| Short title. 1. |
This Act may be cited as the Money Laundering (Prevention) (Amendment) Act, 1999.
|
Amendment 2.
of section 2
of No. 9 of
1996 |
Section 2 of the Money Laundering (Prevention) Act (in this Act of section 2 referred to as the "principal Act") is amended in subsection (1) as follows:
(a) by repealing "of Finance" in paragraph (b) of the definition of "financial institution";
(b) by repealing "or other competent authority" in the definition of "forfeiture";
(c) by inserting after "incorporation" in the definition of "identification record" the following:
or the incorporation certificate by any other name"; and
(d) by repealint "legal affairs in the definition of "Minister" and substituting the following:
"national drug control and security".
|
Amendment 3.
of section 4. |
Section 4 of the principal Act, is repealed and the following section is substituted:
"4. Where an offence under section 3 is committed by a body of persons, whether corporate or unincorporate, every person who, at the offence, acted in an official capacity for or on behalf of the body of persons, whether as a director, manager, secretary or other similar officer, or was purporting to act in that capacity, is guilty of that offence if it is established that the offence was committed with his knowledge, consent or connivance."
|
Amendment 4.
of section 6. |
Section 6 of the principal Act, is repealed and the following section is substituted:
"6. A person who commits an offecnce under sections 3, 4 or 5 is liable on
|
Amendment 5.
of section 9. |
Section 9 of the principal Act, is repealed and the following section substituted:
"9. An offence under this Act, whether or not it occurred in Antigua and Barbuda or another territorial jurisdiction, shall be investigated by the law enforcement authorities or a person authorised by the Supervisory Authority and tried, judged and sentenced by a court in Antigua and Barbuda without pr 'udice to extradition when applicable in accordance with the law.".
|
Amendment 6.
of section 10.
|
Section 10 of the principal Act, is amended by repealing "of Finance".
|
Amendment 7.
of section 11. |
Section 11 of the principal Act, is amended as follows:
(a) in paragraph (iii) by repealing "for such a purpose";
(b) in paragraph (vi) by inserting after "financial institution" the following:
or seek the assistance of any government department, statutory body, or other public body";
(c) in paragraph (vii) by repealing "of Finance and the Attorney General";
(d) in paragraph (viii) by repealing the full stop and substituting a semi colon; and
(e) by inserting after paragraph (viii) the following paragraphs:
"(ix) may consult with any person, institution or Organisation within or without Antigua and Barbuda for the purposes of the exercise of its powers or duties under the Act, and
(x) may send a copy of the report received under paragraph (i) and any other information obtained pursuant to this section to the person, institution or Organisation it is consulting with under paragraph (ix).".
|
Amendment 8.
of section 12. |
Section 12 (iii) of the principal Act, is amended by inserting after "Supervisory Authority" in the two places it occurs the following:
"or a person authorised by the Supervisory Authority".
|
Amendment 9.
of section 13. |
Section 13 of the principal Act, is amended in subsection (1) by inserting after "purpose" the following:
"and to relations and transactions with persons, including business and other financial institutions. from countries that have not adopted a comprehensive anti money laundering programme".
|
Amendment 10.
of section 16. |
Section 16 of the principal Act, is amended by repealing subsection (1) and substituting the following:
"(1) A Judge of the High Court may upon an application made by the Supervisory Authority grant a mandatory injunction against an officer or employee of a financial institution in the terms the court deems necessary to enforce compliance on being satisfied that a financial institution has failed without reasonable excuse to comply in whole or in part with any obligation as provided under section 12 (i), (ii), (iii) and (iv) and section 13 (2).".
|
Amendment 11.
of section 18. |
Section 18 of the principal Act, is repealed and the following section is substituted:
"18. (1) A person who transports or causes the transportation of ca,-h or negotiable financial instruments into or out of Antigua and Barbuda in United States currency exceeding ten thousand dollars or equivalent in Eastern Caribbean or other currency, or in any lesser amount prescribed under the regulations issued under this Act, must report the fact to the Supervisory Authority at the prescribed time and in the prescribed manner.
(2) A person who fails to report the transportation of currency or negotiable financial instruments as required by subsection (1) commits an offence, and is liable on summary conviction to imprisonment of three months or a fine of ten thousand dollars or both and in addition the cash or negotiable instrument being transported shall be confiscated.
(3) Notwithstanding subsection (2), property involved in a violation of subsection (1) may be detained by the Supervisory Authority for a period of up to thirty days in order that investigations may be conducted to determine if the funds are directly or indirectly derived from or obtained through or are connected with a prescribed offence.".
|
Amendment 12.
of section 19. |
Section 19 of the principal Act, is amended as follows:
(a) in subsection (1) by repealing "changed with money laundering offence" and substituting the following:
criminally charged in any jurisdiction with a money laundering offence as defined in this Act";
(b) in subsection (3) by repealing "of forty-eight hours following the hour" and substituting the following:
"of thirty days following the day"; and
(c) by inserting after subsection (3) the following new subsections:
"(4) The person charged shall be notified by the Supervisory Authority of an order made under this section either by
(a) service at the business address of' counsel (if any) acting on his behalf;
(b) service at his last known address, place of business within the jurisdiction;
(c) in the case of a body corporate the registered or principal office of the body corporate;
(d) publication in the Gazette in Antigua and Barbuda; or
(e) publication in two consecutive issues of a local newspaper circulating in Antigua and Barbuda,
within fourteen days of the order being issued.
(5) The Supervisory Authority may direct a financial institution in writing to freeze property for a period of up to four days whilst it makes application for a freeze order from the Court, if it is satisfied that the property is derived from or connected with a money laundering offence.".
|
Amendment 13.
of section 20. |
Section 20 of the principal Act, is amended as follows:
(a) in subsection (1) by
(i) inserting after "offence" in the first place it occurs the following:
under the laws of Antigua and Barbuda";
(ii) inserting after "forfeited" the following:
"to the Government of Antigua and Barbuda."; and
(iii) repealing "and disposed of in such manner as the Minister may direct.";
(b) by inserting after subsection (1) the following subsection:
"(la) When a person is charged with a money laundering offence under the laws of Antigua and Barbuda and he has been notified of the charge either by
(a) service at the business address of counsel (if any) acting on his behalf;
(b) service at his last known address, place of business within the Jurisdiction;
(c) in the case of a body corporate the registered or principal office of the body corporate;
(d) publication in the Gazette in Antigua and Barbuda; or
(e) publication in two consecutive issues of a local newspaper circulating in Antigua and Barbuda, and one hundred and eighty days after the notification, the preliminary inquiry or the trial has not taken place because of his failure to appear at the preliminary inquiry or trial in Antigua and Barbuda, the court shall order any property, proceeds or instrumentalities derived from, connected with or related to the offence, wherever they may, be forfeited to the Government of Antigua and Barbuda.
(c) by inserting after subsection (2) the following subsection:
"(2a) When a person is charged in any jurisdiction other than Antigua and Barbuda with a money laundering offence as defined in this Act, upon application of the Supervisory Authority or the competent authority, the Court shall order any property, proceeds or instrumentalities derived from or connected with the offence which are located in, or under the control of persons presently in Antigua and Barbuda, to be frozen, and the person shall be notified of the order either by service at his last known address and in the case of a body corporate the registered or principal office of the body corporate, by publication in the Gazette in Antigua and Barbuda or by publication in two consecutive issues of' a local newspaper circulating in Antigua and Barbuda within four days and
(a) if the person charged does not respond within one hundred and eighty days of the freeze order the Court shall order the frozen property, proceeds and instrumentalities forfeited to the Government of Antigua and Barbuda;
(b) if the person charged provides satisfactory evidence to the Court within one hundred and eighty days of the notice of the freeze order that the charges were filed for political purposes or otherwise in bad faith or are unfounded, the court shall immediately vacate its order;
(c) if the person charged provides evidence to the Court within one hundred and eighty days of the notice of the freeze order that lie is challenging the charges, then the freeze order shall remain in force pending the outcome of the proceedings in the foreign jurisdiction; and
(d) if the person charged is convicted of the money laundering offence then on his conviction becoming final the frozen pi--)perty, proceeds and instrumentalities shall be forfeited to the Government of Antigua and Barbuda.".
|
Amendment 14.
of section 20A. |
After section 20 of the principal Act, the following section is inserted:
"Forfeiture Fund 20A.
(1) There shall be established a Forfeiture Fund (in this Act referred to as "the Fund") under the administration and control of' the Minister.
(2) All funds and the proceeds from the sale of all property forfeited under section 20 shall be deposited in the Fund after the deduction of a 20% administrative fee to be deposited into the Consolidated Fund.
(3) The funds and proceeds forfeited under section 20 and deposited into the Fund shall be used for the purpose of anti money laundering activities and other activities the Minister deems fit.".
|
Amendment 15.
of section 22. |
Section 22 of the principal Act, is repealed and the following section is substituted:
"22. The provisions of sections 19 and 20 shall apply to all property possessed by, or under the control of a person after the coming into force of this Act.".
|
Amendment 16.
of section 23. |
Section 23 of the principal Act, is amended as follows:
(a) by inserting after subsection (5) the following subsections:
"(5a) Information not publicly available shall only, be disclosed to any other competent authority by an order of the court.
(5b) Information pertaining to any investigation, prosecution or other proceeding relating to the imposition, assessment or collection of taxes ol'aiiy kind shall only be disclosed to any other competent authority where a mutual assistance treaty on a bilateral or multilateral basis exists between the requesting state and Antigua and Barbuda in accordance with the terms of the treaty."; and
(b) in subsection (6) by repealing "or other competent authority".
|
Repeal and 17.
savings.
No. 18 of
1998.
|
(1) The amendments made to the principal Act by the Money Laundering (Prevention) (Amendment) Act, 1998 are repealed and the principal Act as it was before the amendments is revived.
|
S.I. 44 of
1998.
|
(2) The Money Laundering (Prevention) Regulations, 1998 are repealed.
|
The purpose of this Bill is to amend the Money Laundering (Prevention) Act, 1996. It was felt by the International Community that Antigua and Barbuda had weakened the principal Act by the '98 amendments. These amendments therefore seek to correct that perception by repeating the '98 amendments and correcting some anomalies that exist in the principal Act.
Section 2 of the Bill amends section 2 of the principal act to make provision for the Act to be administered by one Minister instead of two and some other consequential amendments.
Section 3 of the Bill amends section 4 of the principal Act to correct the unconstitutionality of the provision as it reversed the burden of proof. The amendment seeks to bring it into conformity with the Constitution.
Section 7 of the Bill seeks to amend section I I of the principal Act to provide for the Supervisory Authority to be able to consult both within and outside Antigua and Barbuda to enable it to better carry out its powers or duties under the Act.
Section 11 of the Bill seeks to address the currency reporting provision of the principal Act. It was felt that the amount of money a person may transport into or out of Antigua and Barbuda was important enough to be stated in the Act and not ill regulations, hence the amendment to section 18. Also the penalty for contravention of the provision needed to be properly addressed.
Sections 12 and 13 of the Bill seek to introduce a notice procedure for sections 19 and 20 of the principal Act.
Section 14 of the Bill seeks to introduce a forfeiture fund where the proceeds from forfeited property and other monies confiscated under the Act may be deposited. The administration of the fund and its structure needed to be revisited hence the insertion of' section 20A.
Section 16 of the Bill seeks to enhance the confidentiality provisions of section 23 of the principal Act.
It is hoped that these amendments go a long way in satisfying the concerns expressed by the International Community regarding money laundering prevention legislation in Antigua and Barbuda.
Hon. Dr. L. Errol Cort
Minister of Justice and Legal Affairs