Cancellation and suspension of a remittance dealers registration
- Executive summary
- What is the problem being addressed?
- The objective of government action
- Implementation and review
- Small business impacts
- Conclusion and recommendation
Australian law enforcement authorities are aware alternative remittance dealers are being used to facilitate serious and transnational crime, including people smuggling ventures.
In Australia, alternative remittance dealers are regulated under the AML/CTF Act and must comply with a range of obligations. This includes a requirement to register with AUSTRAC before providing services. These measures are designed to reduce the money laundering and terrorism financing (ML/TF) risk posed by the sector.
Recent amendments to the AML/CTF Act will further mitigate the ML/TF risk. Two of the amendments will give the AUSTRAC CEO explicit power to remove a person from the register either through cancellation or suspension.
Implementing AML/CTF Rules to give effect to these powers to cancel or suspend registration are designed to reduce the incidence and risk of misuse of remittance services to hide the proceeds of serious crime or to fund crime or terrorism. This in turn will protect the integrity and commercial significance of the remittance sector as part of the critical infrastructure of Australia’s financial system. These rules provide the AUSTRAC CEO with greater ability to control who is able to provide remittance services and to prevent unsuitable persons from retaining registration. The registration system is focused on establishing a remittance sector free from criminal influence and exploitation.
The cancellation or suspension of registration would have a significant impact on the remittance service provider involved. However, rights of review mitigate the possibility that this power will be used in a frivolous or ad hoc manner. A decision by the AUSTRAC CEO to cancel a person’s registration is a ‘reviewable decision’ under section 5 of the AML/CTF Act. This system of review supports fair and equitable application of the law.
Draft Rules relating to cancellation and suspension were published for comment on 27 April 2011 on the AUSTRAC website. AUSTRAC notified 3882 providers of designated remittance services via email of the publication of the draft Rules. Two major corporate providers of remittance services submitted comment on the cancellation and suspension draft rules.
The cost to the Australian community of money laundering is significant. Australia’s Organised Crime Threat Assessment ranks money laundering as one of the three top critical crime risks for our nation. While the consequences of suspension or cancellation of registration may be severe for the remitter involved, the potential cost to the community of the ML/TF threat posed by that remitter is high. Opportunities for internal and external review are available and the frequency of use of the power by the AUSTRAC CEO is expected to be low.
Removing high risk remittance service providers improves the resilience and effectiveness of the remittance sector as a whole.
This Regulation Impact Statement (RIS) has been prepared by the Australian Transaction Reports and Analysis Centre (AUSTRAC) to assess the impact on registered remittance dealers of the AUSTRAC CEO’s powers to cancel or suspend their registration. In particular, this RIS considers the criteria which the AUSTRAC CEO may use to make decisions in relation to cancellation and suspension.
The Combating the Financing of People Smuggling and Other Measures Act 2011 (CFPSOM Act) received Royal Assent on 28 June 2011. The CFPSOM Act amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to, among other things, give the AUSTRAC CEO power to cancel or suspend the registration of a remittance service provider. These provisions commence via proclamation. It is anticipated that 1 November 2011 will be the date on which the provisions will be proclaimed to take effect.
A RIS was prepared in relation to the CFPSOM Act. This RIS considers only those additional impacts on business which may be brought about by the criteria to be specified through Rules made under the AML/CTF Act by the AUSTRAC CEO in relation to cancellation and suspension.
For the purposes of this RIS the following definitions apply:
- beneficial owner means, in respect of a company, any individual who owns through one or more share holdings more than 25 per cent of the issued capital in the company;
- fraud means dishonestly obtaining a benefit by deception or other means;
- key personnel:
- in the case of a company, corporation sole or body politic, is a natural person that is;
- a beneficial owner; or
- an officer as defined in section 9 of the Corporations Act 2001, or an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy;
- in the case of an individual, trust or partnership, is a natural person that is an employee or agent of the individual, trust or partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual, trust or partnership;
- in the case of a company, corporation sole or body politic, is a natural person that is;
- people smuggling means conduct that amounts to:
- an offence against Division 73 of the Criminal Code; or
- an offence against Subdivision A, Division 12, Part 2 of the Migration Act 1958; or
- an offence against a law of a foreign country or of a part of a foreign country that corresponds:
- to an offence referred to in paragraph (a) or (b); or
- with the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime;
- person has the same meaning as in section 5 of the AML/CTF Act;
- serious offence means an offence which is:
- an offence against a law of the Commonwealth, or a law of a State or Territory, punishable on indictment by imprisonment for life or 2 or more years, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence) regardless of whether the offence proceeds summarily or on indictment; or
- an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence.
A ‘serious offence’ in relation to a person other than an individual means an offence which would have been a serious offence if the person had been an individual.
- terrorism means conduct that amounts to:
- an offence against Division 101 or 102 of the Criminal Code; or
- an offence against a law of a State or Territory that corresponds to an offence referred to in paragraph (a); o
- an offence against a law of a foreign country or of a part of a foreign country that corresponds to an offence referred to in paragraph (a).
The alternative remittance sector in Australia provides individuals and businesses with the ability to transfer funds overseas often outside the formal banking sector. The system operates through entities who receive instructions from individuals or businesses in one country for the transfer of money or property to be made available to individuals or businesses in another country. The remittance sector can transfer funds relatively quickly, securely and cost effectively and is particularly valuable in countries where established banking networks do not exist.
Businesses in the alternative remittance sector vary greatly in size and sophistication, ranging from community-based independent remittance dealers that are sole operator businesses to large multinational entities that have highly sophisticated operations. AUSTRAC estimates that there are around 6,500 individual providers of remittance services in Australia, the majority of which form part of larger networks.
What is the problem being addressed?
Australian law enforcement authorities are aware alternative remittance dealers are being used to facilitate serious and transnational crime, including people smuggling ventures.
The alternative remittance sector is recognised in Australia and internationally as a high-risk sector for money laundering and terrorism financing (ML/TF). This is largely due to the nature of the service, which can involve large-volume transactions, international funds transfers (including to high-risk countries), and a low level of compliance with regulation which makes it difficult for authorities to 'follow the money trail'.
In Australia, alternative remittance dealers are regulated under the AML/CTF Act and must comply with a range of resulting obligations, including customer identification and verification, transaction reporting and establishing an AML/CTF program. Remitters must also register with AUSTRAC before providing funds transfer services. These measures have addressed some of the ML/TF risk posed by the sector.
Recent amendments to the AML/CTF Act, contained in the CFPSOM Act will act to further mitigate the ML/TF risk posed by the sector and promote transparency and compliance. Two of the amendments to the AML/CTF Act will give the AUSTRAC CEO an explicit power to remove a person from the register either through cancellation or suspension.
Previously, the AUSTRAC CEO was only able to remove a person’s name and registrable details from the Register of Providers of Designated Remittance Services through a power contained in Chapter 44 of the AML/CTF Rules Instrument 2007 (No.1). The AUSTRAC CEO would remove the name when he considered that having the person’s name and registrable details on the Register would constitute an unacceptable money laundering or terrorism financing risk. These Rules were made in response to the ML/TF risks identified above. The mechanism to remove names and details, previously contained in AML/CTF Rules, is now clearly set out in the legislation, in the form of the power to cancel or suspend registration. A key benefit of including these powers within the primary legislation is that rights of review are provided for registered remitters affected by the decisions to cancel and suspend registration.
The AUSTRAC CEO’s power to cancel or suspend the registration of a remitter was contained within the CFPSOM Act and a regulatory impact of those powers was covered by the associated Regulatory Impact Statement (RIS) completed in October 2010.
The AUSTRAC CEO cannot cancel or suspend a person’s registration unless it is in accordance with the grounds for cancellation or suspension as specified through either the AML/CTF Act or the AML/CTF Rules. The proposed Rule will provide certainty and clarity for the remittance sector regarding the grounds for cancellation and suspension. The use of the rule-making power for the purposes of suspension and cancellation enables the AUSTRAC CEO to respond to new and emerging threats identified by law enforceme3nt and other partner agencies. These threats can undermine the integrity of the remittance sector.
This RIS covers the matters which the AUSTRAC CEO may consider when deciding if it is appropriate to cancel the registration of a person under paragraph 75G(1)(c) of the AML/CTF Act.
This RIS also covers the grounds for suspension of registration of a remitter; notices of suspension; and, provisions relating to review of decisions relating to suspension.
The objective of government action
The objective of government action is to reduce the incidence and risk of misuse of remittance funds and serious crime related to remittance transactions. In doing this the intended outcome is to protect the commercial significance of the remittance sector as part of the critical infrastructure of Australia’s financial system.
1. 'Other' Matters that the AUSTRAC CEO may consider when deciding whether to cancel the registration of a person.
Draft Rules in relation to cancellation were published on the AUSTRAC website for consultation on 27 April 2011.
These Rules specify 'other' matters which the CEO could consider when deciding whether to cancel registration. They are in addition to the matters contained in the legislation itself which the CEO may consider.
Some of these 'other' matters may be viewed as giving more detail about the types of factors the CEO will take into account when he is assessing whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism or people smuggling risk.
Additional 'other' matters focus on the competence, diligence, judgement, honesty or integrity of the person, in the context of a high ML/TF risk sector. In reflecting on these matters, the AUSTRAC CEO may also take into account due diligence assessments carried out on the person, by the registered remittance network provider who has made the application, of the suitability of the person to be a remittance affiliate. Finally, the AUSTRAC CEO must take into consideration any findings that the information provided in the application for registration was not true and correct at the time the application was made.
These draft Rules are similar to, although not the same as, the existing Chapter 44 of the AML/CTF Rules Instrument 2007 (No. 1).
The draft Rules indicate that the matters that the CEO may consider include where a registered remitter or any of its key personnel has been:
- Charged, prosecuted and/or convicted in relation to money laundering, financing of terrorism, terrorism, people smuggling, fraud, a serious offence, an offence under the AML/CTF Act or an offence under the Financial Transaction Reports Act 1988 (FTR Act)
- Subject to a civil penalty order made under the AML/CTF Act
- The subject of civil or criminal proceedings or enforcement action, in relation to the management of an entity, or commercial or professional activities, which were determined adversely to the person or any of its key personnel and which reflect adversely on the person’s competence, diligence, judgement, honesty or integrity.
The remitters who are affected by these Rules have come before law enforcement agencies and/or courts and are considered to have actually or potentially breached provisions of the law.
The AUSTRAC CEO may take these things into account when deciding whether the continued registration of the person involves, or may involve, significant money laundering, financing of terrorism or people smuggling risk. Finally, the AUSTRC CEO may cancel registration where there is evidence that the person, in general, presents too high a risk to continue operating a registered remittance service. For example, the AUSTRAC CEO may take into account a money laundering conviction, a decision to deregister by another regulator or a fraud charge when making a cancellation decision.
Other circumstances which may lead to the cancellation of a remitter’s registration include repeated failures to comply with the requirements of the AML/CTF Act. This may include repeated failures to: submit transaction reports; identified and verify customers appropriately; or retain records, despite education and assistance by AUSTRAC. The CEO could also take civil penalty action against a remitter for failing to implement a specified action in a remedial direction and could cancel the registration of a remitter in these circumstances.
AUSTRAC expects that the CEO may use his power to cancel the registration of a remitter approximately 3 to 6 times in a year.
An alternative option to that discussed above would be to make no Rules in relation to section 75G (1) (c) of the AML/CTF Act. The cancelation power itself is contained within 75 G(1) of the AML/CTF Act and paragraphs 75G(1)(a) and 75G(1)(b) specify matters which the AUSTRAC CEO must consider. These matters are:
- Whether the continued registration of the person involves, or may involve, a significant money laundering, financing of terrorism or people smuggling risk; or
- One or more breaches by the person of a condition of registration.
The proposed Rules under 75G (1) (c), are 'such other matters (if any)' and need not be made to give effect to the legislative power.
This option would result in a narrowing of factors that the CEO could base cancellation decisions upon. This could result in persons who have had adverse findings made against them in serious circumstances continuing to offer services in a sector internationally recognised as being at high risk of abuse by money launderers or financiers of terrorism.
2. Suspension of registration by the AUSTRAC CEO
Draft AML/CTF Rules in relation to suspension of registration were published on the AUSTRAC website for consultation on 27 April 2011.
These draft Rules state that the AUSTRAC CEO may suspend for a specified period of time the registration of a person. The draft Rules also specify the matters which are grounds for suspension. Finally, these draft Rules provide for notices of suspension and review of decisions relating to suspension.
The AUSTRAC CEO may suspend the registration of a person for any of the matters that are specified as being relevant for his consideration of cancellation of registration.
The objective of these draft AML/CTF Rules is to give the AUSTRAC CEO the ability to cease temporarily the operation of a remittance service provider in circumstances where he is satisfied on reasonable grounds that the person has breached or is about to breach a range of civil or criminal penalty provisions. This ability may prevent the actual commissioning of the illegal activity or will prevent the possible continuation of illegal activity while the matter is being investigated, reviewed, or while legal proceedings are being conducted. The AUSTRAC CEO may use the suspension power where the person has been charged with money laundering or terrorism financing or other financial crime type offences but where that matter has not yet been dealt with by the courts.
The AUSTRAC CEO may also suspend the registration of a remitter when he has commenced action to cancel the registration of the person and the action has not yet been completed.
AUSTRAC expects that the CEO may use his power to suspend the registration of a remitter approximately 3 to 6 times in a year.
An alternative option to that discussed above would be to make no Rules in relation to suspension (ie section 75H of the AML/CTF Act). It is noted that the section only specifies action that may be undertaken within the context of a Rule, there is no other power in section 75H that allows the AUSTRAC CEO to take any other action, in contrast to the provisions of section 75G in relation to cancellation of a registration. In such a case, the CEO would have a reduced number of enforcement options available for use in regulating a high ML/TF risk sector, particularly in circumstances where serious criminality may be involved.
Such circumstances may mitigate against using ‘remedial directions’ under the AML/CTF Act, which relate to a reporting entity having contravened or is contravening, a civil penalty provision under the AML/CTF Act, and allow the AUSTRAC CEO to give a written direction that the person must not contravene the relevant civil penalty provision. The alternative under the AML/CTF Act of applying to the Federal Court for an injunction, in circumstances where a person is continuing to contravene a civil penalty provision, regardless of a remedial direction, is considered inappropriate when the option of suspending the relevant reporting entity is a more practical, timely and cost-effective alternative.
Likewise, the use of ‘enforceable undertakings’ under the AML/CTF Act in regard to a person agreeing to take action, or to not take action as the case may be, may be appropriate where serious criminality is not involved, but is not appropriate in circumstances of significant money laundering, financing of terrorism or people smuggling risk, particularly where it is considered that action must be undertaken in a timely manner.
Without the power to suspend the registration of a person, the AUSTRAC CEO will have no alternative in situation where there appears to be significant money laundering, financing of terrorism or people smuggling risk, but to cancel the registration of the remitter. This removes an opportunity for the reporting entity to put its case through a review process in a timely fashion and, if successfully in having the suspension revoked, continue operating without great interruption to its business.
In relation to the draft cancellation Rules, the proposal in option 1 gives the AUSTRAC CEO a broader range of matters to consider when he uses the power to cancel registration. This is a power, which when exercised, will remove a person’s livelihood, or part thereof, which is a significant impact on the individual concerned. However, rights of review mitigate the possibility that this power will be used in a frivolous or ad hoc manner.
While the cancellation or suspension of a person’s registration will have a business impact, the AUSTRAC CEO will be able to respond promptly and effectively to redress persons engaging in illegal and inappropriate activities or serious non-compliant behaviour which threaten the integrity and transparency of remittance activities.
Although there are approximately 6,500 providers of remittance services, there are only a few businesses that solely provide remittance services. Generally, remittance is not the sole source of income. The substantial majority of businesses offer remittance as an ancillary service to their core activities because they trade as milk bars, newsagents, licensed post offices or as other forms of mixed businesses.
A decision by the AUSTRAC CEO to cancel a person’s registration is a ‘reviewable decision’ under section 5 of the AML/CTF Act. Review of the decision can be sought in accordance with the review provisions. This system of review supports fair and equitable application of the law, including the proposed AML/CTF Rule relating to cancellation. The system of review operates as follows:
- The AUSTRAC CEO must (except in cases of urgency) give written notice of a proposed decision and provide an opportunity for the person to make a submission in response.
- After making a reviewable decision in relation to a person the AUSTRAC CEO must ensure that the person is given a written notice containing key information about the decision, including rights of review.
- A person in relation to whom a decision is made may seek internal review of the decision. The AUSTRAC CEO must ensure independent review by an AUSTRAC officer who is senior to the original decision maker and who was not involved in making the original decision. The reviewer may affirm, vary or revoke the decision.
- A person to whom a reviewable decision relates may apply to the AAT for review of a decision made by a person on review of the original decision, or a decision made by the AUSTRAC CEO personally.
There may be some instances where it is necessary for a registration decision to have immediate effect – for example, if the AUSTRAC CEO is aware that a serious criminal offence is about to occur. In such cases the AUSTRAC CEO is not required to give notice before making a reviewable decision in relation to a person.
To date, using the Chapter 44 AML/CTF Rules, the AUSTRAC CEO has only used the power to remove names from the register judiciously and in only the most serious of circumstances. The AUSTRAC CEO has removed the names of two remitters from the Provider of Designated Remittance Service Register. In these cases, the person concerned had been convicted of an offence in relation to money laundering.
Although the draft AML/CTF Rule on cancellation expands the number of serious matters that the AUSTRAC CEO may take into consideration when deciding whether to cancel registration, it is not expected that there will be a significantly large increase in the number of cancellations.
The cost to the Australian community of money laundering is significant.
Money laundering is one of the most pervasive and critical crime threats to Australia. Australia’s Organised Crime Threat Assessment ranks money laundering, as one of the three top critical crime risks for our nation.
Money laundering is also intrinsic to serious tax fraud and a threat to the revenue.
The high threat and risk rating for money laundering reflects the fact that it is a crucial enabler for organised crime and tax evasion. Overseas, money laundering is recognised as the common denominator of all organised crime activities. In Australia, money laundering is regarded as the lifeblood of organised crime groups and considered unique, as the only activity in which nearly all organised crime groups are engaged.
While the consequences of cancellation may be severe for the person involved, the potential cost to the community of the threat posed by that person is high, opportunities for internal and external review are available and the frequency of use of the cancellation power by the AUSTRAC CEO will be low.
The suspension power will also remove a person’s livelihood, or part thereof, for a specified period of time, which may have a significant impact on the individual concerned. However, rights of review mitigate the possibility that this power will be used in a frivolous or ad hoc manner.
Implementing these draft AML/CTF Rules will reduce the incidence and risk of misuse of remittance services to hide the proceeds of serious crime or to fund terrorism or crime. This in turn will protect the commercial significance of the remittance sector as part of the critical infrastructure of Australia’s financial system.
Removing high risk service providers improves the resilience and effectiveness of the sector as a whole and reduces the opportunities for criminal to find 'weak links' to move, hide and disguise the profits from their crimes. Criminals, including people smugglers will have fewer 'easy' avenues to channel funds to pay for their activities.
The draft AML/CTF Rule relating to cancellation provides the AUSTRAC CEO with a greater ability to control who is able to provide remittance services and to prevent unsuitable persons from retaining registration. He is able to take into account in his own decision making process adverse findings by law enforcement, courts and other regulators.
More informed decisions by the AUSTRAC CEO, taking into account a wider range of factors, will lead to increased confidence that Australia’s designated remittance service sector will not contain providers who pose significant money laundering or financing of terrorism, people smuggling or other criminal activity risk.
The benefits of a suspension power for the AUSTRAC CEO are twofold. The community benefits from the cessation of funds flows which might otherwise be the laundering of money obtained through criminal activity, or be the financing terrorism, people smuggling or other illegal activity.
Providers of remittance services benefit through being given notice of suspension and an opportunity to present their case during the review process prior to entering a cancellation procedure.
Interested stakeholders were given the opportunity to comment on the proposal to give the AUSTRAC CEO power to refuse, suspend, cancel or impose conditions on the registration of providers of remittance services in April 2010, July 2010, August 2010 and during the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the CFPSOM Bill in March 2011.
In regard to the specific details of the Rules relating to cancellation or suspension, stakeholders were given the opportunity to comment on draft Rules which were published on 27 April 2011 on the AUSTRAC website with the consultation period closing on 25 May 2011. AUSTRAC notified 3,882 providers of designated remittance services via email of the publication of the draft Rules. Those email recipients who were remittance network providers were encouraged to notify their affiliates about the draft Rules.
Two major corporate providers of remittance services submitted comment on the cancellation and suspension draft Rules.
Both providers were concerned about notification ‘of the other party’ processes when the AUSTRAC CEO makes a decision to suspend or cancel in relation to either a remittance network provider or an affiliate.
In relation to suspension, the draft Rules state that the CEO may, in writing, inform a registered remittance network provider of the suspension of a registered remittance affiliate of the provider, or inform a registered remittance affiliate of the provider of the suspension of a registered remittance network provider. While the draft Rules use the word ‘may’ the presumption is that notification will take place.
Also in relation to suspension draft Rules, comment was made that due consideration should be given to ensuring enough time is given to complete the work required to give effect to the suspension. AUSTRAC agrees with this concern and notes that the draft Rules provide for the CEO to give 7 days notice of suspension.
The draft Rules also provide for a review of the suspension decision. The application for review must be given to the AUSTRAC CEO within 14 days after the receipt of the notice given. The suspension does not take place until the review has been completed. Therefore, this deals with a concern raised by a stakeholder that if a suspension decision is overturned in a 'less serious case' the impact on a designated remittance service provider could be severe.
Finally, in relation to the review of a decision by the AUSTRAC to suspend a person who is an affiliate of a registered remittance network provider, it was suggested that the network provider should be able to apply for review on behalf of the affiliate. AUSTRAC does not agree with the suggestion. An affiliate of a remittance network is a reporting entity in its own right under the AML/CTF Act and retains legal liability for meeting the requirements of the Act. If, for the reasons contained within the Rules, the CEO decides to suspend the registration of an affiliate, it is the affiliate that must apply for review of that decision. This is not to say that a network provider could not assist an affiliate with the application for review, but the request should be submitted by the affiliate as they are the legal entity to which the suspension may apply. Further, the affiliate is best placed to understand the circumstances surrounding the proposed suspension.
Implementation and review
AUSTRAC is Australia’s AML/CTF regulator and specialist financial intelligence unit. In its regulatory role, AUSTRAC oversees compliance with the AML/CTF Act and AML/CTF Rules. The AUSTRAC CEO or his delegate will be implementing the enhanced remitter regulation process, including the use of cancellation and suspension powers.
Section 251 of the AML/CTF Act requires that the Minister conduct a review of the AML/CTF Act before the end of 2013. The application of the cancellation and suspension power will be considered within this wider review process.
Small business impacts
As noted in the Background section, the remittance sector varies greatly in size and sophistication, ranging from community-based independent remittance dealers that are sole operator businesses to large multinational entities that have highly sophisticated operations. Many remittance affiliates and independent remittance businesses are known to be small businesses.
The proposals assessed in this RIS, ie the power to suspend cancellation, or the assessment of 'other matters' when deciding to cancel registration will have significant impacts on small business should they be triggered. The impact of cessation of service delivery will be severe regardless of the size of a business. However, as mentioned all businesses will be given access to internal and external review processes. As discussed above, small businesses who are affiliates of larger remittance network providers will be able to ask for assistance in presenting their case during the review process, however, they will be required to seek review in their own right.
For those independent remittance service providers who do not have access to larger network providers for support, AUSTRAC will explain the reasons for its action, and advise the entity of the processes available for review.
Conclusion and recommendation
The preferred option for cancellation is Option 1; while the preferred option for suspension is Option 1.
These options provide greater clarity and certainty to the remittance sector and will allow the AUSTRAC CEO to properly respond to high risk behaviour.
These options will reduce the misuse of the remittance sector by assisting to address concerns with criminal infiltration and exploitation of the sector, strengthen industry compliance with AML/CTF obligations and improve the transparency and competitive position of the sector.