect of this Act, but does not affect the interpretation or application of the other provisions of the Act.
(2)
Part 1 deals with preliminary matters such as definitions of terms used in the Act. It sets out the purpose of the Act and the extent to which it applies to reporting entities.
(3)
Part 2 deals with AML/CFT requirements and compliance and has 7 subparts, as follows:
(a)
subpart 1 includes provisions dealing with requirements on reporting entities to conduct due diligence on customers and certain other persons, the ability of reporting entities to rely on third parties to carry out customer due diligence and other AML/CFT functions, and prohibitions on establishing or continuing business relationships and setting up facilities in certain circumstances:
(b)
subpart 2 includes provisions dealing with requirements on reporting entities to report suspicious activities and protection of persons making suspicious activity reports:
(ba)
subpart 2A sets out requirements on reporting entities to report certain prescribed transactions:
(c)
subpart 3 sets out requirements on reporting entities to keep records and includes provisions concerning the storage and destruction of records:
(d)
subpart 4 deals with reporting entities’ internal policies and procedures relating to the prevention of money laundering and the financing of terrorism, including provisions setting out requirements for reporting entities to have an AML/CFT programme for detecting and managing the risk of money laundering and the financing of terrorism, to carry out a risk assessment before conducting customer due diligence or establishing an AML/CFT programme, and to review, audit, and report on their risk assessment and AML/CFT programmes:
(e)
subpart 5 deals with codes of practice and includes provisions relating to the preparation of codes by AML/CFT supervisors, approval of codes of practice, and their legal effect:
(f)
subpart 6 contains provisions relating to the reporting of certain movements of cash into and out of New Zealand.
(4)
Part 3 deals with enforcement and contains provisions relating to civil liability acts, offences, search and seizure, penalties, and immunity of certain persons from civil and criminal proceedings.
(5)
Part 4 deals with institutional arrangements and miscellaneous matters and has 2 subparts, as follows:
(a)
subpart 1 includes provisions that identify the AML/CFT supervisors and their functions, powers, and ability to delegate supervisory functions; the financial intelligence functions of the Commissioner of Police and a requirement on that person to issue guidelines relating to the reporting of suspicious activities and prescribed transactions; the roles and responsibilities of the Ministry, the AML/CFT co-ordination committee required to be established by the chief executive of the Ministry, and other agencies concerning monitoring, evaluating, and advising on the operation of the AML/CFT regulatory system:
(b)
subpart 2 includes regulation-making powers and provisions relating to the Minister’s power to grant exemptions from the requirements of the Act.
Section 4(3): amended, on 1 July 2017, by section 4(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 4(3)(b): replaced, on 11 August 2017, by section 4(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 4(3)(ba): inserted, on 1 July 2017, by section 4(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 4(5)(a): amended, on 11 August 2017, by section 4(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
5 Interpretation
(1)
In this Act, unless the context otherwise requires,—
accounting practice means—
(a)
an accountant in public practice on his or her own account in sole practice:
(b)
in relation to 2 or more accountants in public practice, and practising in partnership, the partnership:
(c)
an incorporated accounting practice
AML/CFT means anti-money laundering and countering the financing of terrorism
AML/CFT programme means a compliance programme established under section 56(1)
AML/CFT requirements means the requirements set out in Part 2
AML/CFT supervisor, in relation to a reporting entity, means the person referred to in section 130(1) that is responsible for supervising the reporting entity under Parts 3 and 4
applicable threshold value means the threshold value that—
(a)
is prescribed in regulations; and
(b)
applies to a particular person, class of persons, transaction, class of transactions, financial activity, or class of financial activities prescribed in regulations
approved entity means an entity—
(a)
that is prescribed by regulations as an approved entity; or
(b)
that comes within a class of entities prescribed by regulations as a class of approved entities
bearer-negotiable instrument means—
(a)
a bill of exchange; or
(b)
a cheque; or
(c)
a promissory note; or
(d)
a bearer bond; or
(e)
a traveller’s cheque; or
(f)
a money order, postal order, or similar order; or
(g)
any other instrument prescribed by regulations
beneficial owner means the individual who—
(a)
has effective control of a customer or person on whose behalf a transaction is conducted; or
(b)
owns a prescribed threshold of the customer or person on whose behalf a transaction is conducted
beneficiary institution, in relation to a wire transfer from an ordering institution, means any person who receives those funds and then makes those funds available to a person (the payee) by—
(a)
crediting it to an account held by the payee; or
(b)
paying it to the payee
business relationship means a business, professional, or commercial relationship between a reporting entity and a customer that has an element of duration or that is expected by the reporting entity, at the time when contact is established, to have an element of duration
cash means—
(a)
physical currency:
(b)
bearer-negotiable instruments
cash report means a report made under subpart 6 of Part 2
casino means the holder of a casino operator’s licence under the Gambling Act 2003
chief executive means the chief executive of the Ministry
civil liability act has the meaning set out in section 78
code of practice and proposed code of practice have the meanings set out in section 62
Commissioner means the Commissioner of Police
constable has the same meaning as in section 4 of the Policing Act 2008
conveyancing practitioner has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
correspondent banking relationship has the meaning set out in section 29(3)
country includes any State, territory, province, or other part of a country
customer—
(a)
means a new customer or an existing customer; and
(b)
includes—
(i)
a facility holder:
(ii)
a person conducting or seeking to conduct an occasional transaction or activity through a reporting entity:
(iii)
a junket organiser as defined in section 4(1) of the Gambling Act 2003:
(iv)
a person or class of persons declared by regulations to be a customer for the purposes of this Act; but
(c)
excludes a person or class of persons that is declared by regulations not to be a customer for the purposes of this Act
Customs officer has the same meaning as in section 2(1) of the Customs and Excise Act 1996
designated business group means a group of 2 or more persons in which—
(a)
each member of the group has elected, in writing, to be a member of the group and the election is in force; and
(b)
each election was made in accordance with regulations (if any); and
(c)
no member of the group is a member of another designated business group; and
(d)
each member of the group is—
(i)
related to each other member of the group within the meaning of section 2(3) of the Companies Act 1993 and is—
(A)
a reporting entity resident in New Zealand; or
(B)
a person that is resident in a country that has sufficient AML/CFT systems and is supervised or regulated for AML/CFT purposes; or
(ii)
providing a service under a joint venture agreement to which each member of the group is a party; or
(iii)
a government department named in Schedule 1 of the State Sector Act 1988, a State enterprise under the State-Owned Enterprises Act 1986, or a Crown entity under section 7 of the Crown Entities Act 2004; or
(iv)
related to 1 or more of the entities referred to in subparagraph (iii) through the provision of common products or services; or
(v)
a body corporate that is—
(A)
either a company (within the meaning of section 2(1) of the Companies Act 1993) or an overseas company within the meaning of that section; and
(B)
related (within the meaning of section 12(2) of the Financial Markets Conduct Act 2013) to every body corporate in the designated business group or proposed designated business group; and
(C)
either a reporting entity resident in New Zealand or a person who is resident in a country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes; or
(vi)
a related law firm, or a subsidiary of a law firm, that is a reporting entity in New Zealand (or the equivalent body in another country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(vii)
a related conveyancer, or a subsidiary of a conveyancer, that is a reporting entity in New Zealand (or the equivalent body in another country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(viii)
a related accounting practice, or a subsidiary of an accounting practice, that is a reporting entity in New Zealand (or the equivalent body in another country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(ix)
a related trust and company service provider, or a subsidiary of a trust and company service provider, that is a reporting entity in New Zealand (or the equivalent body in another country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(x)
a related real estate agent, or a subsidiary of a real estate agent, that is a reporting entity in New Zealand (or the equivalent in another country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(xi)
a related high-value dealer, or a subsidiary of a high-value dealer, that is a reporting entity in New Zealand (or an equivalent person resident outside New Zealand in a country that has sufficient AML/CFT systems and that is supervised or regulated for AML/CFT purposes); or
(xii)
a group of reporting entities, if the entities are each money transfer agents or sub-agents and each entity is related to every other entity in the designated business group or proposed designated business group in either of the following ways:
(A)
one of those entities is a money transfer agent and the other entities are the sub-agents of those agents:
(B)
those entities are each sub-agents of the same money transfer agent; or
(xiii)
an entity or a class of entities prescribed by regulations; and
(e)
each member of the group satisfies any conditions in subsection (3) that apply to that member
designated non-financial business or profession means—
(a)
a law firm, a conveyancing practitioner, an incorporated conveyancing firm, an accounting practice, a real estate agent, or a trust and company service provider, who, in the ordinary course of business, carries out 1 or more of the following activities:
(i)
acting as a formation agent of legal persons or legal arrangements:
(ii)
acting as, or arranging for a person to act as, a nominee director or nominee shareholder or trustee in relation to legal persons or legal arrangements:
(iii)
providing a registered office or a business address, a correspondence address, or an administrative address for a company, or a partnership, or for any other legal person or arrangement, unless the office or address is provided solely as an ancillary service to the provision of other services (being services that do not constitute an activity listed in this subparagraph or subparagraphs (i), (ii), and (iv) to (vi)):
(iv)
managing client funds (other than sums paid as fees for professional services), accounts, securities, or other assets:
(v)
providing real estate agency work (within the meaning of section 4(1) of the Real Estate Agents Act 2008) to effect a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008):
(vi)
engaging in or giving instructions on behalf of a customer to another person for—
(A)
any conveyancing (within the meaning of section 6 of the Lawyers and Conveyancers Act 2006) to effect a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008), namely,—
the sale, the purchase, or any other disposal or acquisition of a freehold estate or interest in land:
the grant, sale, or purchase or any other disposal or acquisition of a leasehold estate or interest in land (other than a tenancy to which the Residential Tenancies Act 1986 applies):
the grant, sale, or purchase or any other disposal or acquisition of a licence that is registrable under the Land Transfer Act 1952:
the grant, sale, or purchase or any other disposal or acquisition of an occupation right agreement within the meaning of section 5 of the Retirement Villages Act 2003:
(B)
a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008); or
(C)
the transfer of a beneficial interest in land or other real property; or
(D)
a transaction on behalf of any person in relation to the buying, transferring, or selling of a business or legal person (for example, a company) and any other legal arrangement; or
(E)
a transaction on behalf of a customer in relation to creating, operating, and managing a legal person (for example, a company) and any other legal arrangement; and
(b)
includes a person or class of persons declared by regulations to be a designated non-financial business or profession for the purposes of this Act; but
(c)
excludes a person or class of persons declared by regulations not to be a designated non-financial business or profession for the purposes of this Act
domestic physical cash transaction means a transaction in New Zealand involving the use of physical currency
domestic wire transfer has the meaning set out in section 27(7)
existing customer, in relation to a reporting entity, means a person who was in a business relationship with the reporting entity immediately before any provisions of this Act began to apply to the reporting entity
facility—
(a)
means any account or arrangement—
(i)
that is provided by a reporting entity; and
(ii)
through which a facility holder may conduct 2 or more transactions; and
(b)
without limiting paragraph (a), includes—
(i)
a life insurance policy:
(ii)
membership of a superannuation scheme, workplace savings scheme, or KiwiSaver scheme:
(iii)
the provision, by a reporting entity, of facilities for safe custody, including (without limitation) a safety deposit box:
(iv)
an account or arrangement declared by regulations to be a facility for the purposes of this Act; but
(c)
excludes an account or arrangement declared by regulations not to be a facility for the purposes of this Act
facility holder, in relation to a facility,—
(a)
means the person in whose name the facility is established; or
(b)
if that facility is a life insurance policy, means any person who for the time being is the legal holder of that policy; or
(c)
if that facility consists of membership of a superannuation scheme, workplace savings scheme, or KiwiSaver scheme, means the product holder of the managed investment product in the scheme (within the meanings of product holder and managed investment product in section 6(1) of the Financial Markets Conduct Act 2013)
financial institution—
(a)
means a person who, in the ordinary course of business, carries on 1 or more of the following financial activities:
(i)
accepting deposits or other repayable funds from the public:
(ii)
lending to or for a customer, including consumer credit, mortgage credit, factoring (with or without recourse), and financing of commercial transactions (including forfeiting):
(iii)
financial leasing (excluding financial leasing arrangements in relation to consumer products):
(iv)
transferring money or value for, or on behalf of, a customer:
(v)
issuing or managing the means of payment (for example, credit or debit cards, cheques, traveller’s cheques, money orders, bankers’ drafts, or electronic money):
(vi)
undertaking financial guarantees and commitments:
(vii)
trading for, or on behalf of, a customer in any of the following using the person’s account or the customer’s account:
(A)
money market instruments (for example, cheques, bills, certificates of deposit, or derivatives):
(B)
foreign exchange:
(C)
exchange, interest rate, or index instruments:
(D)
transferable securities:
(E)
commodity futures trading:
(viii)
participating in securities issues and the provision of financial services related to those issues:
(ix)
managing individual or collective portfolios:
(x)
safe keeping or administering of cash or liquid securities on behalf of other persons:
(xi)
investing, administering, or managing funds or money on behalf of other persons:
(xii)
issuing, or undertaking liability under, life insurance policies as an insurer:
(xiii)
money or currency changing; and
(b)
includes a person or class of persons declared by regulations to be a financial institution for the purposes of this Act; but
(c)
excludes a person or class of persons declared by regulations not to be a financial institution for the purposes of this Act
financing of terrorism has the same meaning as in section 4(1) of the Terrorism Suppression Act 2002
gambling inspector has the same meaning as in section 4(1) of the Gambling Act 2003
government agency means—
(a)
a government department named in Schedule 1 of the State Sector Act 1988; or
(b)
a Crown entity under section 7 of the Crown Entities Act 2004; or
(c)
the Reserve Bank, the Parliamentary Counsel Office, and the New Zealand Police; or
(d)
any overseas country’s counterpart of any of the entities in paragraphs (a) to (c)
high-value dealer—
(a)
means a person who is in trade and in the ordinary course of business, buys or sells all or any of the following articles by way of a cash transaction or a series of related cash transactions, if the total value of that transaction or those transactions is equal to or above the applicable threshold value:
(i)
jewellery:
(ii)
watches:
(iii)
gold, silver, or other precious metals:
(iv)
diamonds, sapphires, or other precious stones:
(v)
paintings:
(vi)
prints:
(vii)
protected foreign objects (within the meaning of section 2(1) of the Protected Objects Act 1975):
(viii)
protected New Zealand objects (within the meaning of section 2(1) of the Protected Objects Act 1975):
(ix)
sculptures:
(x)
photographs:
(xi)
carvings in any medium:
(xii)
other artistic or cultural artefacts:
(xiii)
motor vehicles (within the meaning of section 6(1) of the Motor Vehicle Sales Act 2003):
(xiv)
ships (within the meaning of section 2(1) of the Maritime Transport Act 1994); and
(b)
includes any person who carries out the activities referred to in paragraph (a) as a registered auctioneer (within the meaning of section 4(1) of the Auctioneers Act 2013); but
(c)
does not include any person, to the extent that the person is engaged in providing services other than the buying or selling of articles referred to in paragraph (a), including the following services:
(i)
mining precious metals or precious stones:
(ii)
manufacturing jewellery:
(iii)
crafting or polishing precious stones; and
(d)
does not include any person to the extent that the person is engaged in the buying or selling of precious metals or precious stones for industrial purposes
identity information means information obtained under sections 15, 19, 23, and 27(1) and (2) and any other information relating to identity prescribed by sections 29(2)(g) and 30(b)
incorporated conveyancing firm has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
incorporated law firm has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
individual means a natural person, other than a deceased natural person
intermediary institution, in relation to a wire transfer, is a person that participates in a transfer of funds that takes place through more than 1 institution but is not an ordering institution or a beneficiary institution
international wire transfer means a wire transfer where—
(a)
at least 1 of the following institutions is in New Zealand:
(i)
the ordering institution:
(ii)
the intermediary institution:
(iii)
the beneficiary institution; and
(b)
at least 1 of the following institutions is outside New Zealand:
(i)
the ordering institution:
(ii)
the intermediary institution:
(iii)
the beneficiary institution
KiwiSaver scheme has the same meaning as in section 6(1) of the Financial Markets Conduct Act 2013
law enforcement purposes means—
(a)
the prevention, disruption, detection, investigation, and prosecution of—
(i)
any offence under this Act; or
(ii)
a money laundering offence; or
(iii)
any offence within the meaning of that term in section 243(1) of the Crimes Act 1961; or
(iv)
an offence under the Terrorism Suppression Act 2002:
(b)
the enforcement and administration of—
(i)
this Act:
(ii)
(iii)
(iv)
(vi)
(c)
the performance by the New Zealand Security Intelligence Service or the Government Communications Security Bureau of its functions under the Intelligence and Security Act 2017:
(d)
the detection and prevention of the harms specified in section 58(2) of the Intelligence and Security Act 2017:
(e)
any purpose or action referred to in paragraphs (a) to (d) relating to, or taken in respect of, legislation of an overseas jurisdiction that is broadly equivalent to the enactments referred to in those paragraphs
law firm means—
(a)
a barrister or a barrister and solicitor who is practising on the barrister’s or barrister and solicitor’s own account in sole practice:
(b)
in relation to 2 or more barristers and solicitors practising law in partnership, the partnership:
(c)
an incorporated law firm
lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
legal arrangement means—
(a)
a trust:
(b)
a partnership:
(c)
a charitable entity (within the meaning of section 4(1) of the Charities Act 2005):
(d)
any other prescribed arrangement (being an arrangement that involves a risk of money laundering or the financing of terrorism)
life insurance policy means a life policy within the meaning of section 6(1) of the Insurance (Prudential Supervision) Act 2010
Minister means the Minister who is, with the authority of the Prime Minister, for the time being responsible for the administration of this Act
Ministry means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
money laundering offence means an offence against section 243 of the Crimes Act 1961 or section 12B of the Misuse of Drugs Act 1975 or any act committed overseas that, if committed in New Zealand, would be an offence under those sections of those Acts
non-bank deposit taker has the meaning given to NBDT by section 5 of the Non-bank Deposit Takers Act 2013
occasional activity—
(a)
means an activity—
(i)
that is specified in section 6(4) in relation to a reporting entity (other than an occasional transaction); and
(ii)
that does not involve a business relationship between the reporting entity and the reporting entity’s customer; and
(b)
includes an activity or a class of activities declared by regulations to be an occasional activity for the purposes of this Act; but
(c)
excludes an activity or a class of activities declared by regulations not to be an occasional activity for the purposes of this Act
occasional transaction—
(a)
means a cash transaction that occurs outside of a business relationship and is equal to or above the applicable threshold value (whether the transaction is carried out in a single operation or several operations that appear to be linked); and
(b)
includes a transaction or class of transactions declared by regulations to be an occasional transaction for the purposes of this Act; but
(c)
excludes—
(i)
cheque deposits; and
(ii)
a transaction or class of transactions declared by regulations not to be an occasional transaction for the purposes of this Act
occasional transaction or activity means—
(a)
an occasional transaction:
(b)
an occasional activity
ordering institution—
(a)
means any person who has been instructed by a person (the payer) to electronically transfer funds controlled by the payer to a person (the payee) who may or may not be the payer on the basis that the transferred funds will be made available to the payee by a beneficiary institution; and
(b)
includes a person declared by regulations to be an ordering institution for the purposes of this Act; but
(c)
excludes a person or class of persons declared by regulations not to be an ordering institution for the purposes of this Act
physical currency means the coin and printed money (whether of New Zealand or of a foreign country) that—
(a)
is designated as legal tender; and
(b)
circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue
Police employee has the same meaning as in section 4 of the Policing Act 2008
politically exposed person means—
(a)
an individual who holds, or has held at any time in the preceding 12 months, in any overseas country the prominent public function of—
(i)
Head of State or head of a country or government; or
(ii)
government minister or equivalent senior politician; or
(iii)
Supreme Court Judge or equivalent senior Judge; or
(iv)
governor of a central bank or any other position that has comparable influence to the Governor of the Reserve Bank of New Zealand; or
(v)
senior foreign representative, ambassador, or high commissioner; or
(vi)
high-ranking member of the armed forces; or
(vii)
board chair, chief executive, or chief financial officer of, or any other position that has comparable influence in, any State enterprise; and
(b)
an immediate family member of a person referred to in paragraph (a), including—
(i)
a spouse; or
(ii)
a partner, being a person who is considered by the relevant national law as equivalent to a spouse; or
(iii)
a child and a child’s spouse or partner; or
(iv)
a parent; and
(c)
having regard to information that is public or readily available,—
(i)
any individual who is known to have joint beneficial ownership of a legal entity or legal arrangement, or any other close relationship, with a person referred to in paragraph (a); or
(ii)
any individual who has sole beneficial ownership of a legal entity or legal arrangement that is known to exist for the benefit of a person described in paragraph (a)
prescribed transaction, in relation to a reporting entity, means a transaction conducted through the reporting entity in respect of—
(a)
an international wire transfer of a value equal to or above the applicable threshold value; or
(b)
a domestic physical cash transaction of a value equal to or above the applicable threshold value
prescribed transaction report means a report made under section 48A
privileged communication has the meaning set out in section 42
real estate agency work has the same meaning as in the definition of that term in section 4(1) of the Real Estate Agents Act 2008
real estate agent has the same meaning as the definition of agent in section 4(1) of the Real Estate Agents Act 2008
registered bank has the same meaning as in section 2(1) of the Reserve Bank of New Zealand Act 1989
regulations means regulations made under this Act
regulator—
(a)
means a professional body responsible under any New Zealand enactment for enforcing the regulatory obligations of a particular industry or profession whose members are subject to this Act; and
(b)
includes any other body prescribed in regulations
reporting entity—
(a)
means—
(i)
a casino:
(ii)
a designated non-financial business or profession:
(iii)
a financial institution:
(iv)
a high-value dealer:
(v)
the New Zealand Racing Board; and
(b)
includes—
(i)
a person or class of persons declared by regulations to be a reporting entity for the purposes of this Act; and
(ii)
any other person that is required by any enactment to comply with this Act as if it were a reporting entity; but
(c)
excludes a person or class of persons declared by regulations not to be a reporting entity for the purposes of this Act
search warrant means a warrant issued under section 117
senior manager (and senior management correspondingly) means,—
(a)
in relation to a reporting entity that is a company, a director within the meaning of section 126 of the Companies Act 1993; and
(b)
in relation to a reporting entity that is not a company, a person who occupies a position comparable to that of a director (for example, a trustee or partner); and
(c)
any other person who occupies a position within a reporting entity that allows that person to exercise an influence over the management or administration of the reporting entity (for example, a chief executive or a chief financial officer)
shell bank has the meaning set out in section 39(2)
superannuation scheme has the same meaning as in section 6(1) of the Financial Markets Conduct Act 2013
suspicious activity report—
(a)
means a report made under section 40:
(b)
includes—
(i)
a suspicious transaction report made under this Act; and
(ii)
a suspicious transaction report made under the Financial Transactions Reporting Act 1996
suspicious property report has the same meaning as in section 4(1) of the Terrorism Suppression Act 2002
transaction—
(a)
means any deposit, withdrawal, exchange, or transfer of funds (in any denominated currency), whether—
(i)
in cash; or
(ii)
by cheque, payment order, or other instrument; or
(iii)
by electronic or other non-physical means; and
(b)
without limiting paragraph (a), includes—
(i)
any payment made in satisfaction, in whole or in part, of any contractual or other legal obligation; and
(ii)
a transaction or class of transactions declared by regulations to be a transaction for the purposes of this Act; but
(c)
excludes the following:
(i)
the placing of any bet unless authorised under the Racing Act 2003:
(ii)
participation in gambling (as defined in section 4(1) of the Gambling Act 2003) unless authorised under the Racing Act 2003:
(iii)
a transaction or class of transactions declared by regulations not to be a transaction for the purposes of this Act
trust and company service provider means a person (other than a law firm, a conveyancing practitioner, an incorporated conveyancing firm, an accounting practice, or a real estate agent) who carries out any of the activities described in paragraphs (a)(i) to (vi) of the definition of designated non-financial business or profession
trustee has the same meaning as in section 2(1) of the Trustee Act 1956
verification information means information obtained under sections 16, 20, 24, and 28
wire transfer—
(a)
means a transaction carried out on behalf of a person (the originator) through a reporting entity by electronic means with a view to making an amount of money available to a beneficiary (who may also be the originator) at another reporting entity; and
(b)
includes a transfer or transaction, or class of transfers or transactions, declared by regulations to be a wire transfer for the purposes of this Act; but
(c)
excludes—
(i)
transfers and settlements between financial institutions or other reporting entities if both the originator and the beneficiary are financial institutions or other reporting entities acting on their own behalf; and
(ii)
credit and debit card transactions if the credit or debit card number accompanies the transaction; and
(iii)
any other transfer or transaction or class of transfers or transactions declared by regulations not to be a wire transfer for the purposes of this Act.
workplace savings scheme has the same meaning as in section 6(1) of the Financial Markets Conduct Act 2013
(2)
For the purposes of paragraph (d)(xii) of the definition of designated business group in subsection (1),—
money transfer agent, in relation to a money transfer provider, means a reporting entity that has a representation agreement with a money transfer provider
money transfer provider means a person who, under a representation agreement, authorises a money transfer agent to carry on money transfer services on behalf of the money transfer provider and to engage sub-agents for the purpose of carrying on those services in New Zealand
money transfer services means the provision of remittance services that are carried on, otherwise than by a bank, under a single brand, trade mark, or business name
representation agreement means a written agreement between a money transfer provider and a money transfer agent, or between a money transfer agent and a sub-agent, that states the terms on which the money transfer agent, or the sub-agent, carries on money transactions for customers relating to creating, operating, and managing companies
sub-agent means a reporting entity that has a representation agreement with a money transfer agent.
(3)
For the purposes of paragraph (e) of the definition of designated business group in subsection (1), a condition of membership is that the contact person of a designated business group must notify the relevant AML/CFT supervisor, in writing within 30 days, of any of the following:
(a)
the withdrawal of a member from the designated business group:
(b)
the termination of the designated business group:
(c)
any other change in the details previously notified to any AML/CFT supervisor in respect of the designated business group.
(4)
For the purpose of applying the definitions of designated non-financial business or profession and designated business group, a reporting entity must take into account guidance (if any) on the application of those definitions issued by the relevant AML/CFT supervisor.
Section 5(1) accounting practice: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) approved entity: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) conveyancing practitioner: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) customer paragraph (b)(ii): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) designated business group: replaced, on 11 August 2017, by section 5(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) designated non-financial business or profession: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) domestic physical cash transaction: inserted, on 1 July 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 5(1) existing customer: replaced, on 11 August 2017, by section 5(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) facility paragraph (b)(ii): replaced, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 5(1) facility holder paragraph (c): replaced, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 5(1) financial institution paragraph (a)(vii): amended, on 11 August 2017, by section 5(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) financial institution paragraph (a)(xii): substituted, on 1 February 2011, by section 241(2) of the Insurance (Prudential Supervision) Act 2010 (2010 No 111).
Section 5(1) government agency paragraph (c): replaced, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).
Section 5(1) government agency paragraph (d): replaced, on 5 December 2013, by section 4 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
Section 5(1) high-value dealer: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) incorporated conveyancing firm: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) incorporated law firm: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) international wire transfer: inserted, on 1 July 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 5(1) KiwiSaver scheme: inserted, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 5(1) law enforcement purposes: replaced, on 11 August 2017, by section 5(5) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) law firm: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) lawyer: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) legal arrangement: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) life insurance policy: inserted, on 1 February 2011, by section 241(2) of the Insurance (Prudential Supervision) Act 2010 (2010 No 111).
Section 5(1) non-bank deposit taker: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) occasional activity: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) occasional transaction paragraph (a): amended, on 11 August 2017, by section 5(6) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) occasional transaction or activity: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) prescribed transaction: inserted, on 1 July 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 5(1) prescribed transaction paragraph (a): amended, on 11 August 2017, by section 5(7) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) prescribed transaction paragraph (b): amended, on 11 August 2017, by section 5(7) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) prescribed transaction report: inserted, on 1 July 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 5(1) privileged communication: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) real estate agency work: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) real estate agent: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) regulator: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) reporting entity paragraph (a): replaced, on 11 August 2017, by section 5(8) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) search warrant: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) security: repealed, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).
Section 5(1) superannuation scheme: inserted, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 5(1) suspicious activity report: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) suspicious transaction report: repealed, on 11 August 2017, by section 5(9) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) transaction paragraph (c): replaced, on 11 August 2017, by section 5(10) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) trust and company service provider: inserted, on 11 August 2017, by section 5(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) wire transfer: replaced, on 11 August 2017, by section 5(11) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(1) workplace savings scheme: inserted, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 5(2): inserted, on 11 August 2017, by section 5(12) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(3): inserted, on 11 August 2017, by section 5(12) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 5(4): inserted, on 11 August 2017, by section 5(12) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
6 Application of this Act to reporting entities
(1)
Subject to subsections (2) and (3) and to Schedule 1, this Act (as amended by the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017) applies to any reporting entity that is in existence at the commencement of this section or that comes into existence on or after the commencement of this section.
(2)
Sections 39A to 41 and 43 to 47 (as inserted by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017) do not apply until 1 July 2018 or an earlier date appointed by the Governor-General by Order in Council.
(3)
This Act—
(a)
does not apply to a law firm, a conveyancing practitioner, or an incorporated conveyancing firm until 1 July 2018 or an earlier date set by the Governor-General by Order in Council:
(b)
does not apply to an accounting practice until 1 October 2018 or an earlier date set by the Governor-General by Order in Council:
(c)
does not apply to a real estate agent until 1 January 2019 or an earlier date set by the Governor-General by Order in Council:
(d)
does not apply to the New Zealand Racing Board or a high-value dealer until 1 August 2019 or an earlier date set by the Governor-General by Order in Council:
(e)
in the case of a trust and company service provider that immediately before the commencement of this section was a reporting entity under regulation 17 of the Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Regulations 2011, applies on and after the date on which this section comes into force:
(f)
in the case of a trust or company service provider to which paragraph (e) does not apply, applies on 1 July 2018 or an earlier date set by the Governor-General by Order in Council.
(4)
This Act applies to a reporting entity only to the extent that,—
(a)
in the case of a reporting entity that is a financial institution, the financial activities undertaken by that entity fall within the activities described in the definition of financial institution in section 5(1):
(b)
in the case of the New Zealand Racing Board, it carries out the following:
(i)
the conduct of betting under section 50 of the Racing Act 2003:
(ii)
the operation of accounts or provision of vouchers:
(c)
in the case of a law firm, conveyancer, incorporated conveyancing firm, accounting practice, real estate agent, or other designated non-financial business or profession, the activities carried out by that reporting entity are activities described in the definition of designated non-financial business or profession in section 5(1):
(d)
in the case of a high-value dealer,—
(i)
the high-value dealer carries out activities described in the definition of high-value dealer in section 5(1); and
(ii)
if subparagraph (i) applies, the high-value dealer—
(A)
must conduct standard customer due diligence under sections 14(1)(b), 15, and 16:
(B)
may rely on third parties under sections 32 to 34:
(C)
must comply with the prohibitions under section 37 if the high-value dealer is unable to conduct standard customer due diligence:
(D)
may report suspicious activities to the Commissioner under section 40(5) (in which case sections 44 to 46 (which relate to suspicious activities) apply to the high-value dealer):
(E)
must report prescribed transactions equal to or above the applicable cash threshold under sections 48A and 48B:
(F)
must keep records of any suspicious activity reports under section 49A:
(G)
must keep identity and verification records under section 50 when standard customer due diligence is conducted:
(H)
must keep records of any audits under section 51(1)(b), (2), and (3):
(I)
must audit its AML/CFT compliance obligations under section 59A if requested by an AML/CFT supervisor:
(e)
in the case of a casino, the casino carries out activities that may give rise to a risk of money laundering or financing of terrorism.
Section 6: replaced, on 11 August 2017, by section 6 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
7 Amounts not in New Zealand currency
(1)
This section applies if, for the purposes of this Act or regulations, it is necessary to determine whether the amount of any cash (whether alone or together with any other amount of cash)—
(a)
is equal to or above the applicable threshold value; and
(b)
is denominated in a currency other than New Zealand currency.
(2)
If this section applies, the amount of the cash is taken to be the equivalent in New Zealand currency,—
(a)
calculated at the rate of exchange on the date of the determination; or
(b)
if there is more than 1 rate of exchange on that date, calculated at the average of those rates.
(3)
For the purposes of this section, a written certificate purporting to be signed by an officer of any bank in New Zealand that a specified rate of exchange prevailed between currencies on a specified day, and that at such rate a specified sum in a particular currency is equivalent to a specified sum in terms of the currency of New Zealand, is sufficient evidence of the rate of exchange so prevailing and of the equivalent sums in terms of the respective currencies.
Compare: 1996 No 9 s 4
Section 7(1): amended, on 11 August 2017, by section 7(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 7(1)(a): amended, on 11 August 2017, by section 7(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
7A Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
Section 7A: inserted, on 11 August 2017, by section 8 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
8 Act binds the Crown
This Act binds the Crown.
Part 2 AML/CFT requirements and compliance
9 Non-compliance not excused by contractual obligations
(1)
This Act has effect despite anything to the contrary in any contract or agreement.
(2)
No person is excused from compliance with any requirement of this Act or regulations by reason only that compliance with that requirement would constitute breach of any contract or agreement.
Subpart 1—Customer due diligence
10 Definitions
In this subpart, unless the context otherwise requires,—
enhanced customer due diligence means customer due diligence in accordance with the requirements set out in sections 23 to 30 and any other requirements prescribed by regulations
simplified customer due diligence means customer due diligence in accordance with the requirements set out in sections 19 to 21 and any other requirements prescribed by regulations
standard customer due diligence means customer due diligence in accordance with the requirements set out in sections 15 to 17 and any other requirements prescribed by regulations.
11 Customer due diligence
(1)
A reporting entity must conduct customer due diligence on—
(a)
a customer:
(b)
any beneficial owner of a customer:
(c)
any person acting on behalf of a customer.
(2)
For the purposes of subsection (1)(b), a customer who is an individual and who the reporting entity believes on reasonable grounds is not acting on behalf of another person is to be treated as if he or she were also the beneficial owner unless the reporting entity has reasonable grounds to suspect that that customer is not the beneficial owner.
(3)
The type of customer due diligence that must be conducted by a reporting entity is,—
(a)
in the circumstances described in section 14, at least standard customer due diligence:
(b)
in the circumstances described in section 18, at least simplified customer due diligence:
(c)
in the circumstances described in section 22, enhanced customer due diligence.
(4)
A reporting entity that is required to conduct customer due diligence in the circumstances described in sections 14, 18, and 22 is not required to obtain or verify any documents, data, or information that it has previously obtained and verified for the purposes of carrying out customer due diligence in accordance with this Act, unless there are reasonable grounds for the reporting entity to doubt the adequacy or veracity of the documents, data, or information previously obtained.
(5)
Nothing in subsection (4) affects the obligation to conduct ongoing customer due diligence in accordance with section 31.
(6)
Subsections (1) and (3) and sections 14 to 31 do not apply in relation to the provision of services by a reporting entity to a customer that, in relation to that reporting entity, are not, under section 6(4), activities to which this Act applies.
Section 11(6): inserted, on 11 August 2017, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
12 Reliance on risk assessment when establishing level of risk
When establishing the level of risk involved for the purposes of this subpart, a reporting entity must rely on its AML/CFT programme and its risk assessment undertaken in accordance with section 58.
13 Basis for verifying identity
Verification of identity must be done on—
(a)
the basis of documents, data, or information issued by a reliable and independent source; or
(b)
any other basis applying to a specified situation, customer, product, service, business relationship, or transaction prescribed by regulations.
Standard customer due diligence
14 Circumstances when standard customer due diligence applies
(1)
A reporting entity must conduct standard customer due diligence in the following circumstances:
(a)
if the reporting entity establishes a business relationship with a new customer:
(b)
if a customer seeks to conduct an occasional transaction or activity through the reporting entity:
(c)
if, in relation to an existing customer, and according to the level of risk involved,—
(i)
there has been a material change in the nature or purpose of the business relationship; and
(ii)
the reporting entity considers that it has insufficient information about the customer:
(d)
any other circumstances specified in subsection (2) or in regulations.
(2)
For the purposes of subsection (1)(d), as soon as practicable after a reporting entity becomes aware that an existing account is anonymous, the reporting entity must conduct standard customer due diligence in respect of that account.
(3)
Despite subsections (1) and (2), a real estate agent must conduct standard customer due diligence at the times, and with any other modifications, specified in regulations.
Section 14(1)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 14(1)(d): replaced, on 11 August 2017, by section 10(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 14(2): inserted, on 11 August 2017, by section 10(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 14(3): inserted, on 11 August 2017, by section 10(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
15 Standard customer due diligence: identity requirements
A reporting entity must obtain the following identity information in relation to the persons referred to in section 11(1):
(a)
the person’s full name; and
(b)
the person’s date of birth; and
(c)
if the person is not the customer, the person’s relationship to the customer; and
(d)
the person’s address or registered office; and
(e)
the person’s company identifier or registration number; and
(f)
any information prescribed by regulations.
16 Standard customer due diligence: verification of identity requirements
(1)
A reporting entity must—
(a)
take reasonable steps to satisfy itself that the information obtained under section 15 is correct; and
(b)
according to the level of risk involved, take reasonable steps to verify any beneficial owner’s identity so that the reporting entity is satisfied that it knows who the beneficial owner is; and
(c)
if a person is acting on behalf of the customer, according to the level of risk involved, take reasonable steps to verify the person’s identity and authority to act on behalf of the customer so that the reporting entity is satisfied it knows who the person is and that the person has authority to act on behalf of the customer; and
(d)
verify any other information prescribed by regulations.
(2)
Except as provided in subsection (3), a reporting entity must carry out verification of identity before establishing a business relationship or conducting an occasional transaction or activity.
(3)
Verification of identity may be completed after the business relationship has been established if—
(a)
it is essential not to interrupt normal business practice; and
(b)
money laundering and financing of terrorism risks are effectively managed through procedures of transaction limitations and account monitoring or (if the reporting entity is not a financial institution) through other appropriate risk management procedures; and
(c)
verification of identity is completed as soon as is practicable once the business relationship has been established.
Section 16(1)(a): amended, on 5 December 2013, by section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
Section 16(2): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 16(3)(b): amended, on 11 August 2017, by section 11 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
17 Standard customer due diligence: other requirements
A reporting entity must also obtain—
(a)
information on the nature and purpose of the proposed business relationship between the customer and the reporting entity; and
(b)
sufficient information to determine whether the customer should be subject to enhanced customer due diligence.
Simplified customer due diligence
18 Circumstances when simplified customer due diligence applies
(1)
A reporting entity may conduct simplified customer due diligence if—
(a)
it establishes a business relationship with one of the customers specified in subsection (2); or
(b)
one of the customers specified in subsection (2) conducts an occasional transaction or activity through the reporting entity; or
(c)
a customer conducts a transaction or obtains a product or service specified in regulations through the reporting entity.
(2)
The following are customers for the purposes of subsection (1):
(a)
a listed issuer (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013) that is the issuer of quoted voting products (within the meaning of that Act):
(b)
a government department named in Schedule 1 of the State Sector Act 1988:
(c)
a local authority, as defined in section 5(2) of the Local Government Act 2002:
(d)
the New Zealand Police:
(e)
a State enterprise (within the meaning of section 2 of the State-Owned Enterprises Act 1986) and a new State enterprise (as listed in Schedule 2 of that Act):
(f)
a body that—
(i)
corresponds to a State enterprise or a new State enterprise (as defined in paragraph (e); and
(ii)
is located in a country that has sufficient AML/CFT systems:
(g)
[Repealed](h)
a person licensed to be a supervisor or statutory supervisor under the Financial Markets Supervisors Act 2011, when the person acts for itself:
(i)
a trustee corporation, within the meaning of section 2(1) of the Administration Act 1969, when the trustee corporation acts for itself:
(j)
a Crown entity, as defined in section 7(1) of the Crown Entities Act 2004:
(k)
an organisation named in Schedule 4 of the Public Finance Act 1989:
(l)
a company named in Schedule 4A of the Public Finance Act 1989:
(m)
a government body that—
(i)
corresponds to a government department named in Schedule 1 of the State Sector Act 1988; and
(ii)
is located in an overseas jurisdiction that has sufficient AML/CFT systems:
(n)
a registered bank within the meaning of section 2(1) of the Reserve Bank of New Zealand Act 1989:
(o)
a licensed insurer within the meaning of section 6(1) of the Insurance (Prudential Supervision) Act 2010:
(p)
a company, or a subsidiary (within the meaning of section 5(1) of the Companies Act 1993) of that company,—
(i)
whose equity securities are listed in New Zealand or on an overseas stock exchange that has sufficient disclosure requirements; and
(ii)
that is located in a country that has sufficient AML/CFT systems in place:
(q)
any other entity or class of entities specified in regulations.
(3)
A reporting entity may also conduct simplified customer due diligence on a person who purports to act on behalf of a customer when—
(a)
the reporting entity already has a business relationship with the customer at the time the person acts on behalf of the customer; and
(b)
the reporting entity has conducted one of the specified types of customer due diligence on the customer in accordance with this Act and regulations (if any).
(3A)
Despite subsections (1) to (3), a real estate agent must conduct simplified customer due diligence at the times, and with any other modifications, specified in regulations.
(4)
For the avoidance of doubt, nothing in this subpart requires identification or verification of identity of a beneficial owner of a customer in respect of whom a reporting entity may conduct simplified customer due diligence.
Section 18(1)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 18(1)(c): amended, on 5 December 2013, by section 6 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
Section 18(2): replaced, on 11 August 2017, by section 12(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 18(2)(g): repealed, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).
Section 18(3A): inserted, on 11 August 2017, by section 12(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
19 Simplified customer due diligence: identity requirements
A reporting entity must obtain the following identity information in relation to a person acting on behalf of the customer:
(a)
the person’s full name; and
(b)
the person’s date of birth; and
(c)
the person’s relationship to the customer; and
(d)
any information prescribed by regulations.
20 Simplified customer due diligence: verification of identity requirements
(1)
A reporting entity must, according to the level of risk involved, verify the identity of a person acting on behalf of a customer and that person’s authority to act for the customer so that it is satisfied it knows who the person is and that the person has authority to act on behalf of the customer.
(2)
Verification of identity must be carried out before the business relationship is established or the occasional transaction or activity is conducted or the person acts on behalf of the customer.
(3)
For the purposes of verifying a person’s authority to act in the circumstances described in section 18, a reporting entity may rely on an authority provided in an application form or other document provided to the reporting entity that shows a person’s authority to act or transact on an account.
Section 20(2): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
21 Simplified customer due diligence: other requirements
In the circumstances described in section 18(1)(a), a reporting entity must also obtain information on the nature and purpose of the proposed business relationship between the customer and the reporting entity.
Enhanced customer due diligence
22 Circumstances when enhanced customer due diligence applies
(1)
A reporting entity must conduct enhanced customer due diligence in accordance with sections 23 and 24 in the following circumstances:
(a)
if the reporting entity establishes a business relationship with a customer that is—
(i)
a trust or another vehicle for holding personal assets:
(ii)
a non-resident customer from a country that has insufficient anti-money laundering and countering financing of terrorism systems or measures in place:
(iii)
a company with nominee shareholders or shares in bearer form:
(b)
if a customer seeks to conduct an occasional transaction or activity through the reporting entity and that customer is—
(i)
a trust or another vehicle for holding personal assets:
(ii)
a non-resident customer from a country that has insufficient anti-money laundering and countering financing of terrorism systems or measures in place:
(iii)
a company with nominee shareholders or shares in bearer form:
(c)
if a customer seeks to conduct, through the reporting entity, a complex, unusually large transaction or unusual pattern of transactions that have no apparent or visible economic or lawful purpose:
(d)
when a reporting entity considers that the level of risk involved is such that enhanced due diligence should apply to a particular situation:
(e)
any other circumstances specified in section 22A or regulations.
(2)
A reporting entity must conduct enhanced customer due diligence in accordance with section 26 if—
(a)
it establishes a business relationship with a customer who it has determined is a politically exposed person; or
(b)
a customer who it has determined is a politically exposed person seeks to conduct an occasional transaction or activity through the reporting entity.
(3)
A reporting entity must conduct enhanced customer due diligence in accordance with sections 27 and 28 if it is an ordering institution, an intermediary institution, or a beneficiary institution in relation to a wire transfer.
(4)
A reporting entity must conduct enhanced customer due diligence in accordance with section 29 if it has, or proposes to have, a correspondent banking relationship.
(5)
A reporting entity must conduct enhanced due diligence in accordance with section 30 if—
(a)
it establishes a business relationship with a customer that involves new or developing technologies, or new or developing products, that might favour anonymity; or
(b)
a customer seeks to conduct an occasional transaction or activity through the reporting entity that involves new or developing technologies, or new or developing products, that might favour anonymity.
(6)
Despite subsections (1) to (5), a real estate agent must conduct enhanced customer due diligence at the times, in the circumstances, and with any other modifications specified in regulations.
Section 22(1)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 22(1)(e): amended, on 11 August 2017, by section 13(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 22(2)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 22(5)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 22(6): inserted, on 11 August 2017, by section 13(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
22A Enhanced customer due diligence required for certain activities requiring suspicious activities report
(1)
This section applies to an activity—
(a)
that the reporting entity concerned (other than a high-value dealer) is required to report to the Commissioner under section 40; and
(b)
that is not otherwise exempt from the customer due diligence requirements or from all the requirements of the Act; and
(c)
that is conducted, or sought to be conducted,—
(i)
by an existing customer; or
(ii)
by a customer engaging in an occasional transaction or activity.
(2)
For the purposes of section 22(1)(e), as soon as practicable after a reporting entity becomes aware that the reporting entity must report the suspicious activity under section 40, a circumstance occurs in which the reporting entity must conduct enhanced customer due diligence in respect of that activity.
Section 22A: inserted, on 11 August 2017, by section 14 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
23 Enhanced customer due diligence: identity requirements
(1)
A reporting entity must, in relation to a person referred to in section 11(1), obtain the information required under section 15 and the following additional information:
(a)
information relating to the source of the funds or the wealth of the customer; and
(b)
the additional information referred to in subsection (2) and any additional information prescribed by regulations.
(2)
For the purposes of subsection (1)(b), a reporting entity must obtain,—
(a)
in the case of a trust other than a trust to which paragraph (b) applies, the name and the date of birth of each beneficiary of the trust:
(b)
in the case of a customer that is a discretionary trust or a charitable trust or a trust that has more than 10 beneficiaries, a description of—
(i)
each class or type of beneficiary:
(ii)
if the trust is a charitable trust, the objects of the trust.
Section 23(1)(b): replaced, on 11 August 2017, by section 15(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 23(2): inserted, on 11 August 2017, by section 15(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
24 Enhanced customer due diligence: verification of identity requirements
(1)
A reporting entity must—
(a)
conduct the verification of identity requirements for standard customer due diligence set out in section 16; and
(b)
according to the level of risk involved, take reasonable steps to verify the information obtained under section 23(1)(a); and
(c)
verify any other information prescribed by regulations.
(2)
Except as provided in subsection (3), a reporting entity must carry out verification of identity before establishing a business relationship or conducting an occasional transaction or activity.
(3)
Verification of identity may be completed after the business relationship has been established if—
(a)
it is essential not to interrupt normal business practice; and
(b)
money laundering and financing of terrorism risks are effectively managed through procedures of transaction limitations and account monitoring or (if the reporting entity is not a financial institution) through other appropriate risk management procedures; and
(c)
verification of identity is completed as soon as is practicable once the business relationship has been established.
Section 24(2): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 24(3)(b): amended, on 11 August 2017, by section 16 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
25 Enhanced customer due diligence: other requirements
In the circumstances described in section 22(1)(a), 22(2)(a), and 22(5)(a), a reporting entity must also obtain information on the nature and purpose of the proposed business relationship between the customer and the reporting entity.
26 Politically exposed person
(1)
The reporting entity must, as soon as practicable after establishing a business relationship or conducting an occasional transaction or activity, take reasonable steps to determine whether the customer or any beneficial owner is a politically exposed person.
(2)
If a reporting entity determines that a customer or beneficial owner with whom it has established a business relationship is a politically exposed person, then—
(a)
the reporting entity must have senior management approval for continuing the business relationship; and
(b)
the reporting entity must obtain information about the source of wealth or funds of the customer or beneficial owner and take reasonable steps to verify the source of that wealth or those funds.
(3)
If a reporting entity determines that a customer or beneficial owner with whom it has conducted an occasional transaction or activity is a politically exposed person, then the reporting entity must, as soon as practicable after conducting that transaction or other activity, take reasonable steps to obtain information about the source of wealth or funds of the customer or beneficial owner and verify the source of that wealth or those funds.
Section 26(1): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 26(3): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
27 Wire transfers: identity requirements
(1)
A reporting entity that is an ordering institution must identify the originator of a wire transfer that is equal to or above the applicable threshold value by obtaining the following information:
(a)
the originator’s full name; and
(b)
the originator’s account number or other identifying information that may be prescribed and allows the transaction to be traced back to the originator; and
(c)
one of the following:
(i)
the originator’s address:
(ii)
the originator’s national identity number:
(iii)
the originator’s customer identification number:
(iv)
the originator’s place and date of birth; and
(d)
any information prescribed by section 27A or regulations.
(2)
However, if the wire transfer is a domestic wire transfer, a reporting entity that is an ordering institution may identify the originator by obtaining the originator’s account number or other identifying information that may be prescribed and allows the transaction to be traced back to the originator if the reporting entity that is the ordering institution is able to provide the information specified in subsection (1)(a), (c), and (d) within 3 working days of a request being made by the beneficiary institution.
(3)
Regulations may be made under section 154(1)(c) exempting the reporting entity from the obligation to obtain some or all of the information set out in subsection (1) in relation to a specified transfer or transaction.
(4)
The information obtained by the reporting entity (the ordering institution under subsection (1) or (2), as the case may be) must accompany the wire transfer.
(5)
A reporting entity that is a beneficiary institution must—
(a)
use effective risk-based procedures for handling wire transfers that are not accompanied by all the information specified in subsection (1); and
(b)
consider whether the wire transfers constitute a suspicious activity.
(6)
Any information about the originator obtained by a reporting entity that is an intermediary institution must be provided by that reporting entity to the beneficiary institution as soon as practicable.
(7)
For the purposes of this section, a domestic wire transfer is a wire transfer where the ordering institution, the intermediary institution, and the beneficiary institution are all in New Zealand.
Section 27(1): amended, on 11 August 2017, by section 17(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 27(1)(d): amended, on 11 August 2017, by section 17(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 27(5)(b): amended, on 11 August 2017, by section 17(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 27(6): replaced, on 5 December 2013, by section 7 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
27A Other identifying information prescribed in relation to wire transfers
(1)
Information that gives the name of the beneficiary of a wire transfer and the account number of that beneficiary or any unique transaction reference that allows the transaction to be traced is prescribed for the purposes of section 27(1)(d).
(2)
In the case of a domestic wire transfer, any information that enables the transaction itself to be identified and traced to the originator is prescribed to be other identifying information for the purposes of section 27(2).
Section 27A: inserted, on 11 August 2017, by section 18 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
28 Wire transfers: verification of identity requirements
(1)
The ordering institution must, according to the level of risk involved,—
(a)
verify the originator’s identity so that the reporting entity is satisfied that the information obtained under section 27 is correct; and
(b)
verify any other information prescribed by regulations.
(2)
Verification of the originator’s identity must be carried out before the wire transfer is ordered.
Section 28(1)(a): replaced, on 5 December 2013, by section 8 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
29 Correspondent banking relationships
(1)
A financial institution (the correspondent) that has, or proposes to have, a correspondent banking relationship with a respondent financial institution (the respondent) must, according to the level of risk involved, conduct enhanced customer due diligence as set out in subsection (2) in relation to correspondent accounts that are used, or are proposed to be used, for payments to, or receipts from, foreign financial institutions.
(2)
The correspondent must—
(a)
gather enough information about the respondent to understand fully the nature of the respondent’s business; and
(b)
determine from publicly available information the reputation of the respondent and whether and to what extent the respondent is supervised for AML/CFT purposes, including whether the respondent has been subject to a money laundering or financing of terrorism investigation or regulatory action; and
(c)
assess the respondent’s anti-money laundering and countering financing of terrorism controls to ascertain that those controls are adequate and effective; and
(d)
have approval from its senior management before establishing a new correspondent banking relationship; and
(e)
document the respective AML/CFT responsibilities of the correspondent and the respondent; and
(f)
be satisfied that, in respect of those of the respondent’s customers who have direct access to accounts of the correspondent, the respondent―
(i)
has verified the identity of, and conducts ongoing monitoring in respect of, those customers; and
(ii)
is able to provide to the correspondent, on request, the documents, data, or information obtained when conducting the relevant customer due diligence and ongoing customer due diligence; and
(g)
meet any other requirements prescribed by regulations and that apply to correspondent banking relationships.
(3)
For the purposes of this Act or regulations, a correspondent banking relationship means a relationship that involves the provision of banking services by a financial institution (the correspondent) to another financial institution (the respondent) if—
(a)
the correspondent carries on an activity or business at or through a permanent establishment of the correspondent in a particular country; and
(b)
the respondent carries on an activity or business at or through a permanent establishment of the respondent in another country; and
(c)
the correspondent banking relationship relates, in whole or in part, to those permanent establishments; and
(d)
the relationship is not of a kind specified in regulations; and
(e)
the banking services are not of a kind specified in regulations.
Section 29(3): amended, on 11 August 2017, by section 19 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
30 New or developing technologies, or products, that might favour anonymity
Before a reporting entity establishes a business relationship or conducts an occasional transaction or activity that involves new or developing technologies, or new or developing products, that might favour anonymity, the reporting entity must, in addition to the requirements in sections 15 and 16,—
(a)
take any additional measures that may be needed to mitigate and manage the risk of new or developing technologies, or new or developing products, that might favour anonymity from being used in the commission of a money laundering offence or for the financing of terrorism; and
(b)
meet any other requirements prescribed by regulations and that apply to the particular technology or product.
Section 30: amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Ongoing customer due diligence and account monitoring
31 Ongoing customer due diligence and account monitoring
(1)
This section applies to a business relationship between a reporting entity and a customer.
(2)
A reporting entity must conduct ongoing customer due diligence and undertake account monitoring in order to—
(a)
ensure that the business relationship and the transactions relating to that business relationship are consistent with the reporting entity’s knowledge about the customer and the customer’s business and risk profile; and
(b)
identify any grounds for reporting a suspicious activity under paragraph (b) of the definition of that term in section 39A.
(3)
When conducting ongoing customer due diligence and undertaking account monitoring, the reporting entity must have regard to—
(a)
the type of customer due diligence conducted when the business relationship with the customer was established; and
(b)
the level of risk involved.
(4)
When conducting ongoing customer due diligence and undertaking account monitoring, a reporting entity must do at least the following:
(a)
regularly review the customer’s account activity and transaction behaviour; and
(b)
(c)
anything prescribed by regulations.
Section 31(2)(b): amended, on 11 August 2017, by section 20 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Reliance on third parties
32 Reliance on member of designated business group
(1)
A reporting entity (member A) that is a member of a designated business group may—
(a)
rely on another member of the group (member B) to conduct any customer due diligence procedures required for customer due diligence under this Act or regulations as long as—
(i)
any identity information is given to member A by member B before member A establishes a business relationship or an occasional transaction or activity is conducted; and
(ii)
any verification information is given to member A by member B as soon as practicable on request by the reporting entity, but within 5 working days of the request, after the business relationship is established or the occasional transaction or activity is conducted:
(b)
adopt that part of an AML/CFT programme of another member of the group that relates to record keeping, account monitoring, ongoing customer due diligence, and annual reporting and share and use the procedures, policies, and controls relating to those parts of the programme subject to any conditions prescribed by regulations:
(c)
use another member of the group’s risk assessment if that risk assessment is relevant to member A’s business:
(d)
make a suspicious activity or prescribed transaction report on behalf of any other member or all members of the designated business group.
(1A)
A reporting entity (member A) that is a member of a designated business group may rely on another member of the group (member B) to make prescribed transaction reports under this Act or regulations.
(2)
Despite subsection (1), a reporting entity, and not the member of the designated business group relied on by the reporting entity, is responsible for ensuring that it is complying with this Act and regulations.
(3)
An AML/CFT supervisor for a reporting entity that is part of a designated business group may require the reporting entity to undertake its own risk assessment or develop its own AML/CFT programme if the AML/CFT supervisor is of the view that the risk assessment or AML/CFT programme being, or proposed to be, relied on by the reporting entity is not appropriate for that entity.
(4)
This section is subject to section 36, which relates to the protection of personal information.
Compare: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 s 36(4) (Aust)
Section 32(1)(a)(i): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 32(1)(a)(ii): amended, on 11 August 2017, by section 21(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 32(1)(a)(ii): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 32(1)(d): amended, on 11 August 2017, by section 21(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 32(1A): inserted, on 11 August 2017, by section 21(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
33 Reliance on other reporting entities or persons in another country
(1)
Subject to the conditions in subsection (2), a reporting entity may rely on another person (who is not an agent) to conduct the customer due diligence procedures required for customer due diligence under this Act or regulations.
(2)
The conditions are that—
(a)
the person being relied on is either—
(i)
a reporting entity; or
(ii)
a person who is resident in a country with sufficient anti-money laundering and countering financing of terrorism systems and measures in place and who is supervised or regulated for AML/CFT purposes; and
(b)
the person has a business relationship with the customer concerned; and
(c)
the person has conducted relevant customer due diligence procedures to at least the standard required by this Act and regulations and has provided to the reporting entity—
(i)
relevant identity information before the reporting entity establishes a business relationship or an occasional transaction or activity is conducted; and
(ii)
relevant verification information as soon as practicable on request by the reporting entity, but within 5 working days of the request; and
(d)
the person consents to conducting the customer due diligence procedures for the reporting entity and to providing all relevant information to the reporting entity; and
(e)
any other conditions prescribed by regulations are complied with.
(3)
Despite subsection (1), a reporting entity relying on a third party to conduct the customer due diligence procedure, and not the person carrying out the customer due diligence procedure, is responsible for ensuring that customer due diligence is carried out in accordance with this Act.
(3A)
However, a reporting entity relying on a third party to conduct the customer due diligence procedure is not responsible for ensuring that customer due diligence is carried out in accordance with this Act if the following conditions are met:
(a)
the reporting entity is acting in good faith when relying on a third party; and
(b)
the reporting entity has reasonable cause to believe the reporting entity that is relied on has conducted relevant customer due diligence procedures to at least the standard required by this Act and regulations; and
(c)
the reporting entity being relied on is an approved entity or is within an approved class of entities; and
(d)
the conditions (if any) prescribed by regulations are complied with.
Section 33(2)(c)(i): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 33(2)(c)(ii): amended, on 11 August 2017, by section 22(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 33(3A): inserted, on 11 August 2017, by section 22(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
34 Reliance on agents
Subject to any conditions that may be prescribed by regulations, a reporting entity may authorise a person to be its agent and rely on that agent to conduct the customer due diligence procedures and obtain any information required for customer due diligence under this Act or regulations.
35 Use of information obtained from third party conducting customer due diligence
Information obtained by a third party conducting customer due diligence under sections 32 to 34 for a reporting entity may only be used by that third party for the purpose of complying with this Act and regulations.
36 Protection of personal information and designated business groups
(1)
This section applies to personal information that is either—
(a)
identity or verification information received for the purposes of section 32(1)(a); or
(b)
information received for the purposes of section 32(1)(b).
(2)
Any information supplied by any member of a designated business group to another member of that group must be subject to privacy protections at least equivalent to those set out in privacy principles 5 to 11 in section 6 of the Privacy Act 1993.
(3)
Each member of the designated business group must agree, in writing, to comply with privacy principles 5 to 11 in section 6 of the Privacy Act 1993 or their equivalent if the member is resident overseas.
(4)
The entity that provides information to another member of its designated business group remains responsible for the use or disclosure of that information.
(5)
A reporting entity may use or disclose information to which this section applies only as follows:
(a)
it may use identity and verification information received for the purposes of section 32(1)(a) in a suspicious activity report:
(b)
it may disclose information for the purposes of section 32(1)(b) to another member of the designated business group unless such disclosure is likely to result in a suspicious activity report being filed in an overseas jurisdiction by the member to whom the information is disclosed.
Section 36(5)(a): amended, on 11 August 2017, by section 23(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 36(5)(b): amended, on 11 August 2017, by section 23(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Prohibitions
37 Prohibitions if customer due diligence not conducted
(1)
If, in relation to a customer, a reporting entity is unable to conduct customer due diligence in accordance with this subpart, the reporting entity—
(a)
must not establish a business relationship with the customer; and
(b)
must terminate any existing business relationship with the customer; and
(c)
must not carry out an occasional transaction or activity with or for the customer; and
(d)
must consider whether to make a suspicious activity report; and
(e)
may disclose the possibility of making a suspicious activity report only to a person referred to in section 46(2).
(2)
A reporting entity is not prohibited by subsection (1)(a) or (b) from establishing or continuing a business relationship with a customer in respect of an activity that is not specified in section 6(4) in relation to that reporting entity.
Section 37(1)(c): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 37(1)(d): amended, on 11 August 2017, by section 24(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 37(1)(e): amended, on 11 August 2017, by section 24(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 37(2): inserted, on 11 August 2017, by section 24(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
38 Prohibition on false customer names and customer anonymity
(1)
A reporting entity must not,—
(a)
knowingly or recklessly, set up a facility for a customer on the basis of customer anonymity:
(b)
without lawful justification or reasonable excuse, set up a facility for a customer under a false customer name.
(2)
Subsection (1) does not apply to a facility—
(a)
that has a number or other identifier allocated to it and the customer and any person who is authorised to act on behalf of the customer in respect of the facility has had their identity verified in accordance with the relevant customer due diligence requirements; or
(b)
that has been set up for the Commissioner or for the New Zealand Security Intelligence Service for law enforcement purposes.
Section 38(2)(a): amended, on 12 December 2012, by section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2012 (2012 No 98).
39 Prohibition on establishing or continuing business relationship involving shell bank
(1)
A reporting entity must not establish or continue a business relationship with, or allow an occasional transaction or activity to be conducted through it by,—
(a)
a shell bank; or
(b)
a financial institution that has a correspondent banking relationship with a shell bank.
(2)
For the purposes of subsection (1), a shell bank is a corporation that—
(a)
is incorporated in a foreign country; and
(b)
is authorised to carry on banking business in its country of incorporation; and
(c)
does not have a physical presence in its country of incorporation; and
(d)
is not an affiliate of another corporation that—
(i)
is incorporated in a particular country; and
(ii)
is authorised to carry on banking business in its country of incorporation; and
(iii)
is sufficiently supervised and monitored in carrying on its banking business; and
(iv)
has a physical presence in its country of incorporation.
(3)
For the purposes of paragraph (d) of the definition of shell bank in subsection (2), a corporation is affiliated with another corporation only if—
(a)
the corporation is a subsidiary of the other corporation; or
(b)
both corporations are under common effective control; or
(c)
both corporations are declared to be affiliated in accordance with regulations (if any).
(4)
For the purposes of the definition of shell bank in subsection (2), a corporation has a physical presence in a country if, and only if,—
(a)
the corporation carries on banking business at a place in that country; and
(b)
banking operations of the corporation are managed and conducted from that place.
Compare: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ss 15, 95 (Aust)
Section 39(1): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Subpart 2—Suspicious activity reports
Subpart 2: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
39A Interpretation
For the purposes of this subpart,—
service—
(a)
means an activity that is carried out by a reporting entity; but
(b)
does not include an activity unless section 6(4) applies this Act to the reporting entity in relation to the activity
suspicious activity means an activity undertaken in circumstances—
(a)
in which—
(i)
a person conducts or seeks to conduct a transaction through a reporting entity; or
(ii)
a reporting entity provides or proposes to provide a service to a person; or
(iii)
a person requests a reporting entity to provide a service or makes an inquiry to the reporting entity in relation to a service; and
(b)
where the reporting entity has reasonable grounds to suspect that the transaction or proposed transaction, the service or proposed service, or the inquiry, as the case may be, is or may be relevant to—
(i)
the investigation or prosecution of any person for a money laundering offence; or
(ii)
the enforcement of the Misuse of Drugs Act 1975; or
(iii)
the enforcement of the Terrorism Suppression Act 2002; or
(iv)
the enforcement of the Proceeds of Crime Act 1991 or the Criminal Proceeds (Recovery) Act 2009; or
(v)
the investigation or prosecution of an offence (within the meaning of section 243(1) of the Crimes Act 1961).
Section 39A: inserted, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
40 Reporting entities to report suspicious activities
(1)
Subsections (3) and (4) apply to reporting entities other than high-value dealers.
(2)
Subsection (5) applies to high-value dealers.
(3)
If this subsection applies, the reporting entity must, as soon as practicable but no later than 3 working days after forming its suspicion, report the activity, or suspicious activity, to the Commissioner in accordance with section 41.
(4)
Nothing in subsection (3) requires any person to disclose any information that the person believes on reasonable grounds is a privileged communication.
(5)
A high-value dealer may report a suspicious activity to the Commissioner.
Section 40: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
41 Nature of suspicious activity report
(1)
Except as provided in subsection (2), a report under section 40 must—
(a)
be in the prescribed form (if any); and
(b)
contain the details prescribed by regulations; and
(c)
contain a statement of the grounds on which the reporting entity holds the suspicions referred to in paragraph (b) of the definition of suspicious activity in section 39A; and
(d)
be signed by a person authorised by the reporting entity to sign suspicious activity reports (unless the report is forwarded by electronic means); and
(e)
be forwarded, in writing, to the Commissioner—
(i)
by way of secure electronic transmission by a means specified or provided by the Commissioner for that purpose; or
(ii)
by another means (including, without limitation, by way of transmission by fax or email) that may be agreed from time to time between the Commissioner and the reporting entity concerned.
(2)
If the urgency of the situation requires, a suspicious activity report may be made orally to any Police employee authorised for the purpose by the Commissioner, but in any such case the reporting entity must, as soon as practicable but no later than 3 working days after forming its suspicions, forward to the Commissioner a suspicious activity report that complies with the requirements in subsection (1).
(3)
The Commissioner may confer the authority to receive a suspicious activity report under subsection (2) on—
(a)
any specified Police employee; or
(b)
Police employees of any specified rank or class; or
(c)
any Police employee or Police employees for the time being holding any specified office or specified class of offices.
Section 41: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
42 Privileged communication defined
(1)
A communication is a privileged communication if—
(a)
it is a confidential communication (oral or written) (including any information or opinion)—
(i)
that passes between—
(A)
a lawyer and another lawyer in their professional capacity; or
(B)
a lawyer in his or her professional capacity and his or her client; or
(C)
any person described in subsubparagraph (A) or (B) and the agent of the other person described in that subsubparagraph (or between the agents of both the persons described) either directly or indirectly; and
(ii)
that is made or brought into existence for the purpose of obtaining or giving legal advice or assistance; or
(b)
it is a communication (including any information or opinion) that—
(i)
is subject to the general law governing legal professional privilege; or
(ii)
is specified in section 53, 54, 55, 56, or 57 of the Evidence Act 2006.
(2)
However, a communication is not a privileged communication—
(a)
if there is a prima facie case that the communication or information is made or received, or compiled or prepared,—
(i)
for a dishonest purpose; or
(ii)
to enable or aid the commission of an offence; or
(b)
if, where the information wholly or partly consists of, or relates to, the receipts, payments, income, expenditure, or financial transactions of any specified person, it is contained in (or comprises the whole or a part of) any book, account, statement, or other record prepared or kept by the lawyer in connection with a trust account of the lawyer within the meaning of section 6 of the Lawyers and Conveyancers Act 2006.
(3)
For the purposes of this section, references to a lawyer include a firm in which the lawyer is a partner or is held out to be a partner.
Section 42: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
43 Auditors may report suspicious activities
(1)
Despite any other enactment or any rule of law, this section applies to a person who, in the course of carrying out the duties of that person’s occupation as an auditor, has reasonable grounds to suspect, in relation to any activity, that the activity is relevant to—
(a)
the investigation or prosecution of any person for a money laundering offence; or
(b)
the enforcement of the Misuse of Drugs Act 1975; or
(c)
the enforcement of the Terrorism Suppression Act 2002; or
(d)
the enforcement of the Proceeds of Crime Act 1991 or the Criminal Proceeds (Recovery) Act 2009; or
(e)
the investigation or prosecution of an offence (within the meaning of section 243(1) of the Crimes Act 1961).
(2)
A person may report an activity referred to in subsection (1) to the Commissioner.
Section 43: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
44 Protection of persons reporting suspicious activities
(1)
Subsection (2) applies to a person who—
(a)
discloses or supplies any information in any suspicious activity report; or
(b)
supplies any information in connection with any suspicious activity report, whether at the time the report is made or afterwards.
(2)
No civil, criminal, or disciplinary proceedings lie against a person to whom subsection (1) applies—
(a)
in respect of the disclosure or supply, or the manner of the disclosure or supply, by that person of the information referred to in that subsection; or
(b)
for any consequences that follow from the disclosure or supply of that information.
(3)
If any information is reported under section 43 to any Police employee by any person, no civil, criminal, or disciplinary proceedings lie against that person—
(a)
in respect of the disclosure or supply, or the manner of the disclosure or supply, of that information by that person; or
(b)
for any consequences that follow from the disclosure or supply of that information.
(4)
However, subsections (2) and (3) do not apply—
(a)
if the information was disclosed or supplied in bad faith; or
(b)
if, in the case of information disclosed or supplied by a lawyer, there were reasonable grounds to believe that the information was a privileged communication but the lawyer disclosed it or supplied it despite the existence of those grounds.
(5)
Nothing in this section applies in respect of proceedings for an offence under any of sections 92 to 97.
Section 44: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
45 Immunity from liability for disclosure of information relating to money laundering transactions
(1)
This section applies if—
(a)
a person does any act that would constitute, or that the person believes would constitute, an offence against section 243(2) or (3) of the Crimes Act 1961; and
(b)
in respect of the doing of that act, that person would have, by virtue of section 244 of the Crimes Act 1961, a defence to a charge under section 243(2) or (3) of that Act; and
(c)
that person discloses to any Police employee any information relating to a money laundering transaction (within the meaning of section 243(4) of the Crimes Act 1961), being a money laundering transaction that constitutes (in whole or in part), or is connected with or related to, the act referred to in paragraph (a); and
(d)
that information is so disclosed, in good faith, for the purpose of, or in connection with, the enforcement or intended enforcement of any enactment or provision referred to in section 244(a) of the Crimes Act 1961; and
(e)
that person is otherwise under any obligation (whether arising by virtue of any enactment or any rule of law or any other instrument) to maintain secrecy in relation to, or not to disclose, that information.
(2)
If this section applies, then, without limiting section 44 and despite the fact that the disclosure would otherwise constitute a breach of that obligation of secrecy or non-disclosure, the disclosure by that person, to that Police employee, of that information is not a breach of that obligation of secrecy or non-disclosure or (where applicable) of any enactment by which that obligation is imposed.
Section 45: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
46 Disclosure of information relating to suspicious activity reports
(1)
This section and section 47 apply in respect of the following information:
(a)
any suspicious activity report:
(b)
any information the disclosure of which will identify, or is reasonably likely to identify, any person—
(i)
as a person who, in his or her capacity as an officer or employee of a reporting entity, has handled a transaction in respect of which a suspicious activity report was made; or
(ii)
as a person who has prepared a suspicious activity report; or
(iii)
as a person who has made a suspicious activity report:
(c)
any information that discloses, or is reasonably likely to disclose, the existence of a suspicious activity report.
(2)
A reporting entity must not disclose information to which this section relates to any person except—
(a)
a Police employee who is authorised by the Commissioner to receive the information; or
(b)
the reporting entity’s AML/CFT supervisor; or
(c)
an officer or employee of the reporting entity, for any purpose connected with the performance of that person’s duties; or
(d)
a lawyer, for the purpose of obtaining legal advice or representation in relation to the matter; or
(e)
another member of a designated business group of which the reporting entity is a member, to the extent necessary for the reporting entity to decide whether to make a suspicious activity report.
(3)
A Police employee may disclose information to which this section applies only for law enforcement purposes.
(4)
An AML/CFT supervisor may disclose information to which this section applies only to the Police for law enforcement purposes.
(5)
A person to whom a function or power has been delegated under section 134 may disclose information to which this section applies only to the AML/CFT supervisor that made the delegation.
(6)
A person (person A) referred to in subsection (2)(c) to whom disclosure of any information to which that subsection applies has been made must not disclose that information except to another person of the kind referred to in that subsection for the purpose of—
(a)
the performance of person A’s duties; or
(b)
obtaining legal advice or representation in relation to the matter.
(7)
A person referred to in subsection (2)(d) to whom disclosure of any information to which that subsection applies has been made must not disclose that information except to a person of the kind referred to in that subsection for the purpose of giving legal advice or making representations in relation to the matter.
(8)
Any other person who has information to which this section applies may disclose that information only to the Police for law enforcement purposes.
Section 46: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
47 Disclosure of information in proceedings
(1)
No person may disclose, in any judicial proceeding (within the meaning of section 108(4) of the Crimes Act 1961), any information contained in a suspicious activity report unless the Judge or, as the case requires, the person presiding at the proceeding is satisfied that the disclosure of the information is necessary in the interests of justice.
(2)
Nothing in this section prohibits the disclosure of any information for the purposes of the prosecution of any offence against section 93 or 94.
Section 47: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
48 Disclosure of personal information relating to employees or senior managers
An AML/CFT supervisor that has, in the performance and exercise of its functions and powers under this Act, obtained personal information about employees or senior managers may disclose that information to another government agency for the following purposes if the AML/CFT supervisor is satisfied that the agency has a proper interest in receiving the information:
(a)
law enforcement purposes:
(b)
the detection, investigation, and prosecution of any offence under the following Acts:
(i)
the Companies Act 1993:
(ii)
(iv)
the Gambling Act 2003:
(v)
(vi)
Section 48: replaced, on 11 August 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Subpart 2A—Prescribed transaction reports
Subpart 2A: inserted, on 1 July 2017, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
48A Reporting entities to report certain prescribed transactions
(1)
Despite any other enactment or rule of law, but subject to any regulations made under section 154, if a person conducts a prescribed transaction through a reporting entity, the reporting entity must (as soon as practicable, but not later than 10 working days after the transaction) report the transaction to the Commissioner in accordance with section 48B.
(2)
Nothing in subsection (1) requires any lawyer to disclose any privileged communication (as defined in section 42).
Section 48A: inserted, on 1 July 2017, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
48B Prescribed transaction reports
(1)
Except as provided in subsection (2), a report made under section 48A(1) must—
(a)
be in the form or forms (if any) prescribed by regulations made under section 153(c); and
(b)
contain the following information:
(i)
a description of the nature of the transaction:
(ii)
the amount of the transaction and the currency in which it was denominated:
(iii)
the date on which the transaction was conducted:
(iv)
the parties to the transaction:
(v)
if applicable, the name of the facility through which the transaction was conducted, and any other facilities (whether or not provided by the reporting entity) directly involved in the transaction:
(vi)
any other information prescribed by regulations made under section 153(c); and
(c)
be signed by a person authorised by the reporting entity to sign prescribed transaction reports (unless the report is provided by electronic means other than an electronic copy of the signed report); and
(d)
be forwarded, in writing, to the Commissioner—
(i)
by way of secure electronic transmission specified or provided by the Commissioner for this purpose; or
(ii)
by another means (including, without limitation, by way of transmission by post, fax, or email) that may be agreed from time to time between the Commissioner and the reporting entity concerned.
(2)
The Commissioner may confer the authority to receive a prescribed transaction report under subsection (1) on—
(a)
any specified Police employee; or
(b)
Police employees of any specified rank or class; or
(c)
any Police employee or Police employees for the time being holding any specified office or specified class of offices.
Section 48B: inserted, on 1 July 2017, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
48C Sections 43 to 48 apply to prescribed transactions
Sections 43 to 48 apply, with all necessary modifications, to prescribed transactions.
Section 48C: inserted, on 1 July 2017, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Subpart 3—Record keeping
49 Obligation to keep transaction records
(1)
In relation to every transaction that is conducted through a reporting entity, the reporting entity must keep those records that are reasonably necessary to enable that transaction to be readily reconstructed at any time.
(2)
Without limiting subsection (1), records must contain the following information:
(a)
the nature of the transaction:
(b)
the amount of the transaction and the currency in which it was denominated:
(c)
the date on which the transaction was conducted:
(d)
the parties to the transaction:
(e)
if applicable, the facility through which the transaction was conducted, and any other facilities (whether or not provided by the reporting entity) directly involved in the transaction:
(f)
the name of the officer or employee or agent of the reporting entity who handled the transaction, if that officer, employee, or agent—
(i)
has face-to-face dealings in respect of the transaction with any of the parties to the transaction; and
(ii)
has formed a suspicion (of the kind referred to in section 40(1)(b)) about the transaction:
(g)
any other information prescribed by regulations.
(3)
A reporting entity must retain the records kept by that reporting entity, in accordance with this section, in relation to a transaction for—
(a)
a period of at least 5 years after the completion of that transaction; or
(b)
any longer period that the AML/CFT supervisor for the reporting entity, or the Commissioner, specifies.
Compare: 1996 No 9 s 29
49A Obligation to keep reports of suspicious activities
(1)
If a reporting entity reports a suspicious activity to the Commissioner, the reporting entity must keep a copy of that report.
(2)
The reporting entity must keep a copy of the report for—
(a)
a period of at least 5 years after the report is made; or
(b)
any longer period that the AML/CFT supervisor for the reporting entity, or the Commissioner, specifies.
Section 49A: inserted, on 11 August 2017, by section 26 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
50 Obligation to keep identity and verification records
(1)
In respect of each case in which a reporting entity is required, under subpart 1 of this Part, to identify and verify the identity of a person, the reporting entity must keep those records that are reasonably necessary to enable the nature of the evidence used for the purposes of that identification and verification to be readily identified at any time.
(2)
Without limiting subsection (1), those records may comprise—
(a)
a copy of the evidence so used; or
(b)
if it is not practicable to retain that evidence, any information as is reasonably necessary to enable that evidence to be obtained.
(3)
A reporting entity must retain the records kept by that reporting entity for,—
(a)
in the case of records relating to the identity and verification of the identity of a person in relation to establishing a business relationship, a period of at least 5 years after the end of that business relationship; or
(b)
in the case of records relating to the identity and verification of the identity of a person in relation to conducting an occasional transaction or activity, a period of at least 5 years after the completion of that occasional transaction or activity; or
(c)
in the case of records relating to the identity and verification of the identity of an originator in relation to a wire transfer,—
(i)
if the wire transfer is conducted by a customer with whom the reporting entity has a business relationship, a period of at least 5 years after the end of that business relationship; or
(ii)
if the wire transfer is an occasional transaction or activity, a period of at least 5 years after the completion of the wire transfer.
Compare: 1996 No 9 s 30
Section 50(3)(b): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 50(3)(c)(ii): amended, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
51 Obligation to keep other records
(1)
A reporting entity must keep the following records in addition to the records referred to in sections 49 and 50:
(a)
records that are relevant to the establishment of the business relationship; and
(b)
records relating to risk assessments, AML/CFT programmes, and audits; and
(c)
any other records (for example, account files, business correspondence, and written findings) relating to, and obtained during the course of, a business relationship that are reasonably necessary to establish the nature and purpose of, and activities relating to, the business relationship; and
(d)
any other records prescribed by regulations made under section 153.
(2)
The records relating to risk assessment, AML/CFT programmes, and audits must be kept for a period of at least 5 years after the date on which they ceased to be used on a regular basis.
(3)
A reporting entity must make records relating to risk assessments, AML/CFT programmes, and audits available to its AML/CFT supervisor on request.
Compare: 1996 No 9 s 31
Section 51(1)(c): amended, on 11 August 2017, by section 27(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 51(1)(d): inserted, on 11 August 2017, by section 27(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 51(2): replaced, on 11 August 2017, by section 27(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
52 How records to be kept
Records required by this subpart to be kept by a reporting entity must—
(a)
be kept either in written form in the English language, or so as to enable the records to be readily accessible and readily convertible into written form in the English language; and
(b)
be kept in the manner prescribed by regulations (if any).
Compare: 1996 No 9 s 32
53 When records need not be kept
(1)
Nothing in this subpart requires the retention of any records kept by a reporting entity that has been liquidated and finally dissolved except as provided in subsection (2).
(2)
The High Court may, in relation to a reporting entity that is being or has been liquidated, make an order requiring that any or all of the records referred to in sections 50 and 51 be kept for any period it thinks fit.
Compare: 1996 No 9 s 33
54 Destruction of records
(1)
Subject to subsection (2), a reporting entity must take all practicable steps to ensure that every record retained by that reporting entity under this subpart, and every copy of that record, is destroyed as soon as practicable after the expiry of the period for which the reporting entity is required to retain that record.
(2)
Nothing in this section requires the destruction of any record, or any copy of any record, in any case where there is a lawful reason for retaining that record.
(3)
Without limiting subsection (2), there is a lawful reason for retaining a record if the retention of that record is necessary—
(a)
in order to comply with the requirements of any other enactment; or
(b)
to enable a reporting entity to carry on its business; or
(c)
for the purposes of the detection, investigation, or prosecution of any offence.
Compare: 1996 No 9 s 34
55 Other laws not affected
Nothing in this subpart limits or affects any other enactment that requires any reporting entity to keep or retain a record.
Compare: 1996 No 9 s 35
Subpart 4—Compliance with AML/CFT requirements
56 Reporting entity must have AML/CFT programme and AML/CFT compliance officer
(1)
A reporting entity must establish, implement, and maintain a compliance programme (an AML/CFT programme) that includes internal procedures, policies, and controls to—
(a)
detect money laundering and the financing of terrorism; and
(b)
manage and mitigate the risk of money laundering and financing of terrorism.
(2)
A reporting entity must designate an employee as an AML/CFT compliance officer to administer and maintain its AML/CFT programme.
(3)
In the case of a reporting entity that does not have employees, the reporting entity must appoint a person to act as its AML/CFT compliance officer.
(4)
The AML/CFT compliance officer must report to a senior manager of the reporting entity.
(5)
Despite subsections (2) to (4), if a reporting entity is a partnership,—
(a)
the partnership may designate one of the partners as an AML/CFT compliance officer to administer and maintain its AML/CFT programme, irrespective of whether the partnership has or does not have employees; and
(b)
the partner so designated must report to another partner designated for the purpose of receiving those reports by the partnership.
Section 56(5): inserted, on 8 September 2018, by section 6 of the Statutes Amendment Act 2018 (2018 No 27).
57 Minimum requirements for AML/CFT programmes
(1)
A reporting entity’s AML/CFT programme must be in writing and be based on the risk assessment undertaken in accordance with section 58 and include adequate and effective procedures, policies, and controls for—
(a)
vetting—
(i)
senior managers:
(ii)
the AML/CFT compliance officer:
(iii)
any other employee that is engaged in AML/CFT related duties; and
(b)
training on AML/CFT matters for the following employees:
(i)
senior managers:
(ii)
the AML/CFT compliance officer:
(iii)
any other employee that is engaged in AML/CFT related duties; and
(c)
complying with customer due diligence requirements (including ongoing customer due diligence and account monitoring); and
(d)
reporting suspicious activities; and
(da)
reporting prescribed transactions; and
(e)
record keeping; and
(f)
setting out what the reporting entity needs to do, or continue to do, to manage and mitigate the risks of money laundering and the financing of terrorism; and
(g)
examining, and keeping written findings relating to,—
(i)
complex or unusually large transactions; and
(ii)
unusual patterns of transactions that have no apparent economic or visible lawful purpose; and
(iii)
any other activity that the reporting entity regards as being particularly likely by its nature to be related to money laundering or the financing of terrorism; and
(h)
monitoring, examining, and keeping written findings relating to business relationships and transactions from or in countries that do not have or have insufficient anti-money laundering or countering financing of terrorism systems in place and have additional measures for dealing with or restricting dealings with such countries; and
(i)
preventing the use, for money laundering or the financing of terrorism, of products (for example, the misuse of technology) and transactions (for example, non-face-to-face business relationships or transactions) that might favour anonymity; and
(j)
determining when enhanced customer due diligence is required and when simplified customer due diligence might be permitted; and
(k)
providing when a person who is not the reporting entity may, and setting out the procedures for the person to, conduct the relevant customer due diligence on behalf of the reporting entity; and
(l)
monitoring and managing compliance with, and the internal communication of and training in, those procedures, policies, and controls.
(2)
In developing an AML/CFT programme, a reporting entity must have regard to any applicable guidance material produced by AML/CFT supervisors or the Commissioner relating to AML/CFT programmes.
Section 57(1): amended, on 11 August 2017, by section 28(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 57(1)(d): amended, on 11 August 2017, by section 28(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 57(1)(da): inserted, on 1 July 2017, by section 10 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 57(2): inserted, on 11 August 2017, by section 28(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
58 Risk assessment
(1)
Before conducting customer due diligence or establishing an AML/CFT programme, a reporting entity must first undertake an assessment of the risk of money laundering and the financing of terrorism (a risk assessment) that it may reasonably expect to face in the course of its business.
(2)
In assessing the risk, the reporting entity must have regard to the following:
(a)
the nature, size, and complexity of its business; and
(b)
the products and services it offers; and
(c)
the methods by which it delivers products and services to its customers; and
(d)
the types of customers it deals with; and
(e)
the countries it deals with; and
(f)
the institutions it deals with; and
(g)
any applicable guidance material produced by AML/CFT supervisors or the Commissioner relating to risk assessments; and
(h)
any other factors that may be provided for in regulations.
(3)
The risk assessment must be in writing and—
(a)
identify the risks faced by the reporting entity in the course of its business; and
(b)
describe how the reporting entity will ensure that the assessment remains current; and
(c)
enable the reporting entity to determine the level of risk involved in relation to relevant obligations under this Act and regulations.
59 Review and audit of risk assessment and AML/CFT programmes
(1)
A reporting entity (other than a high-value dealer) must review its risk assessment and AML/CFT programme to—
(a)
ensure that the risk assessment and AML/CFT programme are up to date; and
(b)
identify any deficiencies in the effectiveness of the risk assessment and the AML/CFT programme; and
(c)
make any changes to the risk assessment or AML/CFT programme identified as being necessary under paragraph (b).
(2)
A reporting entity (other than a high-value dealer) must ensure that its risk assessment and AML/CFT programme are audited every 2 years or during a different time period prescribed by regulations, or at any other time at the request of the relevant AML/CFT supervisor.
Section 59: replaced, on 11 August 2017, by section 29 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
59A Audit of compliance with AML/CFT obligations
A high-value dealer must ensure that its compliance with its AML/CFT obligations under section 6(4)(d)(ii), and any regulations, is audited when the relevant AML/CFT supervisor requests.
Section 59A: inserted, on 11 August 2017, by section 29 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
59B Who carries out audit
(1)
An audit under section 59 or 59A must be carried out by an independent person, appointed by the reporting entity, who is appropriately qualified to conduct the audit.
(2)
A person appointed to conduct an audit is not required to be—
(a)
a chartered accountant within the meaning of section 19 of the New Zealand Institute of Chartered Accountants Act 1996; or
(b)
qualified to undertake financial audits.
(3)
A person appointed to conduct an audit must not have been involved in—
(a)
the establishment, implementation, or maintenance of the reporting entity’s AML/CFT programme (if any); or
(b)
the undertaking of the reporting entity’s risk assessment (if any).
(4)
The audit of a risk assessment under section 59 is limited to an audit of whether the reporting entity’s risk assessment fulfils the requirements in section 58(3).
(5)
A reporting entity must provide a copy of any audit to its AML/CFT supervisor on request.
Section 59B: inserted, on 11 August 2017, by section 29 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
60 Annual AML/CFT report
(1)
The reporting entity must prepare an annual report on its risk assessment and AML/CFT programme.
(2)
An annual report must—
(a)
be in the prescribed form; and
(b)
take into account the results and implications of the audit required by section 59(2); and
(c)
contain any information prescribed by regulations.
(3)
The reporting entity must provide the annual report to its AML/CFT supervisor at a time appointed by the AML/CFT supervisor.
(4)
The AML/CFT supervisor must give the reporting entity reasonable notice of the requirement to provide the annual report.
61 Reporting entities to ensure that branches and subsidiaries comply with AML/CFT requirements
(1)
A reporting entity must ensure that its branches and subsidiaries that are in a foreign country apply, to the extent permitted by the law of that country, measures broadly equivalent to those set out in this Act and regulations with regard to the requirements for customer due diligence (including ongoing customer due diligence), risk assessments, AML/CFT programmes, and record keeping.
(2)
If the law of the foreign country does not permit the application of those equivalent measures by the branch or the subsidiary located in that country, the reporting entity must—
(a)
inform its AML/CFT supervisor accordingly; and
(b)
take additional measures to effectively handle the risk of a money laundering offence and the financing of terrorism.
(3)
A reporting entity must communicate (where relevant) the policies, procedures, and controls that it establishes, implements, and maintains in accordance with this subpart to its branches and subsidiaries that are outside New Zealand.
Subpart 5—Codes of practice
62 Interpretation
In this Part, unless the context otherwise requires,—
code of practice means a code of practice approved by the responsible Minister under section 64, as amended from time to time
proposed code of practice means a document prepared under section 63(1).
63 AML/CFT supervisors to prepare codes of practice for relevant sectors
(1)
An AML/CFT supervisor must, if directed to do so by the Minister responsible for that AML/CFT supervisor (the responsible Minister), prepare—
(a)
1 or more codes of practice for the sector of activity of the reporting entities for which it is the supervisor under section 130 or in respect of different reporting entities specified by the responsible Minister:
(b)
an instrument that amends a code of practice or revokes the whole or any provision of a code of practice prepared under paragraph (a).
(2)
The purpose of a code of practice is to provide a statement of practice that assists reporting entities to comply with their obligations under this Act and regulations.
(3)
A direction under subsection (1) may (without limitation)—
(a)
relate generally to the obligations imposed on the relevant reporting entities by or under this Act or regulations or specify particular aspects of those obligations that are to be covered by the code of practice:
(b)
specify the amendments to be made or their intended effect, and specify the extent of the revocation to be made:
(c)
indicate the date by which the responsible Minister wishes the code of practice to be provided to him or her:
(d)
include details about the recommendation that the AML/CFT supervisor is required to provide under section 64(1)(a).
(4)
An AML/CFT supervisor must comply with a direction under subsection (1) as soon as practicable.
(5)
No code of practice has legal effect until approved by the responsible Minister under section 64(6).
64 Procedure for approval and publication of codes of practice
(1)
The responsible Minister must not approve a code of practice prepared by an AML/CFT supervisor unless—
(a)
the AML/CFT supervisor has made a recommendation that the Minister should approve the code of practice; and
(b)
the AML/CFT supervisor has consulted the persons and organisations that the Minister thinks appropriate, having regard to the subject matter of the proposed code of practice.
(2)
In consulting under subsection (1)(b), the AML/CFT supervisor must ensure that—
(a)
a copy of the proposed code of practice or a summary of its contents, in hard copy or electronic format, is provided to the persons and organisations being consulted; and
(b)
the persons and organisations being consulted have at least 20 working days to make submissions or representations about the proposed code of practice.
(3)
The responsible Minister may direct the AML/CFT supervisor to reconsider any aspect of the proposed code of practice and to make any amendments that the Minister considers necessary.
(4)
Despite subsection (3),—
(a)
if the AML/CFT supervisor does not amend the proposed code of practice as directed by the Minister or within the time specified by the Minister, the Minister may make those amendments:
(b)
the Minister may, after consultation with the AML/CFT supervisor, make any further amendments to the proposed code of practice that he or she considers necessary.
(5)
The responsible Minister must—
(a)
approve the proposed code of practice as prepared by the AML/CFT supervisor; or
(b)
approve the proposed code of practice as amended by the AML/CFT supervisor; or
(c)
approve the proposed code of practice as amended by the Minister after consultation with the AML/CFT supervisor.
(6)
The responsible Minister approves a code of practice by notice in the Gazette, and the notice—
(a)
must either set out the code of practice or state where copies of the code of practice in hard copy or electronic format may be obtained or viewed:
(b)
is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
Section 64(6)(b): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
65 Amendment and revocation of codes of practice
(1)
A code of practice may be amended or revoked in the same manner as that in which it was made.
(2)
Sections 63, 64, 66, and 67 apply with the necessary modifications to the amendment or revocation of a code of practice.
66 Proof of codes of practice
Publication in the Gazette of a notice under section 64(6) is conclusive evidence that the requirements of sections 64(1) to (5) and 65 have been complied with in respect of the approval specified in the notice.
67 Legal effect of codes of practice
(1)
A reporting entity complies with an obligation imposed on it by or under this Act or regulations by—
(a)
complying with those provisions of a code of practice that state a means of satisfying the obligation; or
(b)
complying with the obligation by some other equally effective means.
(2)
However, a reporting entity may not rely on subsection (1)(b) as a defence to an act or omission on its part unless it has, by notice in writing given before the act or omission occurred, advised the AML/CFT supervisor that it has opted out of compliance with the code of practice and intends to satisfy its obligations by some other equally effective means.
(3)
If a person is charged with an offence in respect of a failure to comply with any provision of this Act, a court must, in determining whether that person has failed to comply with the provision, have regard to any code of practice in force under section 64(6) at the time of the alleged failure relating to matters of the kind to which the provision relates.
(4)
If an application for an injunction against a person has been made under this Act, a court must, in determining whether to grant the injunction, have regard to any code of practice in force under section 64(6).
(5)
If an application for a pecuniary penalty against a person has been made under this Act, a court must, in determining whether to impose a pecuniary penalty, have regard to any code of practice in force under section 64(6) at the time the person engaged in conduct that constituted the relevant civil liability act.
Subpart 6—Cross-border transportation of cash
68 Reports about movement of cash into or out of New Zealand
(1)
A person must not move cash into or out of New Zealand if—
(a)
the total amount of the cash is equal to or above than the applicable threshold value; and
(b)
the person has not given a report in respect of the movement of that cash in accordance with this subpart; and
(c)
the movement of that cash is not exempted under this Act or regulations (if any).
(2)
For the purposes of this Act, a person moves cash into New Zealand if the person brings or sends the cash into New Zealand.
(3)
For the purposes of this Act, a person moves cash out of New Zealand if the person takes or sends the cash out of New Zealand.
Compare: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ss 53(3), 57(2), 58 (Aust)
Section 68(1)(a): amended, on 11 August 2017, by section 30 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
69 Reports about receipt of cash from outside New Zealand
A person must not receive cash moved to the person from outside New Zealand if—
(a)
the total amount of the cash is equal to or above the applicable threshold value; and
(b)
the person has not given a report in respect of the movement of that cash in accordance with this subpart; and
(c)
the movement of that cash is not exempted under this Act or regulations (if any).
Compare: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 s 55(3) (Aust)
Section 69(a): amended, on 11 August 2017, by section 31 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
70 Reporting requirements
A report under this subpart must—
(a)
be in writing in the appropriate prescribed form; and
(b)
contain the prescribed information; and
(c)
be completed in accordance with regulations (if any); and
(d)
be provided to a Customs officer or any other prescribed person,—
(i)
in the case of accompanied cash, at the time prescribed for the purposes of this subparagraph; and
(ii)
in the case of unaccompanied cash, at the time prescribed for the purposes of this subparagraph.
Compare: 1996 No 9 s 37; Anti-Money Laundering and Counter-Terrorism Financing Act 2006 s 55(5) (Aust)
Section 70(a): amended, on 11 August 2017, by section 32(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 70(d): replaced, on 11 August 2017, by section 32(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
71 Information to be forwarded to Commissioner
(1)
If a report is made to a Customs officer under this subpart, that officer must, as soon as practicable, forward the report to the Commissioner.
(2)
If, in the course of conducting a search under this Act, a Customs officer discovers any cash in respect of which a report is required to be made under this subpart but has not been made, that officer must, as soon as practicable, report the details of the search, and of the cash, to the Commissioner.
(3)
Every report made under subsection (2) must be in the form that the Commissioner may determine after consultation with the chief executive of the New Zealand Customs Service.
(4)
The chief executive of the New Zealand Customs Service must—
(a)
cause a record to be made and kept of—
(i)
each occasion on which a cash report is made to a Customs officer; and
(ii)
the details of the identity of the person making the cash report; and
(iii)
the date on which the cash report is made; and
(b)
ensure that the record is retained for a period of not less than 1 year after the date on which the cash report is made.
Compare: 1996 No 9 s 42
Part 3 Enforcement
Subpart 1—General provisions relating to Part
Proceedings for civil penalties
72 When and how civil penalty proceedings brought
(1)
An application for a civil penalty under this Part may be made no later than 6 years after the conduct giving rise to the liability to pay the civil penalty occurred.
(2)
In proceedings for a civil penalty under this Part,—
(a)
the standard of proof is the standard of proof that applies in civil proceedings; and
(b)
the relevant AML/CFT supervisor may, by order of the court, obtain discovery and administer interrogatories.
Relationship between civil penalty and criminal proceedings
73 Relationship between concurrent civil penalty proceedings and criminal proceedings
(1)
Criminal proceedings for an offence under this Part may be commenced against a person in relation to particular conduct whether or not proceedings for a civil penalty under this Part have been commenced against the person in relation to the same or substantially the same conduct.
(2)
Proceedings under this Part for a civil penalty against a person in relation to particular conduct are stayed if criminal proceedings against the person are or have been commenced for an offence under this Part in relation to the same or substantially the same conduct.
(3)
After the criminal proceedings referred to in subsection (2) have been completed or withdrawn, a person may apply to have the stay lifted on the civil penalty proceedings referred to in that subsection.
74 One penalty only rule
(1)
If civil penalty or criminal proceedings under this Part are brought against a person in relation to particular conduct, a court may not impose a penalty (whether civil or criminal) on the person if a court has already imposed a penalty under this Part in proceedings relating to the same or substantially the same conduct.
(2)
If a person is or may be liable to more than 1 civil penalty under this Part in respect of the same or substantially the same conduct, civil penalty proceedings may be brought against the person for more than 1 civil penalty, but the person may not be required to pay more than 1 civil penalty in respect of the same or substantially the same conduct.
75 Restriction on use of evidence given in civil penalty proceedings
(1)
Evidence of information given, or evidence of production of documents, by a person is not admissible in criminal proceedings against the person for an offence under this Part or any other enactment if—
(a)
the person previously gave the evidence or produced the documents in civil penalty proceedings under this Part against him or her, whether or not a civil penalty was imposed; and
(b)
the proceedings for the civil penalty related to conduct that was the same or substantially the same as the conduct constituting the offence.
(2)
This section does not apply to criminal proceedings in respect of the falsity of the evidence given by the person in the proceedings for the civil penalty.
Immunities
76 Protection for AML/CFT supervisors
No civil or criminal proceedings may be brought against an AML/CFT supervisor or a person who is or has been an officer, employee, member of, or member of the board of, an AML/CFT supervisor for anything done or omitted to be done in the course of the performance or exercise of the AML/CFT supervisor’s functions or powers under this Act or regulations unless it is shown that the AML/CFT supervisor or the person concerned acted in bad faith.
Section 76: amended, on 11 August 2017, by section 33 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
77 Protection for reporting entities, officers, etc, acting in compliance with this Act
No reporting entity, or person who is, or has been, an officer, an employee, or a member of the governing body of the reporting entity, or person appointed under section 56(3) is criminally or civilly liable for any action taken in order to comply with this Act or regulations if the action—
(a)
was taken in good faith; and
(b)
was reasonable in the circumstances.
Subpart 2—Civil liability
78 Meaning of civil liability act
In this Part, a civil liability act occurs when a reporting entity fails to comply with any of the AML/CFT requirements, including, without limitation, when the reporting entity—
(a)
fails to conduct customer due diligence as required by subpart 1 of Part 2:
(b)
fails to adequately monitor accounts and transactions:
(c)
enters into or continues a business relationship with a person who does not produce or provide satisfactory evidence of the person’s identity:
(d)
enters into or continues a correspondent banking relationship with a shell bank:
(da)
fails to report transactions in accordance with subpart 2A of Part 2:
(e)
fails to keep records in accordance with the requirements of subpart 3 of Part 2:
(f)
fails to establish, implement, or maintain an AML/CFT programme:
(g)
fails to ensure that its branches and subsidiaries comply with the relevant AML/CFT requirements.
Section 78(da): inserted, on 1 July 2017, by section 11 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
79 Possible responses to civil liability act
If a civil liability act is alleged to have occurred, the relevant AML/CFT supervisor may do 1 or more of the following:
(a)
issue a formal warning under section 80:
(b)
accept an enforceable undertaking under section 81 and seek an order in the court for breach of that undertaking under section 82:
(c)
seek an injunction from the High Court under section 85 or 87:
(d)
apply to the court for a pecuniary penalty under section 90.
Formal warnings
80 Formal warnings
(1)
The relevant AML/CFT supervisor may issue 1 or more formal warnings to a person if the AML/CFT supervisor has reasonable grounds to believe that that person has engaged in conduct that constituted a civil liability act.
(2)
A formal warning must be—
(a)
in the prescribed form; and
(b)
issued in the manner specified in regulations (if any).
Enforceable undertakings
81 Enforceable undertakings
(1)
The relevant AML/CFT supervisor may accept a written undertaking given by a person in connection with compliance with this Act or regulations (if any).
(2)
The person may withdraw or vary the undertaking at any time, but only with the consent of the relevant AML/CFT supervisor.
82 Enforcement of undertakings
(1)
If the relevant AML/CFT supervisor considers that a person who gave an undertaking under section 81 has breached 1 or more of its terms, the relevant AML/CFT supervisor may apply to the court for an order under subsection (2).
(2)
If the court is satisfied that the person has breached 1 or more of the terms of the undertaking, the court may make any or all of the following orders:
(a)
an order directing the person to comply with any of the terms of the undertaking:
(b)
an order directing the person to pay to the AML/CFT supervisor an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
(c)
any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach.
83 Assessment of compensation for breach of undertakings
For the purposes of section 82(2)(c), in determining whether another person (person A) has suffered loss or damage as a result of the breach, and in assessing the amount of compensation payable, the court may have regard to the following:
(a)
the extent to which any expenses incurred by person A are attributable to dealing with the breach:
(b)
the effect of the breach on person A’s ability to carry on business or other activities:
(c)
any damage to the reputation of person A’s business that is attributable to dealing with the breach:
(d)
any loss of business opportunities suffered by person A as a result of dealing with the breach:
(e)
any other matters that the court considers relevant.
Injunctions
84 Powers of High Court not affected
The powers in sections 85 to 89 are in addition to, and do not derogate from, any other powers of the High Court relating to the granting of injunctions.
85 Performance injunctions
(1)
The High Court may, on the application of the relevant AML/CFT supervisor, grant an injunction requiring a person to do an act or thing if—
(a)
that person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do that act or thing; and
(b)
the refusal or failure was, is, or would be a civil liability act.
(2)
The court may rescind or vary an injunction granted under this section.
86 When High Court may grant performance injunctions
(1)
The High Court may grant an injunction requiring a person to do an act or thing if—
(a)
it is satisfied that the person has refused or failed to do that act or thing; or
(b)
it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing.
(2)
Subsection (1)(a) applies whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing.
(3)
Subsection (1)(b) applies—
(a)
whether or not the person has previously refused or failed to do that act or thing; or
(b)
where there is an imminent danger of substantial damage to any other person if that person refuses or fails to do that act or thing.
87 Restraining injunctions
(1)
The High Court may, on the application of the relevant AML/CFT supervisor, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute a contravention of a provision of this Act.
(2)
The court may rescind or vary an injunction granted under this section.
88 When High Court may grant restraining injunctions and interim injunctions
(1)
The High Court may grant an injunction restraining a person from engaging in conduct of a particular kind if—
(a)
it is satisfied that the person has engaged in conduct of that kind; or
(b)
it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
(2)
The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if, in its opinion, it is desirable to do so.
(3)
Subsections (1)(a) and (2) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
(4)
Subsections (1)(b) and (2) apply—
(a)
whether or not the person has previously engaged in conduct of that kind; or
(b)
where there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind.
89 Undertaking as to damages not required by AML/CFT supervisor
(1)
If the relevant AML/CFT supervisor applies to the High Court for the grant of an interim injunction under this subpart, the court must not, as a condition of granting an interim injunction, require the AML/CFT supervisor to give an undertaking as to damages.
(2)
However, in determining the AML/CFT supervisor’s application for the grant of an interim injunction, the court must not take into account that the AML/CFT supervisor is not required to give an undertaking as to damages.
Pecuniary penalties
90 Pecuniary penalties for civil liability act
(1)
On the application of the relevant AML/CFT supervisor, the High Court may order a person to pay a pecuniary penalty to the Crown, or to any other person specified by the court, if the court is satisfied that that person has engaged in conduct that constituted a civil liability act.
(2)
For a civil liability act specified in section 78(b), (c), (d), or (g), the maximum amount of a pecuniary penalty under this Act is,—
(a)
in the case of an individual, $100,000; and
(b)
in the case of a body corporate or partnership, $1 million.
(3)
For a civil liability act specified in section 78(a), (da), (e), or (f), the maximum amount of a pecuniary penalty under this Act is,—
(a)
in the case of an individual, $200,000; and
(b)
in the case of a body corporate or partnership, $2 million.
(4)
In determining an appropriate pecuniary penalty, the court must have regard to all relevant matters, including—
(a)
the nature and extent of the civil liability act; and
(b)
the likelihood, nature, and extent of any damage to the integrity or reputation of New Zealand’s financial system because of the civil liability act; and
(c)
the circumstances in which the civil liability act occurred; and
(d)
whether the person has previously been found by the court in proceedings under this Act to have engaged in any similar conduct.
Section 90(2)(b): amended, on 8 September 2018, by section 7(1) of the Statutes Amendment Act 2018 (2018 No 27).
Section 90(3): amended, on 1 July 2017, by section 12 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 90(3)(b): amended, on 8 September 2018, by section 7(2) of the Statutes Amendment Act 2018 (2018 No 27).
Subpart 3—Offences
Offence and penalties relating to civil liability act
91 Offence and penalties for civil liability act
A reporting entity that engages in conduct constituting a civil liability act commits an offence if the reporting entity engages in that conduct knowingly or recklessly.
Offences relating to suspicious activity reports and prescribed transaction reports
Heading: replaced, on 1 July 2017, by section 13 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Heading: amended, on 11 August 2017, by section 34 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
92 Failing to report suspicious activity
(1)
A reporting entity commits an offence if—
(a)
an activity is conducted or is sought to be conducted through the reporting entity; and
(b)
the reporting entity has reasonable grounds to suspect that the activity or the proposed activity is or may be—
(i)
relevant to the investigation or prosecution of any person for a money laundering offence; or
(ii)
relevant to the enforcement of the Misuse of Drugs Act 1975; or
(iii)
relevant to the enforcement of the Terrorism Suppression Act 2002; or
(iv)
relevant to the enforcement of the Proceeds of Crime Act 1991 or the Criminal Proceeds (Recovery) Act 2009; or
(v)
relevant to the investigation or prosecution of an offence within the meaning of section 243(1) of the Crimes Act 1961; and
(c)
the reporting entity fails to report the activity or the proposed activity to the Commissioner as soon as practicable, but no later than 3 working days, after forming that suspicion.
(2)
It is a defence to a prosecution under this section if a reporting entity believes on reasonable grounds that the documents or information relating to the activity were privileged communications.
Compare: 1996 No 9 s 22(1)
Section 92 heading: amended, on 11 August 2017, by section 35(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 92(1)(a): amended, on 11 August 2017, by section 35(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 92(1)(b): amended, on 11 August 2017, by section 35(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 92(1)(b)(iv): amended, on 12 December 2012, by section 6 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2012 (2012 No 98).
Section 92(1)(b)(v): amended, on 1 July 2017, by section 14 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 92(1)(c): amended, on 11 August 2017, by section 35(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 92(2): inserted, on 11 August 2017, by section 35(5) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
93 Providing false or misleading information in connection with suspicious activity reports or prescribed transaction reports
A person commits an offence who, in making a suspicious activity report or a prescribed transaction report, or in supplying information in connection with a suspicious activity report or a prescribed transaction report,—
(a)
makes any statement that the person knows is false or misleading in a material particular; or
(b)
omits from any statement any matter or thing without which the person knows that the statement is false or misleading in a material particular.
Compare: 1996 No 9 s 22(3)
Section 93 heading: amended, on 11 August 2017, by section 36(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 93 heading: amended, on 1 July 2017, by section 15(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 93: amended, on 11 August 2017, by section 36(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 93: amended, on 1 July 2017, by section 15(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
94 Unlawful disclosure of suspicious activity reports or prescribed transaction reports
(1)
A person commits an offence who contravenes section 46—
(a)
for the purpose of obtaining, directly or indirectly, an advantage or a pecuniary gain for that person or any other person; or
(b)
with intent to prejudice any investigation into—
(i)
the commission or possible commission of a money laundering offence; or
(ii)
the financing of terrorism or the possible financing of terrorism.
(2)
A person commits an offence who—
(a)
is an officer or employee or a former officer or employee of a reporting entity, a person appointed as an AML/CFT compliance officer under section 56(3), or an auditor for a reporting entity; and
(b)
has become aware, or became aware, in the course of that person’s duties as such an officer or employee, that any investigation into any activity or proposed activity that is the subject of a suspicious activity report or a prescribed transaction report is being, or may be, conducted by the Police; and
(c)
knows that he or she is not legally authorised to disclose the information; and
(d)
discloses that information to any other person—
(i)
for the purpose of obtaining, directly or indirectly, an advantage or a pecuniary gain for that person or any other person; or
(ii)
with intent to prejudice any investigation into—
(A)
the commission or possible commission of a money laundering offence; or
(B)
the financing of terrorism or the possible financing of terrorism.
Compare: 1996 No 9 s 22(4), (5)
Section 94 heading: amended, on 11 August 2017, by section 37(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 94 heading: amended, on 1 July 2017, by section 16(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 94(2)(b): amended, on 11 August 2017, by section 37(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 94(2)(b): amended, on 1 July 2017, by section 16(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
95 Failure to keep or retain adequate records relating to suspicious activities or prescribed transactions
A reporting entity commits an offence if the reporting entity fails to keep or retain adequate records relating to a suspicious activity or a prescribed transaction.
Section 95 heading: amended, on 11 August 2017, by section 38(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 95 heading: amended, on 1 July 2017, by section 17(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 95: amended, on 11 August 2017, by section 38(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 95: amended, on 1 July 2017, by section 17(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
96 Obstruction of investigation relating to suspicious activity reports or prescribed transaction reports
(1)
A person commits an offence if the person obstructs any investigation relating to any suspicious activity report or prescribed transaction report without lawful justification or excuse.
(2)
It is a defence to a prosecution under this section if the reporting entity believes on reasonable grounds that the documents or information were privileged communications.
Section 96 heading: amended, on 11 August 2017, by section 39(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 96 heading: amended, on 1 July 2017, by section 18(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 96(1): amended, on 11 August 2017, by section 39(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 96(1): amended, on 1 July 2017, by section 18(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 96(2): inserted, on 11 August 2017, by section 39(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
97 Contravention of section 47(1) or 48A(1)
A person commits an offence if the person acts in contravention of section 47(1) or 48A(1) without lawful justification or excuse.
Compare: 1996 No 9 s 22(8)
Section 97 heading: amended, on 1 July 2017, by section 19(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 97: amended, on 1 July 2017, by section 19(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
98 Defence
(1)
It is a defence to a charge against a person in relation to a contravention of, or a failure to comply with, Part 2 if the defendant proves that—
(a)
the defendant took all reasonable steps to ensure that the defendant complied with that Part; or
(b)
in the circumstances of the particular case, the defendant could not reasonably have been expected to ensure that the defendant complied with that Part.
(2)
In determining, for the purposes of subsection (1)(a), whether or not a defendant took all reasonable steps to comply with Part 2, the court must have regard to—
(a)
the nature of the reporting entity and the activities in which it engages; and
(b)
the existence and adequacy of any procedures established by the reporting entity to ensure compliance with that Part.
(3)
Except as provided in subsection (4), subsection (1) does not apply unless, within 21 days after the service of the summons, or within such further time as the court may allow, the defendant has delivered to the prosecutor a written notice—
(a)
stating that the defendant intends to rely on the defence referred to in subsection (1); and
(b)
specifying the reasonable steps that the defendant will claim to have taken.
(4)
In any such prosecution, evidence that the defendant took a step not specified in the written notice required by subsection (3) is not, except with the leave of the court, admissible for the purpose of supporting a defence under subsection (1).
Compare: 1996 No 9 s 23
99 Time limit for prosecution of offences relating to civil liability act and suspicious activity reports or prescribed transaction reports
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence under any of sections 91 to 97 of this Act ends on the date that is 3 years after the date on which the offence was committed.
Section 99: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 99 heading: amended, on 11 August 2017, by section 40 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 99 heading: amended, on 1 July 2017, by section 20 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
100 Penalties
A reporting entity or person who commits an offence under any of sections 91 to 97 is liable, on conviction, to,—
(a)
in the case of an individual, either or both of the following:
(i)
a term of imprisonment of not more than 2 years:
(ii)
a fine of up to $300,000; and
(b)
in the case of a body corporate or partnership, a fine of up to $5 million.
Section 100(b): amended, on 8 September 2018, by section 8 of the Statutes Amendment Act 2018 (2018 No 27).
Other offences relating to non-compliance with AML/CFT requirements
101 Structuring transaction to avoid application of AML/CFT requirements
(1)
A person commits an offence if the person structures a transaction (other than a transaction that involves the cross-border transportation of cash) to avoid the application of any AML/CFT requirements.
(2)
For the purposes of this section, transaction includes, but is not limited to, a suspicious transaction or a prescribed transaction.
Section 101(2): inserted, on 1 July 2017, by section 21 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
102 Offence to obstruct AML/CFT supervisor
A person commits an offence if the person wilfully obstructs any AML/CFT supervisor in the exercise of any power conferred or the performance of any function imposed on that supervisor by this Act or regulations.
Section 102: amended, on 11 August 2017, by section 41 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
103 Offence to provide false or misleading information to AML/CFT supervisor
A person commits an offence if, without reasonable excuse, the person provides information to an AML/CFT supervisor knowing that information to be false or misleading in any material respect.
104 Time limit for prosecution of offences relating to non-compliance with AML/CFT requirements
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence under any of sections 101 to 103 of this Act ends on the date that is 3 years after the date on which the offence was committed.
Section 104: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
105 Penalties
(1)
A person who commits an offence under section 101 is liable, on conviction, to,—
(a)
in the case of an individual, either or both of the following:
(i)
a term of imprisonment of not more than 2 years:
(ii)
a fine of up to $300,000; and
(b)
in the case of a body corporate or partnership, a fine of up to $5 million.
(2)
A person who commits an offence under either of sections 102 and 103 is liable, on conviction, to,—
(a)
in the case of an individual, either or both of the following:
(i)
a term of imprisonment of not more than 3 months:
(ii)
a fine of up to $10,000; and
(b)
in the case of a body corporate or partnership, a fine of up to $50,000.
Section 105(1)(b): amended, on 8 September 2018, by section 9(1) of the Statutes Amendment Act 2018 (2018 No 27).
Section 105(2)(b): amended, on 8 September 2018, by section 9(2) of the Statutes Amendment Act 2018 (2018 No 27).
Offences relating to cross-border transportation of cash
106 Failure to report cash equal to or above applicable threshold value moved into or out of New Zealand
A person commits an offence if the person fails, without reasonable excuse, to make or cause to be made a cash report, in accordance with subpart 6 of Part 2, concerning cash equal to or above the applicable threshold value that the person has moved into or out of New Zealand.
Section 106 heading: amended, on 11 August 2017, by section 42(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 106: amended, on 11 August 2017, by section 42(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
107 Failure to report cash equal to or above applicable threshold value received by person in New Zealand from overseas
A person commits an offence if the person fails, without reasonable excuse, to make or cause to be made a cash report, in accordance with subpart 6 of Part 2, concerning cash equal to or above the applicable threshold value that the person has received in New Zealand from overseas.
Section 107 heading: amended, on 11 August 2017, by section 43(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 107: amended, on 11 August 2017, by section 43(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
108 Structuring cross-border transportation to avoid application of AML/CFT requirements
A person commits an offence if the person structures a cross-border transportation of cash to avoid the application of any AML/CFT requirements.
109 Defence
It is a defence to an offence under section 106 or 107 in relation to a failure to make or cause to be made a cash report to a Customs officer under section 70(d) if the defendant proves that—
(a)
the failure was due to some emergency or to any other circumstances outside the reasonable control of the defendant; and
(b)
the defendant made or caused to be made a report in respect of that cash as soon as practicable after the obligation to make the report arose.
Compare: 1996 No 9 s 40(3)
110 Providing false or misleading information in connection with cash report
A person commits an offence if, without reasonable excuse, the person makes or causes to be made a cash report knowing it is false or misleading in any material respect.
Compare: 1996 No 9 s 40(1)(b)
111 Offence to obstruct or not to answer questions from Customs officer
(1)
A person commits an offence if the person wilfully obstructs any Customs officer in the exercise of any power conferred or performance of any duty imposed on that officer by this Act or regulations.
(2)
A person commits an offence if, without reasonable excuse, the person fails to answer questions from a Customs officer.
Compare: 1996 No 9 s 40(2)
Section 111(1): amended, on 11 August 2017, by section 44 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
112 Penalties
A person who commits an offence under any of sections 106, 107, 108, 110, and 111 is liable, on conviction, to,—
(a)
in the case of an individual, either or both of the following:
(i)
a term of imprisonment of not more than 3 months:
(ii)
a fine of up to $10,000; and
(b)
in the case of a body corporate or partnership, a fine of up to $50,000.
Section 112: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 112(b): amended, on 8 September 2018, by section 10 of the Statutes Amendment Act 2018 (2018 No 27).
113 Chief executive of New Zealand Customs Service may deal with cash reporting offences
(1)
This section applies if, in any case to which section 106 or 107 applies, a person admits in writing that he or she has committed the offence and requests that the offence be dealt with summarily by the chief executive of the New Zealand Customs Service.
(2)
If this section applies, the chief executive of the New Zealand Customs Service may, at any time before a charging document has been filed in respect of the offence, accept from that person a sum, not exceeding $500, that the chief executive of the New Zealand Customs Service thinks just in the circumstances of the case, in full satisfaction of any fine to which the person would otherwise be liable under section 112.
(3)
If the chief executive of the New Zealand Customs Service accepts any sum under this section, the offender is not liable to be prosecuted for the offence in respect of which the payment was made.
Compare: 1996 No 9 s 41
Section 113(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Relationship with Customs and Excise Act 1996
114 Relationship with Customs and Excise Act 1996
(1)
Nothing in this Act limits or affects the Customs and Excise Act 1996.
(2)
The movement of cash in breach of any requirement of this Act or any regulations is, for the purposes of the Customs and Excise Act 1996, the importation or exportation of a prohibited good.
(3)
It is the duty of every Customs officer to prevent the movement of cash that is in breach of any requirement of this Act or any regulations.
(4)
For the purpose of carrying out the duty in subsection (3), a Customs officer may exercise his or her powers under the following sections of the Customs and Excise Act 1996 in relation to uncustomed or prohibited goods:
(a)
section 145 (questioning persons about goods and debt):
(b)
section 148 (detention of persons questioned about goods or debt):
(c)
sections 149, 149A, 149B, and 149C(1) (which relate to search and seizure):
(d)
sections 151 and 152 (which relate to examination of goods):
(e)
section 161 (further powers in relation to documents):
(f)
section 165 (copying of documents obtained during search):
(g)
section 166 (retention of documents and goods obtained during search):
(h)
sections 166A to 166F (which relate to seizure and detention of goods suspected to be tainted property):
(i)
sections 167 to 172 (which relate to search warrants and use of aids by Customs officers).
Section 114(4)(c): amended, on 1 October 2012, by section 201(2) of the Search and Surveillance Act 2012 (2012 No 24).
Computer searches by Customs officer
115 Duty of persons with knowledge of computer or computer network or other data storage devices to assist access to Customs officer
(1)
A Customs officer exercising a search or examination power under section 114(4) may require a specified person to provide access information and other information or assistance that is reasonable and necessary to allow the Customs officer to access data held in, or accessible from,—
(a)
a computer:
(b)
any other data storage device.
(2)
In this section,—
access information includes access codes, passwords, encryption keys, and any related information that enables access to a computer or other data storage device
specified person is a person who—
(a)
is the owner or lessee of the computer or other data storage device, or is in possession or control of the computer or other data storage device, is an employee of any of the above, or is a service provider who provides service to the above and holds access information; and
(b)
has relevant knowledge of—
(i)
the computer or a computer network of which the computer or other data storage device forms a part; or
(ii)
measures applied to protect data held in, or accessible from, the computer or other data storage device.
(3)
A specified person may not be required under subsection (1) to give any information tending to incriminate the person.
(4)
Subsection (3) does not prevent a Customs officer exercising a search power from requiring a specified person to provide information that—
(a)
is reasonable and necessary to allow the person exercising the search power to access data held in, or accessible from, a computer or other storage device that contains or may contain information tending to incriminate the specified person; but
(b)
does not itself tend to incriminate the specified person.
(5)
Subsection (3) does not prevent a Customs officer exercising a search power from requiring a specified person to provide assistance that is reasonable and necessary to allow the Customs officer exercising the search power to access data held in, or accessible from, a computer or other storage device that contains, or may contain, information tending to incriminate the specified person.
(6)
Subsections (1), (4), and (5) are subject to section 162 of the Customs and Excise Act 1996 (which relates to privilege and confidentiality).
Subpart 4—Search and seizure
116 Definitions
In this subpart, unless the context otherwise requires,—
document—
(a)
means any record of information; and
(b)
includes—
(i)
anything on which there is writing or any image; and
(ii)
anything on which there are marks, figures, symbols, or perforations that have a meaning for persons qualified to interpret them; and
(iii)
anything from which sounds, images, or writing can be reproduced, with or without the aid of anything else
dwellinghouse means a building, or an apartment, a flat, or a unit within a building, that is used as a private residence
enforcement officer means the relevant AML/CFT supervisor or the Commissioner (as the case may require) and includes a person appointed under section 141 by an AML/CFT supervisor
evidential material means any thing that there are reasonable grounds for believing is or may be evidence, or may provide or contain evidence, of—
(a)
an offence under this Part; or
(b)
an attempt to commit an offence under this Part; or
(c)
a civil liability act
occupier, in relation to any place, includes—
(a)
a person who is present at the place and is in apparent control of it; and
(b)
any person acting on behalf of the occupier
place—
(a)
means anywhere on, under, or over any land or water; and
(b)
includes all or any part of a building, structure, or conveyance
seize includes to secure against interference
thing includes—
(a)
any substance, article, document, container, or equipment; and
(b)
anything in electronic or magnetic form.
Search warrants
117 Search warrant
(1)
An enforcement officer may apply for a search warrant in respect of a place.
(2)
The application must be made by an enforcement officer in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012.
(3)
An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may issue a search warrant in respect of a place if satisfied that there are reasonable grounds for believing that there is evidential material at that place.
(4)
The provisions of subparts 1, 3, 4, and 9 of Part 4 of the Search and Surveillance Act 2012 apply.
(5)
[Repealed](6)
[Repealed]Section 117(2): replaced, on 30 June 2013, by section 201(3) of the Search and Surveillance Act 2012 (2012 No 24).
Section 117(3): amended, on 30 June 2013, by section 201(4) of the Search and Surveillance Act 2012 (2012 No 24).
Section 117(4): replaced, on 30 June 2013, by section 201(5) of the Search and Surveillance Act 2012 (2012 No 24).
Section 117(4): amended, on 11 August 2017, by section 45 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 117(5): repealed, on 30 June 2013, by section 201(5) of the Search and Surveillance Act 2012 (2012 No 24).
Section 117(6): repealed, on 30 June 2013, by section 201(5) of the Search and Surveillance Act 2012 (2012 No 24).
118 Powers under search warrant
(1)
A search warrant issued under section 117 authorises the enforcement officer or constable who is executing it, and any person called on by that officer or constable to assist, to do any of the following:
(a)
[Repealed](b)
[Repealed](c)
search for any evidential material at the place:
(d)
inspect and copy any document; and for that purpose also do any of the following:
(i)
require any person at the place to produce a particular document:
(ii)
require any person at the place who has control or knowledge of a document to reproduce, or assist in reproducing, the document in usable form:
(iii)
operate any equipment at the place:
(iv)
remove a document temporarily to another place in order to copy it:
(e)
[Repealed](f)
require the occupier of the place to answer any questions put by the enforcement officer or constable.
(2)
An enforcement officer or constable may require the occupier of the place to do the following:
(a)
hold any thing at the place in an unaltered state for a specified period of up to 5 working days:
(b)
provide a copy of particular documents within a specified period (which must be a period that is reasonable in the circumstances).
(3)
The provisions of Part 4 of the Search and Surveillance Act 2012 (except subpart 3 and sections 118, 119, and 130) apply.
Section 118(1)(a): repealed, on 30 June 2013, by section 201(6) of the Search and Surveillance Act 2012 (2012 No 24).
Section 118(1)(b): repealed, on 30 June 2013, by section 201(6) of the Search and Surveillance Act 2012 (2012 No 24).
Section 118(1)(c): amended, on 30 June 2013, by section 201(7) of the Search and Surveillance Act 2012 (2012 No 24).
Section 118(1)(e): repealed, on 30 June 2013, by section 201(6) of the Search and Surveillance Act 2012 (2012 No 24).
Section 118(3): replaced, on 30 June 2013, by section 201(8) of the Search and Surveillance Act 2012 (2012 No 24).
Conduct of entry, search, and seizure
119 Assistance with searches
[Repealed]Section 119: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
120 Enforcement officers to show identity card on request
[Repealed]Section 120: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
121 Announcement before entry
[Repealed]Section 121: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
122 Details of warrant to be given to occupier
Section 122: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
123 Occupier entitled to be present during search
(1)
The occupier of a place that is subject to a search under this subpart, and who is present at any time during the search, is entitled to observe the search as it is being carried out.
(2)
The right to observe the search ceases if the person observing impedes the search.
(3)
This section does not prevent 2 or more parts of the place being searched at the same time.
124 Use of electronic equipment
(1)
If an enforcement officer, a constable, or a person assisting a search operates electronic equipment found at a place during a search, the officer, constable, or person must take all reasonable care not to damage the equipment or corrupt information stored on it.
(2)
If, as a result of a failure to take the care required by subsection (1), the owner of the equipment or information, or the occupier of the place that was searched, suffers damage, the owner or occupier may seek damages from the relevant AML/CFT supervisor or the Police (as the case may require) in respect of that damage.
125 Copies of documents seized to be provided
[Repealed]Section 125: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
126 Receipts for things seized
[Repealed]Section 126: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
127 Application of sections 198A and 198B of Summary Proceedings Act 1957
[Repealed]Section 127: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
Return and retention of things seized[Repealed]
Heading: repealed, on 30 June 2013, pursuant to section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
128 Return and retention of things seized
[Repealed]Section 128: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
129 Order to retain things seized
[Repealed]Section 129: repealed, on 30 June 2013, by section 201(9) of the Search and Surveillance Act 2012 (2012 No 24).
Part 4 Institutional arrangements and miscellaneous provisions
Subpart 1—Institutional arrangements
AML/CFT supervisors
130 AML/CFT supervisors
(1)
The AML/CFT supervisors are as follows:
(a)
for registered banks, life insurers, and non-bank deposit takers, the Reserve Bank of New Zealand (Reserve Bank) is the relevant AML/CFT supervisor:
(b)
for persons referred to in subsection (1A) (other than banks, life insurers, and non-bank deposit takers), the Financial Markets Authority is the relevant AML/CFT supervisor:
(c)
for designated non-financial businesses or professions and high-value dealers, the Department of Internal Affairs, or another AML/CFT supervisor prescribed for the purpose, is the relevant AML/CFT supervisor:
(d)
for the New Zealand Racing Board, casinos, non-deposit-taking lenders, money changers, and other reporting entities that are not covered by paragraphs (a) to (c), the Department of Internal Affairs is the relevant AML/CFT supervisor.
(1A)
For the purposes of subsection (1)(b), the persons are any of the following:
(a)
persons registered, or required to be registered, under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 by virtue of providing any of the services referred to in—
(i)
section 5(1)(a), (ab), (d), or (i) to (id) of that Act; or
(ii)
section 5(1)(k) of that Act (but only to the extent that it relates to the service of trading in financial products on behalf of other persons):
(b)
statutory supervisors within the meaning of section 5 of the Retirement Villages Act 2003.
(2)
If the products or services provided by a particular reporting entity are covered by more than 1 AML/CFT supervisor,—
(a)
the AML/CFT supervisors concerned may agree on the relevant AML/CFT supervisor that will be the reporting entity’s AML/CFT supervisor for the purposes of this Act; and
(b)
the relevant AML/CFT supervisor will notify the reporting entity accordingly.
(3)
If a reporting entity is a member of a designated business group and the products and services provided by members of that designated business group are covered by more than 1 AML/CFT supervisor,—
(a)
the AML/CFT supervisors concerned may agree on 1 AML/CFT supervisor that will be the AML/CFT supervisor for all the reporting entities that are members of the designated business group for the purposes of this Act; and
(b)
that AML/CFT supervisor will notify the reporting entities accordingly.
(4)
If the AML/CFT supervisors cannot agree on which AML/CFT supervisor is to be a reporting entity’s supervisor under subsection (2) or (3), then the AML/CFT co-ordination committee must appoint the AML/CFT supervisor for that entity.
(5)
A reporting entity may have only 1 AML/CFT supervisor.
Section 130(1)(a): amended, on 5 December 2013, by section 9 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
Section 130(1)(b): replaced, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 130(1)(c): replaced, on 11 August 2017, by section 46 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 130(1)(d): inserted, on 11 August 2017, by section 46 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 130(1A): inserted, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
131 Functions
The functions of an AML/CFT supervisor are to—
(a)
monitor and assess the level of risk of money laundering and the financing of terrorism across all of the reporting entities that it supervises:
(b)
monitor the reporting entities that it supervises for compliance with this Act and regulations, and for this purpose to develop and implement a supervisory programme:
(c)
provide guidance to the reporting entities it supervises in order to assist those entities to comply with this Act and regulations:
(d)
investigate the reporting entities it supervises and enforce compliance with this Act and regulations:
(e)
co-operate through the AML/CFT co-ordination committee (or any other mechanism that may be appropriate) with domestic and international counterparts to ensure the consistent, effective, and efficient implementation of this Act.
132 Powers
(1)
An AML/CFT supervisor has all the powers necessary to carry out its functions under this Act or regulations.
(2)
Without limiting the power conferred by subsection (1), an AML/CFT supervisor may,—
(a)
on notice, require production of, or access to, all records, documents, or information relevant to its supervision and monitoring of reporting entities for compliance with this Act; and
(b)
conduct on-site inspections in accordance with section 133; and
(c)
provide guidance to the reporting entities it supervises by—
(i)
producing guidelines; and
(ii)
preparing codes of practice in accordance with section 63; and
(iii)
providing feedback on reporting entities’ compliance with obligations under this Act and regulations; and
(iv)
undertaking any other activities necessary for assisting reporting entities to understand their obligations under this Act and regulations, including how best to achieve compliance with those obligations; and
(d)
co-operate and share information in accordance with sections 46, 48, and 137 to 140 by communicating or making arrangements to communicate information obtained by the AML/CFT supervisor in the performance of its functions and the exercise of its powers under this Act; and
(e)
in accordance with this Act and any other enactment, initiate and act on requests from any overseas counterparts; and
(f)
approve the formation of, and addition of members to, designated business groups.
(3)
An AML/CFT supervisor may only use the powers conferred on it under this Act and regulations for the purposes of this Act.
(4)
Nothing in this section requires any person to disclose any privileged communication.
Section 132(1): amended, on 11 August 2017, by section 47(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 132(4): inserted, on 11 August 2017, by section 47(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
133 Matters relating to conduct of on-site inspections
(1)
An AML/CFT supervisor may, at any reasonable time, enter and remain at any place (other than a dwellinghouse or a marae) for the purpose of conducting an on-site inspection of a reporting entity.
(2)
During an inspection, an AML/CFT supervisor may require any employee, officer, or agent of the reporting entity to answer questions relating to its records and documents and to provide any other information that the AML/CFT supervisor may reasonably require for the purpose of the inspection.
(3)
A person is not required to answer a question asked by an AML/CFT supervisor under this section if the answer would or could incriminate the person.
(4)
Before an AML/CFT supervisor requires a person to answer a question, the person must be informed of the right specified in subsection (3).
(5)
Nothing in this section requires any person to disclose any privileged communication (as defined in section 42).
Section 133(5): amended, on 11 August 2017, by section 48 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
134 Delegation of supervisory function and powers
(1)
An AML/CFT supervisor may delegate the following function and powers to a person who, by reason of his or her training or experience, is suitably qualified to perform that function and exercise those powers:
(a)
its function under section 131(d) of investigating the reporting entities it supervises:
(b)
its powers under section 132(2)(a) and (b), for the purpose only of performing the function of investigation under section 131(d).
(2)
A delegation under subsection (1)—
(a)
must be made by the chief executive of the AML/CFT supervisor in writing; and
(b)
may be made subject to any restrictions and conditions that the AML/CFT supervisor thinks fit; and
(c)
may be revoked at any time by written notice to the delegate.
(3)
A person to whom a function or power of the AML/CFT supervisor is delegated under this section—
(a)
may, unless the delegation provides otherwise, perform the function or exercise the power in the same manner, and with the same effect, as if the delegate were the AML/CFT supervisor; and
(b)
must disclose to the AML/CFT supervisor and manage appropriately any conflict of interest that might arise in relation to the performance of the function or exercise of the power; and
(c)
must not disclose any information obtained under subsection (1) other than to the AML/CFT supervisor.
Section 134(1)(b): amended, on 5 December 2013, by section 10 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106).
135 Authority to act as delegate
(1)
The chief executive of the AML/CFT supervisor must issue a written authorisation to every person to whom a delegation is made under section 134 stating—
(a)
the name of the authorised person; and
(b)
the function that he or she is authorised to perform; and
(c)
the powers that he or she may exercise.
(2)
The delegate, when acting in the capacity of a delegate of the AML/CFT supervisor,—
(a)
must carry on him or her—
(i)
the written authorisation provided under subsection (1); and
(ii)
evidence of his or her identity; and
(b)
must produce the written authorisation and evidence referred to in paragraph (a), if requested to do so by a reporting entity that is subject to the delegated function or powers being performed or exercised by the delegate.
(3)
The delegate must return the written authorisation to the AML/CFT supervisor as soon as his or her delegation is revoked.
136 Effect of delegation
(1)
No delegation under section 134—
(a)
affects or prevents the performance of any function or the exercise of any power by the AML/CFT supervisor; or
(b)
affects the responsibility of the AML/CFT supervisor for the performance of its functions and the exercise of its powers.
(2)
Every person to whom a function or power is delegated under section 134 has the same immunities in relation to the performance of that function or the exercise of that power as the AML/CFT supervisor that made the delegation.
Use and disclosure of information
137 Power to use information obtained as AML/CFT supervisor in other capacity and vice versa
(1)
This section applies to information other than personal information.
(2)
The Reserve Bank may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under the Reserve Bank of New Zealand Act 1989, the Insurance (Prudential Supervision) Act 2010, and the Non-bank Deposit Takers Act 2013 for the purpose of exercising its powers or performing its functions and duties under this Act as an AML/CFT supervisor.
(3)
The Reserve Bank may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under this Act as an AML/CFT supervisor for the purpose of exercising its powers or performing its functions and duties under the Reserve Bank of New Zealand Act 1989, the Insurance (Prudential Supervision) Act 2010, and the Non-bank Deposit Takers Act 2013.
(4)
The Financial Markets Authority may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under the Financial Markets Authority Act 2011, the Financial Markets Conduct Act 2013, and the Financial Advisers Act 2008 for the purpose of exercising its powers or performing its functions and duties under this Act as an AML/CFT supervisor.
(5)
The Financial Markets Authority may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under this Act as an AML/CFT supervisor for the purpose of exercising its powers or performing its functions and duties under the Financial Markets Authority Act 2011, the Financial Markets Conduct Act 2013, and the Financial Advisers Act 2008.
(6)
The Department of Internal Affairs may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under the Gambling Act 2003, the Racing Act 2003, and the Charities Act 2005 for the purpose of exercising its powers or performing its functions and duties under this Act as an AML/CFT supervisor.
(7)
The Department of Internal Affairs may use any information obtained or held by it in the exercise of its powers or the performance of its functions and duties under this Act as an AML/CFT supervisor for the purpose of exercising its powers or performing its functions and duties under the Gambling Act 2003, the Racing Act 2003, and the Charities Act 2005.
Section 137(2): amended, on 11 August 2017, by section 49(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 137(3): amended, on 11 August 2017, by section 49(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 137(4): substituted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).
Section 137(4): amended, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 137(5): substituted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).
Section 137(5): amended, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 137(6): amended, on 11 August 2017, by section 49(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 137(7): amended, on 11 August 2017, by section 49(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
138 Restriction on power to use information under section 137
An AML/CFT supervisor may only use information obtained under section 137 if the person providing the information was advised of the purpose or purposes for which the information was obtained at the time he or she provided that information.
139 Power to disclose information
(1)
The Commissioner, the New Zealand Customs Service, or an AML/CFT supervisor may disclose any information (that is not personal information) supplied or obtained by it in the exercise of its powers or the performance of its functions and duties under this Act to any government agency or any regulator for law enforcement purposes if it is satisfied that the agency or regulator has a proper interest in receiving such information.
(2)
If not authorised under any other provision of this Act, disclosure of any information between a government agency, a regulator, the Commissioner, the New Zealand Customs Service, an AML/CFT supervisor, or reporting entities, or to or from any of those parties, may be made for law enforcement purposes in accordance with regulations made under section 139A.
(3)
Nothing in this section limits the Privacy Act 1993 (which permits certain disclosures in addition to those authorised under this section).
Section 139 heading: amended, on 11 August 2017, by section 50(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 139(1): amended, on 11 August 2017, by section 50(2)(a) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 139(1): amended, on 11 August 2017, by section 50(2)(b) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 139(2): inserted, on 11 August 2017, by section 50(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 139(3): inserted, on 11 August 2017, by section 50(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
139A Regulations relating to information sharing
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for the purpose of section 139(2)—
(a)
specifying the type of information that may or may not be disclosed:
(b)
prescribing the conditions under which the information may be disclosed and the conditions applying to the use of that information (for example, conditions relating to storage, copying, access, and the return of information).
(2)
Before recommending the making of regulations under this section, the Minister must consult—
(a)
the agencies and regulators that may be affected by the proposed regulations; and
(b)
the Privacy Commissioner; and
(c)
any other person or body that the Minister considers may be affected by the proposed regulations.
Section 139A: inserted, on 11 August 2017, by section 51 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
140 Power to use and disclose information supplied or obtained under other enactments for AML/CFT purposes
(1)
A government agency or an AML/CFT supervisor may disclose to any other AML/CFT supervisor or government agency any information supplied or obtained under an enactment listed in subsection (2) if the disclosing entity has reasonable grounds to believe that the disclosure of that information is necessary or desirable for the purpose of ensuring compliance with this Act and regulations.
(2)
The enactments referred to in subsection (1) are—
(a)
the Charities Act 2005:
(b)
the Companies Act 1993:
(d)
(e)
(f)
(g)
(h)
Parts 1 to 7 of the Intelligence and Security Act 2017:
(j)
the Gambling Act 2003:
(k)
(l)
the Income Tax Act 2007:
(n)
(p)
(q)
(r)
the Racing Act 2003:
(s)
(t)
(v)
(w)
(x)
any other Act prescribed by regulations.
Section 140(1): amended, on 11 August 2017, by section 52(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 140(2): replaced, on 11 August 2017, by section 52(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 140(2)(h): replaced, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).
141 Enforcement officers
(1)
For the purposes of this Act, an AML/CFT supervisor may appoint any employee as an enforcement officer, on a permanent or temporary basis, to exercise the powers conferred on the AML/CFT supervisor by this Act.
(2)
An AML/CFT supervisor must issue its enforcement officers with an identity card.
(3)
An enforcement officer must—
(a)
carry his or her identity card at all times when acting as an enforcement officer under this Act or regulations; and
(b)
return his or her identity card to the relevant AML/CFT supervisor immediately upon ceasing to be an enforcement officer.
Financial intelligence functions of Commissioner
142 Financial intelligence functions of Commissioner
The financial intelligence functions of the Commissioner are to—
(a)
receive suspicious activity reports:
(b)
produce guidance material, including—
(i)
typologies of money laundering and financing of terrorism transactions:
(ii)
information for reporting entities on their obligations to report suspicious activities and prescribed transactions, and how to meet those obligations:
(c)
provide feedback to reporting entities on the quality and timeliness of their suspicious activity reporting:
(d)
enforce requirements to provide suspicious activity reports:
(e)
analyse suspicious activity reports to assess whether any should be referred to investigative branches of the New Zealand Police and to other law enforcement agencies for criminal investigation:
(f)
access, directly or indirectly, on a timely basis the financial, administrative, and law enforcement information that the Commissioner requires to properly undertake his or her financial intelligence functions, including the analysis of suspicious activity reports and prescribed transaction reports:
(g)
refer to investigative branches of the New Zealand Police and to other law enforcement agencies any suspicious activity reports and prescribed transaction reports that, in the view of the Commissioner, indicate grounds for criminal investigation:
(h)
refer suspicious activity reports and prescribed transaction reports and feedback provided to reporting entities on any suspicious activity reports and prescribed transaction reports to AML/CFT supervisors:
(i)
receive, analyse, and (if appropriate) refer to law enforcement agencies any cash reports:
(j)
receive, analyse, and (if appropriate) refer to law enforcement agencies any suspicious property reports:
(ja)
receive, analyse, and (if appropriate) refer to investigative branches of the New Zealand Police and to other law enforcement agencies, any prescribed transaction reports:
(k)
produce risk assessments relating to money laundering offences and the financing of terrorism to be used by the Ministry, the Ministry of Justice, AML/CFT supervisors, and the New Zealand Customs Service:
(ka)
receive and analyse financial intelligence relating to law enforcement purposes from international authorities authorised to perform functions broadly equivalent to the Commissioner’s financial intelligence functions:
(l)
co-operate with the Ministry, the Ministry of Justice, AML/CFT supervisors, the New Zealand Customs Service, regulators, and any other relevant agencies to help ensure the effective implementation of the requirements under this Act and regulations.
Section 142(a): amended, on 11 August 2017, by section 53(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(b)(ii): replaced, on 11 August 2017, by section 53(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(c): amended, on 11 August 2017, by section 53(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(d): amended, on 11 August 2017, by section 53(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(e): amended, on 11 August 2017, by section 53(5) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(f): amended, on 11 August 2017, by section 53(6) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(f): amended, on 1 July 2017, by section 22(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 142(g): amended, on 11 August 2017, by section 53(7) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(g): amended, on 1 July 2017, by section 22(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 142(h): amended, on 11 August 2017, by section 53(8) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(h): amended, on 1 July 2017, by section 22(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 142(ja): inserted, on 1 July 2017, by section 22(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 142(ka): inserted, on 11 August 2017, by section 53(9) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 142(l): amended, on 11 August 2017, by section 53(10) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
143 Powers relating to financial intelligence functions of Commissioner
(1)
The Commissioner may—
(a)
order production of or access to all records, documents, or information from any reporting entity that is relevant to analysing information received by the Commissioner under this Act, with or without a court order; and
(b)
share suspicious activity reports, prescribed transaction reports, cash reports, suspicious property reports, and other financial information and intelligence with regulators and domestic and international authorities for the purposes of this Act and regulations.
(2)
Nothing in this section requires any person to disclose any privileged communication.
Section 143(1)(a): amended, on 11 August 2017, by section 54(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 143(1)(b): amended, on 11 August 2017, by section 54(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 143(1)(b): amended, on 11 August 2017, by section 54(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 143(1)(b): amended, on 1 July 2017, by section 23(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 143(2): inserted, on 11 August 2017, by section 54(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
144 Delegation of powers of Commissioner
(1)
The Commissioner may from time to time in writing, either generally or particularly, delegate to a constable of a level of position not less than inspector or an equally senior or more senior Police employee the Commissioner’s powers under section 143(1)(a).
(2)
Where any constable exercises any power conferred under subsection (1), that constable must, within 5 days after the day on which the constable exercises the power, give the Commissioner a written report on the exercise of that power and the circumstances in which it was exercised.
(3)
A constable who purports to perform a power under a delegation—
(a)
is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and
(b)
must produce evidence of his or her authority to do so, if reasonably requested to do so.
(4)
Every delegation under this section is revocable at will and does not prevent the exercise of any power by the Commissioner.
Section 144(1): amended, on 11 August 2017, by section 55 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
145 Guidelines relating to reporting of suspicious activities
(1)
Subject to section 146, the Commissioner must issue, in respect of each kind of reporting entity to which this Act applies, guidelines—
(a)
setting out any features of a transaction or other activity that may give rise to a suspicion that the transaction or other activity is or may be—
(i)
relevant to the investigation or prosecution of any person for a money laundering offence; or
(ii)
relevant to the enforcement of the Misuse of Drugs Act 1975; or
(iii)
relevant to the enforcement of the Terrorism Suppression Act 2002; or
(iv)
relevant to the enforcement of the Proceeds of Crime Act 1991 or the Criminal Proceeds (Recovery) Act 2009; or
(v)
relevant to the investigation or prosecution of an offence within the meaning of section 243(1) of the Crimes Act 1961; and
(b)
setting out any circumstances in which a suspicious activity report relating to such an activity may be made orally in accordance with section 41(2), and the procedures for making such an oral report.
(2)
Suspicious transaction or other activity guidelines must be issued in such manner as the Commissioner from time to time determines.
(3)
The Commissioner may issue an amendment or revocation of any suspicious transaction or other activity guidelines.
(4)
Without limiting subsection (1), suspicious transaction or other activity guidelines issued under this section may relate to 1 or more kinds of reporting entities, and such guidelines may make different provision for different kinds of reporting entities and different kinds of transactions or other activities.
Compare: 1996 No 9 s 24
Section 145 heading: amended, on 11 August 2017, by section 56(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(1)(a): amended, on 11 August 2017, by section 56(2)(a) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(1)(a): amended, on 11 August 2017, by section 56(2)(b) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(1)(a)(v): amended, on 1 July 2017, by section 24 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 145(1)(b): amended, on 11 August 2017, by section 56(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(2): amended, on 11 August 2017, by section 56(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(3): amended, on 11 August 2017, by section 56(5) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(4): amended, on 11 August 2017, by section 56(6)(a) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 145(4): amended, on 11 August 2017, by section 56(6)(b) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
146 Consultation on proposed guidelines
(1)
The Commissioner must, before issuing any suspicious transaction or other activity guidelines,—
(a)
consult with, and invite representations from, the Privacy Commissioner under the Privacy Act 1993, and must have regard to any such representations; and
(b)
give public notice of the Commissioner’s intention to issue the guidelines, which notice must contain a statement—
(i)
indicating the Commissioner’s intention to issue the guidelines; and
(ii)
inviting reporting entities that are likely to be affected by the proposed guidelines, and industry organisations that are representative of those reporting entities, to express to the Commissioner, within any reasonable period that is specified in the notice, their interest in being consulted in the course of the development of the guidelines; and
(c)
consult with, and invite representations from, those reporting entities and industry organisations who express such an interest, and must have regard to any such representations.
(2)
Nothing in subsection (1) prevents the Commissioner from adopting any additional means of publicising the proposal to issue any suspicious transaction or other activity guidelines or of consulting with interested parties in relation to such a proposal.
(3)
This section applies to any amendment or revocation of any suspicious transaction or other activity guidelines.
Compare: 1996 No 9 s 25
Section 146(1): amended, on 11 August 2017, by section 57(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 146(2): amended, on 11 August 2017, by section 57(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 146(3): amended, on 11 August 2017, by section 57(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
147 Availability of guidelines
On a request by any reporting entity in respect of which any suspicious transaction or other activity guidelines are for the time being in force, or by any industry organisation that represents the reporting entity, the Commissioner must, without charge,—
(a)
make those guidelines, and all amendments to those guidelines, available for inspection by that reporting entity or, as the case requires, that industry organisation at Police National Headquarters; and
(b)
provide copies of those guidelines, and all amendments to those guidelines, to that reporting entity or, as the case requires, that industry organisation.
Compare: 1996 No 9 s 26
Section 147: amended, on 11 August 2017, by section 58 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
148 Review of guidelines
(1)
The Commissioner must review from time to time any suspicious transaction or other activity guidelines for the time being in force.
(2)
Sections 145 and 146 apply, with all necessary modifications, in relation to any such review as if the review were a proposal to issue suspicious transaction or other activity guidelines.
Compare: 1996 No 9 s 27
Section 148(1): amended, on 11 August 2017, by section 59(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 148(2): amended, on 11 August 2017, by section 59(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Co-ordination
149 Role of Ministry
The Ministry, in consultation with other agencies with AML/CFT roles and functions, is responsible for advising on the overall effectiveness and efficiency of the AML/CFT regulatory system, including—
(a)
advising the Minister on outcomes and objectives for AML/CFT regulation and how best to achieve these (including links to other Government initiatives relevant to the purposes of this Act); and
(b)
monitoring, evaluating, and advising the Minister on the performance of the AML/CFT regulatory system in achieving the Government’s outcomes and objectives for it; and
(c)
advising the Minister on any changes necessary to the AML/CFT regulatory system to improve its effectiveness; and
(d)
administering the relevant AML/CFT legislation.
150 AML/CFT co-ordination committee
(1)
The chief executive must establish an AML/CFT co-ordination committee consisting of—
(a)
a representative from the Ministry; and
(b)
a representative from the New Zealand Customs Service; and
(c)
every AML/CFT supervisor; and
(d)
a representative of the Commissioner; and
(e)
such other persons as are invited from time to time by the chief executive in accordance with subsection (2).
(2)
Any person invited under subsection (1)(e) must be employed in a government agency.
(3)
The chair of the AML/CFT co-ordination committee is the chief executive.
151 Role of AML/CFT co-ordination committee
The role of the AML/CFT co-ordination committee is to ensure that the necessary connections between the AML/CFT supervisors, the Commissioner, and other agencies are made in order to ensure the consistent, effective, and efficient operation of the AML/CFT regulatory system.
152 Functions
The functions of the AML/CFT co-ordination committee are to—
(a)
facilitate necessary information flows between the AML/CFT supervisors, the Commissioner, and other agencies involved in the operation of the AML/CFT regulatory system:
(b)
facilitate the production and dissemination of information on the risks of money-laundering offences and the financing of terrorism in order to give advice and make decisions on AML/CFT requirements and the risk-based implementation of those requirements:
(c)
facilitate co-operation amongst AML/CFT supervisors and consultation with other agencies in the development of AML/CFT policies and legislation:
(d)
facilitate consistent and co-ordinated approaches to the development and dissemination of AML/CFT guidance materials and training initiatives by AML/CFT supervisors and the Commissioner:
(e)
facilitate good practice and consistent approaches to AML/CFT supervision between the AML/CFT supervisors and the Commissioner:
(f)
provide a forum for examining any operational or policy issues that have implications for the effectiveness or efficiency of the AML/CFT regulatory system.
Subpart 2—Miscellaneous provisions
Regulations
153 Regulations
The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
(a)
prescribing requirements (generic and sector-specific) for standard, simplified, enhanced, and ongoing customer due diligence and any other AML/CFT requirements, including, but not limited to, the following:
(i)
information to be provided or obtained for the purposes of identification and verification:
(ii)
the circumstances in which a particular type of customer due diligence must be conducted:
(iii)
specifying entities or classes of entities, or products, services, or transactions for which a reporting entity may conduct simplified customer due diligence:
(iv)
the conditions in which third parties may be relied on to conduct customer due diligence:
(v)
the conditions on which a member of a designated business group may adopt an AML/CFT programme of another member of the group and share and use the policies, controls, and procedures of that programme:
(vi)
the circumstances in which corporations are deemed to be affiliated:
(vii)
the factors that a reporting entity must have regard to when assessing risk:
(b)
prescribing instruments to be bearer-negotiable instruments for the purposes of this Act:
(c)
prescribing the forms of, and the information to be included in, applications, warrants, reports, and other documents required under this Act:
(d)
prescribing amounts or thresholds that are required to be prescribed for the purposes of this Act or regulations (and 1 or more amounts or thresholds may be prescribed for the purposes of different provisions of this Act or regulations):
(e)
prescribing the information to be included in records and the manner in which records are to be kept by reporting entities, or any specified class or classes of reporting entities:
(f)
prescribing other identifying information that allows a transaction to be traced back to the originator for the purposes of section 27(1):
(g)
prescribing the manner in which any notice, report, or other document required by this Act is to be given or served:
(h)
prescribing for the form of a formal warning and the manner in which it must be issued:
(i)
specifying Acts for which disclosure of personal information may be made by an AML/CFT supervisor for the purposes of the detection, investigation, and prosecution of offences under the specified Act:
(j)
providing for any other matters contemplated by this Act or necessary for its administration or necessary for giving it full effect.
Compare: 1996 No 9 s 56
Section 153(d): replaced, on 11 August 2017, by section 60 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
154 Regulations relating to application of Act
(1)
The Governor-General may, by Order in Council on the recommendation of the Minister, make regulations for the following purposes:
(a)
exempting or providing for the exemption of any transaction, product, or service or class of transactions, products, or services from all or any of the provisions of this Act:
(ab)
exempting or providing for the exemption of any financial activity or class of financial activities described in the definition of financial institution in section 5 from all or any of the provisions of this Act:
(ac)
declaring an entity or a class of entities to be an approved entity or approved class of entities for the purposes of section 33(3A):
(b)
excluding certain relationships or banking services from the application of section 29 (which relates to correspondent banking relationships):
(c)
exempting a reporting entity from its obligation to obtain some or all of the information set out in section 27(1) in relation to a specified transfer or transaction:
(ca)
exempting a reporting entity or a class of reporting entity from the obligation to report under section 48A in relation to international wire transfers:
(d)
exempting certain movements of cash from the application of subpart 6 of Part 2:
(e)
prescribing threshold values for the purposes of sections 68 and 69 and the person or class of persons, transaction or class of transactions, financial activity or class of financial activities to which that threshold value applies:
(f)
declaring an account or arrangement to be, or not to be, a facility and the circumstances and conditions in which an account or arrangement is to be, or not to be, a facility for the purposes of this Act:
(g)
declaring a person or class of persons to be, or not to be, a reporting entity and the circumstances and conditions in which a person or class of persons is to be, or not to be, a reporting entity for the purposes of this Act:
(ga)
declaring an activity or a class of activities to be, or not to be, an occasional activity and the circumstances and conditions in which an activity or a class of activities is to be, or not to be, an occasional activity for the purposes of the Act:
(h)
declaring a transaction or class of transactions to be, or not to be, an occasional transaction and the circumstances and conditions in which a transaction or class of transactions is to be, or not to be, an occasional transaction for the purposes of this Act:
(ha)
declaring an activity or a class of activities to be, or not to be, an occasional activity for the purposes of this Act:
(i)
declaring a transfer or transaction or a class of transfers or transactions not to be a wire transfer and the circumstances and conditions in which a transfer or transaction or class of transfers or transactions is not a wire transfer for the purposes of this Act:
(j)
declaring a person or class of persons to be, or not to be, a customer and the circumstances and conditions in which a person or class of persons is to be, or not to be, a customer for the purposes of this Act:
(k)
declaring an entity or class of entities (whether domestic or overseas) to be eligible for inclusion in a designated business group:
(l)
declaring a person or class of persons to be, or not to be, a financial institution for the purposes of this Act.
(2)
The Minister must, before making any recommendation, have regard to—
(a)
the purposes of this Act; and
(b)
the risk of money laundering and the financing of terrorism; and
(c)
the impact on the prevention, detection, investigation, and prosecution of offences; and
(d)
the level of regulatory burden on a reporting entity; and
(e)
whether the making of the regulation would create an unfair advantage for a reporting entity or would disadvantage other reporting entities; and
(f)
the overall impact that making the regulation would have on the integrity of, and compliance with, the AML/CFT regulatory regime.
(3)
The Minister must also, before making any recommendation,—
(a)
do everything reasonably possible on the Minister’s part to advise all persons who in the Minister’s opinion will be affected by any regulations made in accordance with the recommendation, or representatives of those persons, of the proposed terms of the recommendation and of the reasons for it; and
(b)
give such persons or their representatives a reasonable opportunity to consider the recommendation and to make submissions on it to the Minister, and the Minister must consider those submissions; and
(c)
[Repealed](d)
make copies of the recommendation available for inspection by any person who so requests before any regulations are made in accordance with the recommendation.
(4)
Failure to comply with subsection (3) does not affect the validity of any regulations made under this section.
(5)
[Repealed]Section 154(1)(ab): inserted, on 11 August 2017, by section 61(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(1)(ac): inserted, on 11 August 2017, by section 61(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(1)(ca): inserted, on 1 July 2017, by section 25 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96).
Section 154(1)(ga): inserted, on 11 August 2017, by section 68 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(1)(ha): inserted, on 11 August 2017, by section 61(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(1)(k): amended, on 12 December 2012, by section 8 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2012 (2012 No 98).
Section 154(2)(a): amended, on 11 August 2017, by section 61(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(3)(c): repealed, on 11 August 2017, by section 61(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 154(5): repealed, on 11 August 2017, by section 61(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
155 Regulations relating to countermeasures
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for, or in relation to, prohibiting or regulating the entering into of transactions or business relationships between a reporting entity and any other person.
(2)
Regulations made for the purposes of subsection (1)—
(a)
may be of general application; or
(b)
may be limited by reference to any or all of the following:
(i)
a specified transaction:
(ii)
a specified party:
(iii)
a specified overseas country.
(3)
The Governor-General may, by Order in Council, declare a country outside New Zealand to be a prescribed overseas country for the purposes of this section.
(4)
Any regulations made under subsection (1) expire on the day that is 5 years after the date on which regulations come into force.
Compare: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 s 102 (Aust)
156 Consultation not required for consolidation of certain regulations and minor amendments
The Minister is not required to comply with section 154(3) in respect of the making of any regulations to the extent that regulations—
(a)
revoke any regulations made under section 154 and, at the same time, consolidate the revoked regulations, so that they have the same effect as those revoked regulations; or
(b)
make minor amendments to regulations.
Compare: 1996 No 9 s 56A
Review provision
Heading: inserted, on 11 August 2017, by section 62 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
156A Review of operation of Act
(1)
The Minister of Justice must, not later than 1 July 2021, refer to the Ministry of Justice for consideration the following matters:
(a)
the operation of the provisions of this Act since the commencement of this section; and
(b)
whether any amendments to this Act are necessary or desirable.
(2)
The Ministry must report on those matters to the Minister of Justice within 1 year of the date on which the reference occurs.
(3)
The Minister of Justice must present a copy of the report provided under this section to the House of Representatives as soon as practicable after receiving it.
Section 156A: inserted, on 11 August 2017, by section 62 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Ministerial exemptions
157 Minister may grant exemptions
(1)
The Minister may exempt either or both of the following from the requirements of all or any of the provisions of this Act:
(a)
a reporting entity or class of reporting entities:
(b)
a transaction or class of transactions.
(1A)
The Minister may grant an exemption—
(a)
to an individual reporting entity on application by that entity in a manner and form approved by the chief executive (if any):
(b)
to a class of reporting entities on the Minister’s own motion or on application by 1 or more reporting entities made in a manner or form approved by the chief executive (if any).
(2)
The Minister may grant the exemption—
(a)
unconditionally; or
(b)
subject to any conditions the Minister thinks fit.
(3)
Before deciding to grant an exemption and whether to attach any conditions to the exemption, the Minister must have regard to the following:
(a)
[Repealed](b)
the intent and purpose of this Act and any regulations:
(c)
the risk of money laundering and the financing of terrorism associated with the reporting entity, including, where appropriate, the products and services offered by the reporting entity and the circumstances in which the products and services are provided:
(d)
the impacts on prevention, detection, investigation, and prosecution of offences:
(e)
the level of regulatory burden to which the reporting entity would be subjected in the absence of an exemption:
(f)
whether the exemption would create an unfair advantage for the reporting entity or disadvantage third party reporting entities:
(g)
the overall impact that the exemption would have on the integrity of, and compliance with, the AML/CFT regulatory regime.
(4)
An exemption under this section is a disallowable instrument but not a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
(5)
A class exemption under this section is a legislative instrument and must be published under section 6 of the Legislation Act 2012 and, for this purpose, class exemption—
(a)
means an exemption of general application that applies to a class of reporting entities or transactions; but
(b)
does not include an exemption granted in relation to a particular reporting entity or transaction.
(6)
An exemption under this section that is not a class exemption under subsection (5) must, as soon as practicable after being granted, be—
(a)
published on an Internet site maintained by or on behalf of the chief executive; and
(b)
notified in the Gazette; and
(c)
made available in printed form for purchase on request by members of the public.
(7)
A notification in the Gazette for the purpose of subsection (6)(b) does not have to incorporate the exemption.
Section 157(1): amended, on 11 August 2017, by section 63(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(1)(a): amended, on 11 August 2017, by section 63(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(1A): inserted, on 11 August 2017, by section 63(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(3)(a): repealed, on 11 August 2017, by section 63(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(4): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Section 157(4): amended, on 11 August 2017, by section 63(5) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(5): inserted, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Section 157(5): amended, on 11 August 2017, by section 63(6) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Section 157(6): inserted, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Section 157(7): inserted, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
158 Minister must consult before granting exemption
Before granting an exemption under section 157, the Minister must consult with—
(a)
the Ministers responsible for the AML/CFT supervisors; and
(b)
any other persons the Minister considers appropriate having regard to those matters listed in section 157(3).
159 Requirements relating to exemptions
(1)
The exemption must include an explanation of the reason for granting the exemption.
(2)
The exemption—
(a)
must be granted for a period specified by the Minister but that period must not be more than 5 years; and
(b)
may, at any time, be varied or revoked by the Minister.
(3)
[Repealed]Section 159(3): repealed, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Resolution of disputes about privilege
Heading: inserted, on 11 August 2017, by section 64 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
159A Procedure for testing assertions that document privileged
(1)
If any person refuses to disclose any information or document on the grounds that it is a privileged communication and that section 132(4), 133(5), or 143(3) applies, the Commissioner, an AML/CFT supervisor, or that person may apply to a District Court Judge for an order determining whether or not the claim of privilege is valid.
(2)
For the purposes of determining that application, the District Court Judge may require the information or document to be produced to the District Court Judge.
Section 159A: inserted, on 11 August 2017, by section 64 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Transitional and savings provisions[Repealed]
Heading: repealed, on 11 August 2017, by section 65 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
160 Transitional and savings provisions
[Repealed]Section 160: repealed, on 11 August 2017, by section 65 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Consequential amendments, repeals, and revocation
161 Amendments to other enactments
(1)
The enactment specified in Part 1 of Schedule 2 is amended in the manner indicated in that part of that schedule (being consequential amendments relating to the bringing into force of provisions relating to cross-border transportation of cash).
(2)
The enactments specified in Part 2 of Schedule 2 are amended in the manner indicated in that schedule (being consequential amendments to other enactments).
(3)
The regulations specified in Part 3 of Schedule 2 are revoked.
162 Amendment to Financial Transactions Reporting Act 1996 consequential on bringing into force of Part 2
[Repealed]Section 162: repealed, on 11 August 2017, by section 66 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
163 Amendment to Financial Transactions Reporting Act 1996 relating to cross-border transportation of cash
[Repealed]Section 163: repealed, on 11 August 2017, by section 66 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Schedule 1 Transitional savings, and related provisions
Schedule 1 heading: amended, on 11 August 2017, by section 67(1) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Schedule 1 heading: amended, on 11 August 2017, by section 67(2) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
Part 1 Transitional, savings, and related provisions relating to Financial Transactions Reporting Act 1996
Schedule 1 Part 1 heading: inserted, on 11 August 2017, by section 67(3) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
1 Offences and breaches of Financial Transactions Reporting Act 1996
(1)
This clause applies to an offence under, or a breach of, the Financial Transactions Reporting Act 1996 that was committed before the commencement of this Act.
(2)
If this clause applies, then for the purpose of doing the things specified in subclause (3), the Financial Transactions Reporting Act 1996 continues to have effect as if this Act had not been enacted.
(3)
The things referred to in subclause (2) are as follows:
(a)
investigating the offence or breach:
(b)
commencing, continuing, or completing proceedings for the offence or breach:
(c)
imposing a penalty for the offence or breach (which, for the avoidance of doubt, must be the same as the penalty that applied to the offence or the breach before this Act was enacted).
2 Barred proceedings
Nothing in this Act enables any proceedings to be brought that were barred before the commencement of this Act.
3 Pending proceedings
Any proceedings that have been commenced under the Financial Transactions Reporting Act 1996 before the commencement of this Act may be continued and completed after that commencement as if this Act had not been enacted, and the Financial Transactions Reporting Act 1996 applies accordingly.
Part 2 Transitional provisions relating to Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017
Schedule 1 Part 2: inserted, on 11 August 2017, by section 67(4) of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35).
4 Application for exemption
Any application for an exemption under section 157 that has been lodged but not determined by the Minister, immediately before the commencement of this clause, must be determined by the Minister under section 157 (as amended by section 63 of the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (the 2017 Act)).
Suspicious transaction reports continue until 1 July 2018 or earlier date appointed by Order in Council
5 Reporting entity must continue to report suspicious transactions
Despite section 25 of the 2017 Act, in the period between the commencement of this clause and 1 July 2018 or an earlier date appointed by the Governor-General by Order in Council,—
(a)
a reporting entity must comply with sections 40, 41, and 43 to 48 (as they read before the commencement of section 25 of the 2017 Act) (which relate to suspicious transaction reports); and
(b)
a reporting entity and any other person may rely on section 42 of the principal Act (as inserted by section 25 of the 2017 Act); and
(c)
a reporting entity must not comply with sections 39A, 41, and 43 to 48 (as inserted by section 25 of the 2017 Act); and
(d)
for the purposes of giving effect to paragraphs (a) and (c), section 42 (as inserted by section 25 of the 2017 Act) and sections 139, 140, 142, 143, 144, 145, 146, 147, 148, 153, and 154 (as amended or inserted by sections 50 to 61 of the 2017 Act) apply with any necessary modifications; and
(e)
subject to paragraphs (b) and (d), for the purposes of, and to the extent necessary for, giving effect to paragraphs (a) and (c), this Act (as it read before the enactment of the 2017 Act) continues in force.
6 Treatment of existing suspicious transaction reports
If, on the commencement of section 25, the Commissioner of Police holds 1 or more suspicious transaction reports given to the Commissioner before the commencement of section 50, the provisions of this Act (as amended by the 2017 Act) apply to those reports as if they were suspicious activity reports.
7 Exemption powers apply immediately to new reporting entities
Any reporting entity or class of reporting entity to which, under section 6(3), this Act does not yet apply but will apply at a future date may, on or after the commencement of this clause, apply for an exemption under section 157, and the powers and duties conferred by sections 157 to 159 in relation to applications for exemptions apply immediately.
Schedule 2 Consequential amendments
Part 1Amendments to Financial Transactions Reporting Act 1996 relating to cross-border transportation of cash
Section 2(1)
Definitions of cash report and Customs officer: repeal.
Definition of cash: omit “except in Part 5 of this Act,”
.
Part 2Amendments to other enactments
Crimes Act 1961 (1961 No 43)
Section 244: insert after paragraph (b):
(ba)
the enforcement or intended enforcement of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009; or
Criminal Proceeds (Recovery) Act 2009 (2009 No 8)
Definition of financial institution in section 5(1): repeal and substitute:
financial institution means either a person within the meaning of financial institution as defined in section 3 of the Financial Transactions Reporting Act 1996 or as defined in section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009
Customs and Excise Act 1996 (1996 No 27)
Section 166A(b)(ii): repeal and substitute:
(ii)
subpart 6 of Part 2 and sections 114 and 115 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009; and
Section 166C(4): insert after paragraph (b):
(ba)
Anti-Money Laundering and Countering Financing of Terrorism Act 2009:
Financial Transactions Reporting Act 1996 (1996 No 9)
Long Title: insert “the Terrorism Suppression Act 2002 and”
after “enforcement of”
.
Paragraph (b) of the Long Title: repeal.
Section 15(1)(b): insert after subparagraph (i):
(ia)
that the transaction or proposed transaction is or may be relevant to the enforcement of the Terrorism Suppression Act 2002; or
Section 16: insert after paragraph (a):
(ab)
that the transaction or proposed transaction is or may be relevant to the enforcement of the Terrorism Suppression Act 2002; or
Section 21(2): insert after paragraph (a):
(ab)
the enforcement of the Terrorism Suppression Act 2002:
Section 22(1)(b): insert after subparagraph (i):
(ia)
that the transaction or proposed transaction is or may be relevant to the enforcement of the Terrorism Suppression Act 2002; or
Section 24(1)(a): insert after subparagraph (i):
(ia)
that the transaction or proposed transaction is or may be relevant to the enforcement of the Terrorism Suppression Act 2002; or
Section 28: insert after paragraph (d):
(da)
the enforcement of the Terrorism Suppression Act 2002:
Section 56(1)(b): omit “Parts 2 and 5 of this Act”
and substitute “Part 2”
.
Misuse of Drugs Act 1975 (1975 No 116)
Section 12B(6): insert after paragraph (b):
(ba)
the enforcement or intended enforcement of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009; or
Mutual Assistance in Criminal Matters Act 1992 (1992 No 86)
Definition of financial institution in section 2(1): repeal and substitute:
financial institution means either a person within the meaning of financial institution as defined in section 3 of the Financial Transactions Reporting Act 1996 or as defined in section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009
Reserve Bank of New Zealand Act 1989 (1989 No 157)
Section 41(1): add “and the Anti-Money Laundering and Countering Financing of Terrorism Act 2009”
.
Section 41(2): insert “, or the Anti-Money Laundering and Countering Financing of Terrorism Act 2009,”
after “by this Act”
.
Section 51(5): insert “or under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009,”
after “by this Act”
.
Section 51: add:
(9)
To avoid doubt, the Governor’s functions and powers include his or her functions and powers under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
Terrorism Suppression Act 2002 (2002 No 34)
Section 44(1)(b): insert “or by a reporting entity”
after “by a financial institution”
.
Section 44(1)(b): insert “or the reporting entity”
after “the financial institution”
.
Section 44(1)(d)(ii): insert “or reporting entity, as the case may be,”
after “that Commissioner and the financial institution”
.
Section 44(2): insert “or the reporting entity”
after “the financial institution”
.
Section 44(4): insert “or reporting entity”
after “financial institution”
in each place where it appears.
Section 44(5): repeal and substitute:
(5)
In this section, section 47, and Schedule 5,—
(a)
in the case of a financial institution to which the Financial Transactions Reporting Act 1996 applies, facility, financial institution, suspicious transaction report, and transaction have the meanings given to them in section 2(1) of that Act; and
(b)
in the case of a reporting entity to which the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 applies, facility, reporting entity, suspicious transaction report, and transaction have the meanings given to them in section 5 of that Act.
Section 47(1)(b)(i): insert “or reporting entity”
after “financial institution”
.
Section 47A(1)(a): insert after subparagraph (i):
(ia)
subpart 6 of Part 2 and sections 114 and 115 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009; or
Section 47C(5): insert after paragraph (a):
(ab)
Anti-Money Laundering and Countering Financing of Terrorism Act 2009:
Schedule 5: insert “or reporting entity”
after “financial institution”
in each place where it appears.
Part 3Regulations revoked
Financial Transactions Reporting (Interpretation) Regulations 1997 (SR 1997/48)
Reprints notes
1 General
This is a reprint of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 that incorporates all the amendments to that Act as at the date of the last amendment to it.
2 Legal status
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
3 Editorial and format changes
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
4 Amendments incorporated in this reprint
Statutes Amendment Act 2018 (2018 No 27): Part 2
Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (2017 No 35)
Intelligence and Security Act 2017 (2017 No 10): section 335
Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2015 (2015 No 96)
Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2013 (2013 No 106)
Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70): section 150
Legislation Act 2012 (2012 No 119): section 77(3)
Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2012 (2012 No 98)
Search and Surveillance Act 2012 (2012 No 24): section 201
Criminal Procedure Act 2011 (2011 No 81): section 413
Anti-Money Laundering and Countering Financing of Terrorism Act Commencement Order 2011 (SR 2011/221)
Financial Markets Authority Act 2011 (2011 No 5): section 82
Insurance (Prudential Supervision) Act 2010 (2010 No 111): section 241(2)
Versions
Anti-Money Laundering and Countering Financing of Terrorism Act 2009
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