Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
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Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
Government Bill
114—1
Explanatory note
General policy statement
This is an amendment Bill, included in a package of Bills amending regulatory systems administered by the Ministry of Justice.
The package also contains the following Bills that will improve the quality of existing regulation, court timeliness, efficiency, and access to justice:
the Regulatory Systems (Courts) Amendment Bill:
the Regulatory Systems (Tribunals) Amendment Bill:
the Regulatory Systems (Occupational Regulation) Amendment Bill.
These Bills will improve the effectiveness and efficiency of the courts and tribunals, occupational regulation, and the criminal law (anti-money laundering and countering financing of terrorism) regulatory areas.
Regulatory systems amendment bills capture the smaller issues and opportunities for improvement within the legislation governing regulatory systems. Opportunities to make these amendments may eventually come via bills progressing larger amendments to a specific Act. However, many years can elapse between Act-specific amendment bills. Regulatory systems amendment bills allow for an efficient use of House time as numerous amendments can be made across multiple pieces of legislation.
The Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill (the Bill) aims to improve New Zealand’s anti-money laundering and terrorism financing regime to make the system more risk-based, efficient, and effective through making amendments to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the AML/CFT Act). Those amendments are supported by the findings of 2 recent substantive reviews of the AMLCFT regime. The first review was New Zealand’s assessment by the Financial Action Task Force in 2019–2021, and the second was a statutory review of the AML/CFT Act concluded in 2022. This Bill addresses recommendations from the statutory review.
The amendments made by the Bill—
clarify existing obligations, which will help businesses apply rules with greater certainty; and
strengthen enforcement provisions, which will ensure New Zealand can increase its compliance with international standards; and
provide relief for businesses; and
reduce compliance costs.
Cumulatively, the amendments will support the maintenance and continuous improvement of the AML/CFT regime, making it more efficient and effective at addressing organised crime.
Departmental disclosure statement
The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.
A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2024&no=114
Regulatory impact statement
The Ministry of Justice produced a regulatory impact statement on 19 June 2024 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.
A copy of this regulatory impact statement can be found at—
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 provides that the Act comes into force on the day after Royal assent.
Part 1Amendments to Anti-Money Laundering and Countering Financing of Terrorism Act 2009
Clause 3 provides that Part 1 amends the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the principal Act).
Clause 4 amends section 5 of the principal Act to—
update the definition of beneficial owner to include a person with ultimate ownership or control of the customer, and to exclude customers of a customer (unless the customer of a customer is the person with ultimate ownership or control of the customer):
update the definition of designated non-financial business or profession by—
clarifying that only client fund sums paid for professional services provided by the designated non-financial business or profession are excluded from the activity of managing client funds (which is an activity that carries obligations under the principal Act):
clarifying that preparing to carry out an activity listed in paragraph (a)(vi)(A) to (E) of the definition of designated non-financial business or profession is an activity for the purposes of that definition:
updating a reference to the Land Transfer Act 1952 to a reference to the Land Transfer Act 2017:
replace the definition of trust and company service provider to exclude financial institutions from the definition of trust and company service provider if the only relevant activity they carry out is managing client funds (other than sums paid as fees for professional services provided by the financial institution), accounts, securities, or other assets:
insert new definitions of life insurer and money or value transfer service.
Clause 5 amends section 6 of the principal Act to clarify that if a reporting entity, in the ordinary course of business, carries out an activity or activities of another type of reporting entity, the principal Act applies to those other activities.
Clause 6 amends section 14 of the principal Act to clarify that a reporting entity must conduct standard due diligence if a person seeks to conduct an occasional transaction or activity through the reporting entity and that person is not an existing customer of the reporting entity.
Clause 7 amends section 18 of the principal Act to clarify that a reporting entity may conduct simplified due diligence if a person listed in section 18(2) of the principal Act seeks to conduct an occasional transaction or activity through the reporting entity and that person is not an existing customer of the reporting entity.
Clause 8 amends section 22 of the principal Act to clarify that a reporting entity must conduct enhanced customer due diligence in respect of certain persons if those persons seek to conduct an occasional transaction or activity through the reporting entity and those persons are not existing customers of the reporting entity.
Clause 9 amends section 24 of the principal Act to provide that reporting entities are not required to conduct certain verification identity requirements in respect of customers or persons who are trusts described in section 22(1)(a)(i) or (b)(i) of the principal Act if the reporting entity is satisfied that any risks have been mitigated by conducting standard due diligence under sections 15 and 16 of the principal Act and enhanced customer due diligence under sections 23 and 25 of the principal Act.
Clause 10 amends section 26 of the principal Act. The amendments require a reporting entity to—
have an appropriate risk management system in place to determine whether any customer or any beneficial owner is a politically exposed person; and
when establishing a business relationship or conducting an occasional transaction or activity, determine whether the customer or any beneficial owner is a politically exposed person in accordance with its risk management system.
Clause 11 amends section 29 of the principal Act to remove a requirement that a financial institution that forms a correspondent banking relationship with a respondent financial institution (the respondent) must assess whether the respondent’s anti-money laundering and countering financing of terrorism controls to ascertain whether those controls are effective.
Clause 12 amends section 37 of the principal Act to—
clarify that certain matters apply to a reporting entity that has not conducted customer due diligence in respect of a customer as required by the principal Act, no matter the reason for not conducting the required customer due diligence; and
prohibit an ordering institution from ordering an international wire transfer that does not include the information required by sections 27(1) and 27A(1).
Clause 13 amends section 52 of the principal Act to prescribe that a reporting entity that is required to produce records under this Act must do so swiftly.
Clause 14 amends section 56 of the principal Act to—
require that a reporting entity that does not have employees must appoint a natural person to act as its AML/CFT compliance officer; and
provide that an AML/CFT compliance officer must be a senior manager of a reporting entity or report to a senior manager of a reporting entity.
Clause 15 amends section 58 of the principal Act to require a reporting entity to undertake its risk assessment in accordance with any applicable guidance material produced by AML/CFT supervisors or the Commissioner relating to risk assessments.
Clause 16 amends the heading to subpart 6 of Part 2 of the principal Act. Subpart 6 of Part 2 relates to the cross-border transportation of cash and stored value instruments.
Clause 17 inserts new section 67B into the principal Act. New section 67B defines the term stored value instrument for the purposes of subpart 6 of Part 2 of the principal Act.
Clause 18 amends section 68 of the principal Act to—
extend the application of the provision to include stored value instruments; and
clarify that a person is deemed to have moved cash or stored value instruments out of New Zealand if the person—
intends to leave New Zealand on an aircraft or a ship and has moved towards the aircraft or ship through a Customs-controlled area; and
has the cash or stored value instruments on their person or in their baggage; and
has not given a report in respect of the movement of that cash or those stored value instruments in accordance with subpart 6 of Part 2 of the principal Act.
Clause 19 amends section 69 of the principal Act to—
extend the application of the provision to include stored value instruments; and
provide that a person in New Zealand who receives cash or stored value instruments from a person who was required to fill out a cash report in respect of that cash or those stored value instruments is not themselves required to fill out a cash report.
Clause 20 amends section 70 of the principal Act to—
extend the application of the provision to include stored value instruments; and
set out when a cash report has to be provided.
Clause 21 amends section 71 of the principal Act to extend the application of the provision to include stored value instruments.
Clause 22 amends section 78 of the principal Act to specify that the following are civil liability acts:
a failure of a reporting entity to report activities in accordance with subpart 2 of Part 2 of the principal Act:
a failure of a reporting entity to undertake a risk assessment in accordance with the requirements of section 58 of the principal Act or review its risk assessment and AML/CFT programme in accordance with the requirements of section 59 of the principal Act:
a failure of a reporting entity to prepare or provide an annual report in accordance with section 60 of the principal Act.
Clause 23 amends section 79 of the principal Act to replace a reference to formal warnings under section 80 of the principal Act with a reference to censures under section 80 of the principal Act.
Clause 24 amends section 80 of the principal Act and the crossheading above it to replace references to formal warnings with references to censures.
Clause 25 inserts new section 90A into the principal Act. New section 90A provides that if the court orders that a person pay a pecuniary penalty, the court must also order that the penalty must be applied first to pay the AML/CFT supervisor’s actual costs in bringing the proceedings.
Clause 26 amends section 132 of the principal Act to provide that an AML/CFT supervisor may—
conduct inquires in accordance with the principal Act on behalf of any overseas counterparts; and
recover costs and penalties awarded in proceedings taken under the principal Act.
Clause 27 amends section 137 of the principal Act to provide that nothing in section 137 limits the Privacy Act 2020 (which permits certain disclosures in addition to those authorised under section 137 of the principal Act).
Clause 28 amends section 153 of the principal Act to replace a reference to formal warnings with a reference to censures.
Part 2Amendments to secondary legislation
Clauses 29 to 31 amend the Anti-Money Laundering and Countering Financing of Terrorism (Cross-border Transportation of Cash) Regulations 2010 to—
extend the application of these regulations to include stored value instruments; and
revoke regulation 7, which sets out when a cash report must be provided, as this has been amended and moved into the principal Act.
Clauses 32 to 34 amend the Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Regulations 2011 to—
revoke regulation 5AA, as this has been moved into the definition of beneficial owner in the principal Act; and
revoke regulation 24A (and the cross-heading above it), as this has been moved into the definition of trust and company service provider in the principal Act.
Clauses 35 to 38 amend the Anti-Money Laundering and Countering Financing of Terrorism (Requirements and Compliance) Regulations 2011 to—
replace references to formal warnings with references to censures; and
revoke regulation 15I, as this has been amended and moved into section 6 of the principal Act.
Hon Nicole McKee
Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
Government Bill
114—1
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2024.
2 Commencement
This Act comes into force on the day after Royal assent.
Part 1 Amendments to Anti-Money Laundering and Countering Financing of Terrorism Act 2009
3 Principal Act
This Part amends the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.
4 Section 5 amended (Interpretation)
(1)
In section 5(1), replace the definition of beneficial owner with:
beneficial owner—
(a)
means the individual who—
(i)
has effective control of a customer or person on whose behalf a transaction is conducted; or
(ii)
owns a prescribed threshold of the customer or person on whose behalf a transaction is conducted; and
(b)
includes an individual—
(i)
with ultimate ownership or control of the customer, whether directly or indirectly; or
(ii)
who is a customer of a customer, and on whose behalf the transaction is conducted, but only if the individual meets the requirement set out in subparagraph (i)
(2)
In section 5(1), definition of designated non-financial business or profession,—
(a)
in paragraph (a)(iv), after “professional services”
, insert “provided by the business or profession”
; and
(b)
in paragraph (a)(vi), replace “engaging in or giving instructions”
with “carrying out, preparing to carry out, or giving instructions”
; and
(c)
in paragraph (a)(vi)(A), replace “Land Transfer Act 1952”
with “Land Transfer Act 2017”
.
(3)
In section 5(1), replace the definition of trust and company service provider with:
trust and company service provider—
(a)
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; but
(b)
excludes a person that is a financial institution if the only activity described in paragraphs (a)(i) to (vi) of the definition of designated non-financial business or profession carried out by the financial institution is managing client funds (other than sums paid as fees for professional services provided by the business or profession), accounts, securities, or other assets
(4)
In section 5(1), insert in their appropriate alphabetical order:
life insurer—
(a)
means a licensed insurer that issues, or is liable under, life policies; and
(b)
includes a Lloyd’s underwriter that issues, or is liable under, life policies and is treated as being a licensed insurer under section 204 of the Insurance (Prudential Supervision) Act 2010
money or value transfer service—
(a)
means a service that—
(i)
accepts funds or value, whether in cash, or by electronic or other non-physical means, or in other stores of value; and
(ii)
pays a corresponding sum in cash or other form to a beneficiary by means of a communication, message, or transfer, or through a clearing network to which the operator of the money or value transfer service belongs; and
(b)
includes transactions that involve 1 or more intermediaries and a final payment to a third party
5 Section 6 amended (Application of this Act to reporting entities)
In section 6(4), after paragraph (e), insert:
(f)
in the case of a reporting entity specified in paragraphs (a) to (e) that, in the ordinary course of business, carries out an activity (or activities) of another type of reporting entity specified in those paragraphs, it carries out activities of the other type of reporting entity.
6 Section 14 amended (Circumstances when standard customer due diligence applies)
In section 14(1)(b), replace “customer”
with “person”
.
7 Section 18 amended (Circumstances where simplified customer due diligence applies)
In section 18(1)(b), replace “customers”
with “persons”
.
8 Section 22 amended (Circumstances where enhanced customer due diligence applies)
(1)
In section 22(1)(b), replace “customer”
with “person”
in each place.
(2)
In section 22(1)(b)(ii), replace “customer”
with “person”
.
(3)
In section 22(2)(b), replace “customer”
with “person”
.
(4)
In section 22(5)(b), replace “customer”
with “person”
.
9 Section 24 amended (Enhanced customer due diligence: verification of identity requirements)
After section 24(3), insert:
(4)
However, a reporting entity is not required to comply with subsection (1)(b) if the customer or person is a trust described in section 22(1)(a)(i) or (b)(i) and the reporting entity is satisfied that any risks have been mitigated by conducting—
(a)
standard customer due diligence under sections 15 and 16; and
(b)
enhanced customer due diligence under sections 23 and 25.
10 Section 26 amended (Politically exposed person)
(1)
Replace section 26(1) with:
(1)
The reporting entity must have an appropriate risk management system to determine whether a customer or beneficial owner is a politically exposed person.
(1A)
The reporting entity must, when establishing a business relationship or conducting an occasional transaction or activity, determine whether the customer or any beneficial owner is a politically exposed person in accordance with its risk management system.
(2)
In section 26(2), replace “with whom it has established”
with “with whom it establishes”
.
(3)
In section 26(3), replace “with whom it has conducted”
with “with whom it conducts”
.
11 Section 29 amended (Correspondent banking relationships)
In section 29(2)(c), delete “and effective”
.
12 Section 37 amended (Prohibitions if customer due diligence not conducted)
(1)
In section 37(1), replace “is unable to”
with “does not”
.
(2)
In section 37, after subsection (2), insert:
(3)
An ordering institution must not order an international wire transfer that does not include the information required by sections 27(1) and 27A(1).
13 Section 52 amended (How records to be kept)
In section 52, insert as subsection (2):
(2)
If required to produce records under this Act or any other enactment, a reporting entity must produce those records swiftly.
14 Section 56 amended (Reporting entity must have AML/CFT programme and AML/CFT compliance officer)
(1)
In section 56(3), replace “a person”
with “an individual”
.
(2)
In section 56(4), after “must”
, insert “be a senior manager or”
.
15 Section 58 amended (Risk assessment)
(1)
Repeal section 58(2)(g).
(2)
After section 58(2), insert:
(2A)
A reporting entity must undertake its risk assessment in accordance with any applicable guidance material relating to risk assessments that AML/CFT supervisors or the Commissioner produces.
16 Heading to subpart 6 of Part 2 amended
In the heading to subpart 6 of Part 2, after “cash”
, insert “or stored value instrument”
.
17 New section 67B inserted (Meaning of stored value instrument)
Before section 68, insert:
67B Meaning of stored value instrument
In this subpart, stored value instrument—
(a)
means a portable device (for example, a voucher or a casino chip) that represents or contains monetary value that is not physical currency but that can be redeemed for cash; and
(b)
includes gold, silver, precious metals, and precious stones; but
(c)
does not include a debit card or a credit card.
18 Section 68 amended (Reports about movement of cash into or out of New Zealand)
(1)
In the heading to section 68, after “cash”
, insert “or stored value instruments”
.
(2)
In section 68(1), after “cash”
, insert “or stored value instruments”
.
(3)
In section 68(1)(a), after “cash”
, insert “or the stored value instruments”
.
(4)
In section 68(1)(b), after “cash”
, insert “or those stored value instruments”
.
(5)
In section 68(1)(c), after “cash”
, insert “or those stored value instruments”
.
(6)
In section 68(2), after “cash”
, insert “or stored value instruments”
in each place.
(7)
In section 68(3), after “cash”
, insert “or stored value instruments”
in each place.
(8)
After section 68(3), insert:
(4)
For the purposes of this Act, a person is to be treated as having moved cash or stored value instruments out of New Zealand if the person—
(a)
intends to leave New Zealand on an aircraft or a ship; and
(b)
for the purpose of leaving New Zealand, goes towards an aircraft or a ship through a Customs-controlled area; and
(c)
either—
(i)
takes cash or stored value instruments into the Customs-controlled area; or
(ii)
has cash or stored value instruments in their baggage; and
(d)
has not given a report in respect of the movement of that cash or those stored value instruments in accordance with this subpart.
(5)
In this section, Customs-controlled area has the same meaning as in section 5(1) of the Customs and Excise Act 2018.
19 Section 69 amended (Reports about receipt of cash from outside New Zealand)
(1)
In the heading to section 69, after “cash”
, insert “or stored value instruments”
.
(2)
In section 69, after “cash”
, insert “or stored value instruments”
.
(3)
In section 69(a), after “cash”
, insert “or the stored value instruments”
.
(4)
In section 68(b), after “cash”
, insert “or those stored value instruments”
.
(5)
In section 69(c), after “cash”
, insert “or those stored value instruments”
.
(6)
After section 69, insert as subsection (2):
(2)
To avoid doubt, subsection (1) does not apply in respect of cash or stored value instruments that were moved into New Zealand by a person who was liable to complete a report in respect of the movement of that cash or those stored value instruments in accordance with this subpart.
20 Section 70 amended (Reporting requirements)
(1)
In section 70(d)(i), after “cash”
, insert “or stored value instruments”
.
(2)
In section 70, replace paragraph (d) with:
(d)
be provided to a Customs officer or any other prescribed person,—
Accompanied cash
(i)
in the case of accompanied cash or stored value instruments that the person brings into New Zealand, at the same time as the person presents themselves under section 103(1)(a) or (b) (obligations on persons arriving in New Zealand) of the Immigration Act 2009; or
(ii)
in the case of accompanied cash or stored value instruments that the person takes out of New Zealand, at the same time as the person presents themselves under section 119(1)(a) (obligations of persons leaving New Zealand) of the Immigration Act 2009; or
Unaccompanied cash
(iii)
in the case of unaccompanied cash or stored value instruments that the person sends from outside New Zealand, at least 72 hours before the cash or stored value instruments are received in New Zealand; or
(iv)
in the case of unaccompanied cash or stored value instruments that the person sends out of New Zealand, at least 72 hours before the cash or stored value instruments leave New Zealand; or
(v)
in the case of unaccompanied cash or stored value instruments that are sent to the person from outside New Zealand, at least 72 hours before the person receives the cash or stored value instruments in New Zealand.
21 Section 71 amended (Information to be forwarded to Commissioner)
In section 71(2), after “cash”
, insert “or stored value instruments”
in each place.
22 Section 78 amended (Meaning of civil liability act)
(1)
In section 78, after paragraph (d), insert:
(daa)
fails to report activities in accordance with subpart 2 of Part 2:
(2)
In section 78, after paragraph (e), insert:
(ea)
fails to undertake a risk assessment in accordance with the requirements of section 58 or review its risk assessment and AML/CFT programme in accordance with the requirements of section 59:
(eb)
fails to prepare or provide an annual report in accordance with section 60:
23 Section 79 amended (Possible responses to civil liability act)
Replace section 79(a) with:
(a)
censure a person under section 80:
24 Section 80 and crossheading replaced
Replace section 80 with:
Censures
80 Censures
(1)
The relevant AML/CFT supervisor may censure a person if the AML/CFT supervisor has reasonable grounds to believe that the person has engaged in conduct that constituted a civil liability act.
(2)
A censure must be—
(a)
in the prescribed form; and
(b)
issued in the manner specified in regulations (if any).
25 New section 90A inserted (Court must order that recovery from pecuniary penalty be applied to AML/CFT supervisor’s actual costs)
After section 90, insert:
90A Court must order that recovery from pecuniary penalty be applied to AML/CFT supervisor’s actual costs
If the court orders that a person pay a pecuniary penalty, the court must also order that the penalty must be applied first to pay the AML/CFT supervisor’s actual costs in bringing the proceedings.
26 Section 132 amended (Powers)
(1)
In section 132(2)(e), after “counterparts”
, insert “, including (but not limited to) conducting inquiries in accordance with this Act on behalf of any overseas counterparts”
.
(2)
After section 132(2)(f), insert:
(g)
recover costs and penalties awarded in proceedings taken under this Act.
27 Section 137 amended (Power to use information obtained as AML/CFT supervisor in other capacity and vice versa)
After section 137(7), insert:
(8)
Nothing in this section limits the Privacy Act 2020 (which permits certain disclosures in addition to those authorised under this section).
28 Section 153 amended (Regulations)
In section 153(1)(h), replace “formal warning”
with “censure”
.
Part 2 Amendments to secondary legislation
Amendments to Anti-Money Laundering and Countering Financing of Terrorism (Cross-border Transportation of Cash) Regulations 2010
29 Principal regulations
Sections 30 and 31 amend the Anti-Money Laundering and Countering Financing of Terrorism (Cross-border Transportation of Cash) Regulations 2010.
30 Regulation 7 revoked
Revoke regulation 7.
31 Schedule amended
(1)
In the Schedule, clause 1(a), after “cash ”
, insert “or stored value instruments with a value”
.
(2)
In the Schedule, clause 1(b), after “cash ”
, insert “or stored value instruments with a value”
.
(3)
In the Schedule, clause 1(c), after “cash ”
, insert “or stored value instruments with a value”
.
(4)
In the Schedule, clause 2A, after “unaccompanied cash”
, insert “or stored value instruments”
.
(5)
In the Schedule, clause 2A(a), after “cash”
, insert “or stored value instruments”
.
(6)
In the Schedule, clause 2A(b), after “cash of cash”
, insert “case of cash or stored value instruments”
.
(7)
In the Schedule, clause 2A(b)(ii), replace “cash is”
with “cash or stored value instruments are”
.
Amendments to Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Regulations 2011
32 Principal regulations
Sections 33 and 34 amends the Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Regulations 2011.
33 Regulation 5AA revoked (Inclusion: individual with ultimate ownership or control of customer or person)
Revoke regulation 5AA.
34 Regulation 24A and cross-heading revoked
Revoke regulation 24A and the cross-heading above regulation 24A.
Amendments to Anti-Money Laundering and Countering Financing of Terrorism (Requirements and Compliance) Regulations 2011
35 Principal regulations
Sections 36 to 38 amend the Anti-Money Laundering and Countering Financing of Terrorism (Requirements and Compliance) Regulations 2011.
36 Regulation 10 amended (Prescribed form for formal warnings)
(1)
In the heading to regulation 10, replace “formal warnings”
with “censures”
.
(2)
In regulation 10, replace “formal warning”
with “censure”
.
37 Regulation 15I revoked (Reporting entity that carries out activities of another kind of reporting entity)
Revoke regulation 15I.
38 Schedule 3 amended
(1)
In the Schedule 3 heading, replace “Formal warning”
with “Censure”
,
(2)
In Schedule 3,—
(a)
form heading, replace “Formal warning”
with “censure”
; and
(b)
form, replace “Formal warning”
with “Censure”
; and
(c)
form, replace “formal warning”
with “censure”
.
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Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill
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