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FINANCIAL TRANSACTIONS REPORTING ACT 2004

ACT NO. 22 OF 2004

“Financial Intelligence Unit” means the Financial Intelligence Unit established by section 22, and "Unit" has a corresponding meaning;

Functions, Duties and Powers of the Unit

25.―(1) The Unit –

(a) must receive reports made under sections 7, 13, 14, 15, 16 and 33(2) and information provided to the Unit by any agency of another country, information provided to the Unit by a law enforcement agency or a government institution or agency, and any other information voluntarily provided to the Unit about suspicions of a serious offence, a money laundering offence or the offence of the financing of terrorism;

(b) may collect information that the Unit considers relevant to serious offences, money laundering activities or the financing of terrorism whether or not publicly available, including commercially available databases, or information that is collected or maintained, including information that is stored in databases maintained by the government;

(c) may obtain information on parties or transactions referred to in reports made under sections 7, 13, 14, 15, 16 and 33(2);

(d) may request information from any government agency, law enforcement agency and supervisory agency without charge for purposes of this Act;

(e) must analyse and assess all reports and information received;

(f) may refer any matter or any information derived from any report or any other information it receives to the appropriate law enforcement and supervisory authorities, both domestic and foreign, if, having considered the report or information, the Unit has reasonable grounds to suspect that the transaction or information is relevant to the investigation or prosecution of a money laundering offence, a terrorist financing offence or a serious offence;

(g) must destroy a suspicious transaction report received or collected on the expiry of 7 years after the date of receipt of the report if there has been no further activity or information relating to the report or the person named in the report or 7 years from the date of the last activity relating to the person or report;

(h) may instruct any financial institution to take such steps as may be appropriate in relation to any information or report received by the Unit, including requesting further information in relation to any reports made, to enforce compliance with this Act or to facilitate any investigation anticipated by the Unit or a law enforcement agency;

(i) must compile statistics and records, disseminate information within the Fiji Islands or any other country and, make recommendations arising out of any information received;

(j) in consultation with the relevant supervisory authority, must issue guidelines to financial institutions in relation to customer identification, record keeping and, reporting obligations and the identification of suspicious transactions;

(k) must periodically provide feedback to financial institutions and other relevant agencies regarding outcomes to the reports or information given under this Act;

(l) may provide training programs for financial institutions in relation to customer identification, record keeping and reporting obligations and the identification of suspicious transactions;

(m) may undertake due diligence checks and other inquiries as may be requested in writing by a government department or authority;

(n) may conduct research into trends and developments in the area of money laundering and the financing of terrorism and improved ways of detecting, preventing and deterring money laundering and the financing of terrorist activities;

(o) may educate the public and create awareness on matters relating to money laundering and the financing of terrorism;

(p) may disclose any report or information received from a report or any other information received, to an institution or agency of a foreign state or of an international organisation established by the governments of foreign states that has powers and duties similar to those of the Unit under sections 26 and 27, if on the basis of its analysis and assessment, the Unit has reasonable grounds to suspect that report or information would be relevant to investigation or prosecution of a money laundering offence, terrorist financing offence or a serious offence; and

(q) may enter into agreements or arrangements with a Government institution or department for the exchange of information.

(2) If the Unit has reasonable grounds to suspect that a transaction or attempted transaction may –

(a) involve the proceeds of a serious offence, a money laundering offence or an offence of the financing of terrorism; or

(b) be preparatory to the offence of the financing of terrorism, to allow the Unit time to make inquires or to consult or advise relevant law enforcement agencies, the Attorney-General may apply ex parte to a judge of the High Court for an order, and if the judge is satisfied that there are reasonable grounds to suspect that a transaction or attempted transaction may involve the proceeds of such offence or may be preparatory to the offence of the financing of terrorism, the judge may grant an order that the financial institution refrain for a specified period from carrying out the transaction or attempted transaction or any other transaction in respect of the funds affected by that transaction.

Agreements and Arrangements by the Unit

26. (1) The Minister, or the Unit with the approval of the Minister, may in writing, enter into an agreement or arrangement, with –

(a) a government of a foreign state, an institution or agency of a foreign state or an international organisation established by the governments of foreign states that has powers and duties similar to those of the Unit; or

(b) a foreign law enforcement and supervisory authority;

regarding the exchange of information between the Unit and the government, institution, authority, agency or organisation.

(2) Any agreement or arrangement entered into under subsection (1) must –

(a) be restricted to information that the Government, Unit, institution or agency has reasonable grounds to suspect would be relevant to investigation or prosecution of a serious offence, a money laundering offence or an offence of the financing of terrorism, or an offence that is substantially similar to any of those offences;

(b) restrict the use of information to purposes relevant to investigating or prosecuting a serious offence, a money laundering offence or an offence of the financing of terrorism, or an offence that is substantially similar to any of those offences; and

(c) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Unit.

Disclosure to Foreign Agencies

27.―(1) The Unit may disclose any information to an institution or agency of another country or of an international organisation or other institution or agency established by the government of another country that has powers and duties similar to those of the Unit on such terms and conditions as are set out in the agreement or arrangement between the Unit and that other country or international organization regarding the exchange of such information.

(2) Nothing in subsection (1) limits the power of the Unit to disclose its information to an institution or agency of another country or of an international organisation or other institution or agency established by the government of another country that has powers and duties similar to those of the Unit, for the purposes of an investigation, prosecution or proceedings relating to a serious offence, a money laundering offence or an offence of the financing of terrorism.

(3) Any disclosure under subsection (2) is confidential information and must not be disclosed further without the written consent of the Unit.

Power to Examine

28.―(1) The Director or any person authorised in writing by the Director may examine the records and inquire into the business and affairs of any financial institution for the purpose of ensuring compliance with Parts 2 and 3, and for that purpose may-

(a) at any reasonable time, and with or without warrant enter any premises, in which the Unit or an authorised person believes, on reasonable grounds, that there are records relevant to ensuring compliance with Parts 2 and 3;

(b) use or cause to be used any computer system or data processing system in the premises to examine any data contained in or available to the system;

(c) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and

(d) use or cause to be used any copying equipment in the premises to make copies of any record.

(2) The owner or person responsible for premises referred to in subsection (1) and every person found at the premises must give the Unit or any authorised person all reasonable assistance to enable them to carry out their responsibilities and must provide them with any information that they may reasonably require with respect to the administration of Parts 2 and 3 or the regulations under this Act.

(3) The Unit may transmit any information from, or derived from, such examination to the appropriate domestic or foreign law enforcement authorities or supervisory authorities, if the Unit has reasonable grounds to suspect that the information is suspicious or is relevant to an investigation for non-compliance with this Act, a serious offence, a money laundering offence or an offence of the financing of terrorism.

(4) A person who willfully obstructs or hinders or fails to cooperate with the Unit or any authorised person in the lawful exercise of the powers under subsection (1) or a person who fails to comply with subsection (2) commits an offence and is liable on conviction –

(a) for an individual- to a fine not exceeding $12,000 or imprisonment for a term not exceeding 2 years or both;

(b) for a body corporate - to a fine not exceeding $60,000.

Powers to Enforce Compliance

29.―(1) All directors, officers and employees of a financial institution must take all reasonable steps to ensure the compliance by that financial institution with its obligations under this Part.

(2) The Unit may direct any financial institution that has without reasonable excuse failed to comply in whole or in part with any obligations in Part 2 or 3 to implement any action plan to ensure compliance.

(3) If a financial institution fails to comply with a directive under subsection (2), the Attorney-General may apply to a judge of the High Court for an order that the financial institution and any or all of its officers or employees be compelled to comply with any of its obligations under Part 2 or 3.

(4) In granting an order under subsection (3) the judge may order that should the financial institution or any officer or employee of that institution fail without reasonable excuse to comply with all or any of the provisions of that injunction such financial institution, officer or employee shall pay such financial penalty consistent with penalties under this Act as the judge may determine.

Non-Disclosure

30.―(1) This section applies to a person while the person is or after the person ceases to be a Director, officer, employee or agent of the Unit.

(2) Except for the purpose of the performance of his or her duties or the exercise of his or her functions under this Act or when lawfully required to do so by any court, the person referred to in subsection (1) must not disclose any information or matter which has been obtained by him or her in the performance of his or her duties or the exercise of his or her functions under this Act or which he or she has knowledge except for one or more of the following purposes –

(a) the detection, investigation or prosecution of a serious offence, a money laundering offence or an offence of the financing of terrorism;

(b) the enforcing of the Proceeds of Crime Act 1997 and legislation relating to money laundering and financing of terrorism.

(3) A person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not exceeding $30,000 or imprisonment for a term not exceeding 5 years or both.

Immunity

31. No action lies against the Director, any officer, employee or agent of the Unit or any person acting under the direction of the Director for anything done in good faith in the administration or discharge of any powers, duties or functions under this Act.

 

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