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ENACTED by the President and Parliament of [name of State]

PART I

PRELIMINARY

1. Short title, Extent and Commencement

(1) This Act may be called the "Proceeds of Crime and Terrorist Financing Act, 20--."

(2) It shall extend throughout [name of State].

(3) It shall come into force at once.

2. Definitions

(1) In this Act, unless the contrary intention appears:

(a) "account" means any facility or arrangement by which a financial institution or cash dealer does any one or more of the following:

(i) accepts deposits of currency;

(ii) allows withdrawals of currency or transfers into or out of the account;

(iii) pays cheques or payment orders drawn on a financial institution or cash dealer by, or collects cheques or payment orders on behalf of, a person;

(iv) supplies a facility or arrangement for a safety deposit box;

(b) "appeal" includes proceedings by way of discharging or setting aside a judgement, and an application for a new trial or for a stay of execution;

(c) "authorized officer" means a person or class of persons designated by the [Minister of Justice] pursuant to section 110 of the Drug Abuse Act, 2000 as an authorized officer;

(d) "cash dealer" means:

(i) a person who carries on a business of an insurer, an insurance intermediary, a securities dealer or a futures broker;

(ii) a person who carries on a business of dealing in bullion, of issuing, selling or redeeming travellers’ cheques, money orders or similar instruments, or of collecting, holding and delivering cash as part of a business of providing payroll services;

(iii) an operator of a gambling house, casino or lottery;

(iv) a trustee, or manager of a unit trust;

(e) "currency" means the coin and paper money of [name of State] or of a foreign country that is designated as legal tender and which is customarily used and accepted as a medium of exchange in the country of issue;

(f) "data" means representations, in any form, of information or concepts;

(g) "defendant" means a person charged with a serious offence, whether or not he or she has been convicted of the offence, and includes in the case of proceedings for a restraining order under section 67, a person who is about to be charged with a serious offence;

(h) "document" means any record of information, and includes;

(i) anything on which there is writing;

(ii) anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;

(iii) anything from which sounds, images or writings can be produced, with or without the aid of anything else;

(iv) a map, plan, drawing, photograph or similar thing;

(i) "financial institution" means any person who carries on a business of:

(i) acceptance of deposits and other repayable funds from the public;

(ii) lending, including consumer credit, mortgage credit, factoring (with or without recourse) and financing of commercial transactions;

(iii) financial leasing;

(iv) money transmission services;

(v) issuing and administering means of payment (such as credit cards, travellers' cheques and bankers' drafts);

(vi) guarantees and commitments;

(vii) trading for own account or for account of customers in money market instruments (such as cheques, bills, certificates of deposit), foreign exchange, financial futures and options, exchange and interest rate instruments, and transferable securities;

(viii) underwriting share issues and participation in such issues;

(ix) advice to undertakings on capital structure, industrial strategy and related questions, and advice and services relating to mergers and the purchase of undertakings;

(x) money-broking;

(xi) portfolio management and advice;

(xii) safekeeping and administration of securities;

(xiii) credit reference services;

(xiv) safe custody services;

(j) "[FIU]" means the [Financial Intelligence Unit];

(k) "gift" includes any transfer of property by a person to another person directly or indirectly:

(i) after the commission of a serious crime by the first person;

(ii) for a consideration the value of which is significantly less than the value of the consideration provided by the first person; and

(iii) to the extent of the difference between the market value of the property transferred and the consideration provided by the transferee;

(l) "interest", in relation to property, means:

(i) a legal or equitable estate or interest in the property;

(ii) a right, power or privilege in connection with the property;

(m) "person" means any natural or legal person;

(n) “proceedings” means any procedure conducted by or under the supervision of a judge or judicial officer, however described, in relation to

(i) any alleged or proven offence, or property derived from such an offence; or

(ii) terrorist property,

and includes an inquiry, investigation, or preliminary or final determination of facts;

(o) "proceeds of crime" means any property derived or realized directly or indirectly from a serious offence and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains derived or realized from such property at any time since the offence;

(p) "property" means currency and all other real or personal property of every description, whether situated in [name of State] or elsewhere and whether tangible or intangible, and includes an interest in any such property;

(q) “property of or in the possession or control of any person" includes any gift made by that person;

(r) "realizable property" means:

(i) any property held by a defendant;

(ii) any property held by a person to whom a defendant has directly or indirectly made a gift caught by this Act.

(s) "record" means any material on which data are recorded or marked and which is capable of being read or understood by a person, computer system or other device;

(t) "serious offence" means an offence against a provision of:

(i) any law in [name of State], for which the maximum penalty is death, or imprisonment or other deprivation of liberty for a period of not less than [12 months];

(ii) a law of a foreign State, in relation to acts or omissions, which had they occurred in [name of State], would have constituted an offence for which the maximum penalty is death, or imprisonment or other deprivation of liberty for a period of not less than [12 months];

(u) tainted property” means property

(i) used in or in connection with the commission of a serious offence;

(ii) derived, obtained or realized as a result of the commission of a serious offence;

(v) “terrorist act” has the same meaning as in section 2 of the Terrorist Financing Act;

(w) “terrorist act financing offence” means an offence against any of sections 3, 4 , 5 and 7 of the Terrorist Financing Act or an offence arising out of a contravention of section 6(1) of that Act;

(x) “terrorist group” has the same meaning as in section 2 of the Terrorist Financing Act;

(y) “terrorist property” has the same meaning as in section 2 of the Terrorist Financing Act;

(z) “unit trust” means any arrangement made for the purpose or having the effect of providing, for a person having funds available for investment, facilities for the participation by the person as a beneficiary under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property pursuant to the trust.

(2) A reference in this Act to the law of:

(a) [name of State];

(b) any foreign State,

includes a reference to a written or unwritten law of, or in force in, any part of [name of State] or that foreign State, as the case may be.

3. Meaning of charge in relation to a serious offence

Any reference in this Act to a person being charged or about to be charged with a serious offence is a reference to a procedure, however described, in [name of State] or elsewhere, by which criminal proceedings may be commenced.

4. Meaning of conviction in relation to a serious offence

For the purposes of this Act, a person shall be taken to be convicted of a serious offence if:

(a) the person is convicted, whether summarily or on indictment, of the offence;

[(b) the person is charged with, and found guilty of, the offence but is discharged without any conviction being recorded;]

(c) [name of Court], with the consent of the convicted person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another [serious] offence.

5. Meaning of quashing of convictions

For the purposes of this Act, a person's conviction for a serious offence shall be taken to be quashed in any case:

(a) where section 4 (a) applies, if the conviction is quashed or set aside;

[(b) where section 4 (b) applies, if the finding of guilt is quashed or set aside;]

(i) the person's conviction for the other offence referred to in that section, is quashed or set aside;

(ii) the decision of [name of Court] to take the offence into account in passing sentence for that other offence is quashed or set aside;

(d) where [the President] grants the person a pardon in respect of the person's conviction for the offence.

6. Meaning of value of property, etc

(1) Subject to subsection (2), for the purposes of this Act the value of property (other than cash) in relation to any person holding the property is:

(a) its market value; or

(b) where any other person holds an interest in the property:

(i) the market value of the first mentioned person's beneficial interest in the property, less

(ii) the amount required to discharge any charging order on that interest.

(2) References in this Act to the value of a gift or of any payment or reward are references to the value of the gift, payment or reward to the recipient when he or she received it, adjusted to take account of any subsequent changes in the value of money.

7. Meaning of dealing with property

For the purposes of this Act, dealing with property held by any person includes, without prejudice to the generality of the expression:

(a) where the property is a debt owed to that person, making a payment to any person in reduction or full settlement of the amount of the debt;

(b) making or receiving a gift of the property; or

8. Meaning of gift caught by this Act

(1) A gift [including a gift made before the commencement of this Act] is caught by this Act if:

(a) it was made by the defendant at any time after the commission of the serious offence, or if more than one, the earliest of the offences, to which the proceedings for the time being relate; and

(b) the [name of Court] considers it appropriate in all the circumstances to take the gift into account.

(2) For the purposes of this Act:

(a) the circumstances in which the defendant is to be treated as making a gift include those where he or she transfers property to another person directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b) in those circumstances, section 6(2) shall apply, taking into account the difference between the value of the gift and the consideration, if any, provided to the defendant by the recipient.

9. Meaning of deriving a benefit

A reference to a benefit derived or obtained by or otherwise accruing to a person includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at the request or direction of the first person.

10. Meaning of benefiting from the proceeds of a serious offence

For the purposes of this Act:

(a) a person has benefited from an offence if the person has at any time [whether before or after the commencement of this Act] received any payment or other reward in connection with, or derived any pecuniary advantage from, the commission of a [serious offence], whether committed by that person or another person;

(b) a person's proceeds of a serious offence are:

(i) any payments or other rewards received by the person [at any time] in connection with the commission of the offence; and

(ii) any pecuniary advantage derived by the person at any time from the commission of the offence

[,whether received or derived before or after the commencement of this Act]; and

(c) the value of a person's proceeds of a serious offence is the aggregate of the values of the payments, rewards or pecuniary advantages received by him in connection with, or derived by him from, the commission of the offence.

PART II

MONEY LAUNDERING AND TERRORIST FINANCING

11. [Financial Intelligence Unit]

(1) The [Minister of Finance] shall appoint a person or persons to be known as the [Financial Intelligence Unit].

(2) The [FIU]:

(a) shall receive reports of suspicious transactions issued by financial institutions and cash dealers pursuant to section 14(1);

(b) shall send any such report to theappropriate law enforcement authorities, if having considered the report, the [FIU] also has reasonable grounds to suspect that the transaction is suspicious;

(c) may enter the premises of any financial institution or cash dealer during ordinary business hours to inspect any record kept pursuant to section 14(1), and ask any question relating to such record, make notes and take copies of the whole or any part of the record;

(d) shall send to the appropriate law enforcement authorities, any information derived from an inspection carried out pursuant to subsection (c), if it gives the [FIU] reasonable grounds to suspect that a transaction involves proceeds of crime or terrorist property;

(e) may instruct any financial institution or cash dealer to take such steps as may be appropriate to facilitate any investigation anticipated by the [FIU];

(f) may compile statistics and records, disseminate information within [name of State] or elsewhere, make recommendations arising out of any information received, issue guidelines to financial institutions and advise the [Minister of Finance];

(g) shall create training requirements and provide such training for any financial institution in respect of transaction record-keeping and reporting obligations provided for in sections 13(1) and 14(1);

(h) may consult with any relevant person, institution or organization for the purpose of exercising its powers or duties under subsection (e), (f) or (g);

[(i) shall not conduct any investigation into money laundering or terrorist financing, other than for the purpose of ensuring compliance by a financial institution with the provisions of this Part].

12. Financial institutions and cash dealers to verify customers identity

(1) A financial institution or cash dealer shall take reasonable measures to satisfy itself as to the true identity of any applicant seeking to enter into a business relationship with it, or to carry out a transaction or series of transactions with it, by requiring the applicant to produce an official record reasonably capable of establishing the true identity of the applicant, such as a birth certificate, passport or other official means of identification, and in the case of a body corporate, a certificate of incorporation [together with the latest annual return to the [State Registry] of the body corporate]:

(2) Where an applicant requests a financial institution or cash dealer to enter into:

(a) a continuing business relationship;

(b) in the absence of such a relationship, any transaction,

the institution or cash dealer shall take reasonable measures to establish whether the person is acting on behalf of another person.

(3) If it appears to a financial institution or cash dealer that an applicant requesting it to enter into any transaction, whether or not in the course of a continuing business relationship, is acting on behalf of another person, the institution or cash dealer shall take reasonable measures to establish the true identity of any person on whose behalf or for whose ultimate benefit the applicant may be acting in the proposed transaction, whether as trustee, nominee, agent or otherwise.

(4) In determining what constitutes reasonable measures for the purposes of subsection (1) or (3), regard shall be had to all the circumstances of the case, and in particular:

(a) to whether the applicant is a person based or incorporated in a country in which there are in force provisions applicable to it to prevent the use of the financial system for the purpose of money-laundering or terrorist financing; and

(b) to custom and practice as may from time to time be current in the relevant field of business.

(5) Nothing in this section shall require the production of any evidence of identity where:

(a) the applicant is itself a financial institution or a cash dealer to which this Act applies; or

(b) there is a transaction or a series of transactions taking place in the course of a business relationship, in respect of which the applicant has already produced satisfactory evidence of identity.

13. Financial institutions and cash dealers to establish and maintain customer records

(1) A financial institution or cash dealer shall establish and maintain:

(a) records of all transactions exceeding [amount of currency or its equivalent in foreign currency or] [such amount of currency or its equivalent in foreign currency as may be specified from time to time by the [Minister of Finance]] carried out by it, in accordance with the requirements of subsection (3); and

(b) where evidence of a person's identity is obtained in accordance with section 12, a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained.

(2) Customer accounts of a financial institution or cash dealer shall be kept in the true name of the account holder.

(3) Records required under subsection (1)(a) shall contain particulars sufficient to identify:

(a) the name, address and occupation (or where appropriate business or principal activity) of each person:

(i) conducting the transaction, or

(ii) if known, on whose behalf the transaction is being conducted,

as well as the method used by the financial institution or cash dealer to verify the identity of each such person;

(b) the nature and date of the transaction;

(d) the type and identifying number of any account with the financial institution or cash dealer involved in the transaction;

(e) if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument; and

(f) the name and address of the financial institution or cash dealer, and of the officer, employee or agent of the financial institution or cash dealer who prepared the record.

(4) Records required under subsection (1) shall be kept by the financial institution for a period of at least [5 years] from the date the relevant business or transaction was completed.

14. Financial institutions and cash dealers to report suspicious transactions

(1) Whenever a financial institution or cash dealer has reasonable grounds to suspect that information that it has concerning a transaction or proposed transaction may be relevant to the investigation or prosecution of a person for a serious offence it shall as soon as possible but no later than [3 working days] after forming that suspicion and wherever possible before any transaction is carried out:

(a) take reasonable measures to ascertain the purpose of the transaction or proposed transaction, the origin and ultimate destination of the funds involved, and the identity and address of any ultimate beneficiary;

(b) prepare a report of the transaction or proposed transaction in accordance with subsection (2); and

(c) communicate the information contained therein to the [FIU] in writing or in such other form as the [Minister of Finance] may from time to time approve.

(2) A report required by subsection (1) shall:

(a) contain particulars of the matters specified in subsection (1)(a) and in section 12(1);

(b) contain a statement of the grounds on which the financial institution or cash dealer holds the suspicion; and

(3) A financial institution or a cash dealer which has reported a suspicious transaction or proposed transaction in accordance with this Part shall, if requested to do so by the [FIU], give such further information as it has in relation to the transaction.

15. Financial institutions and cash dealers to establish and maintain internal reporting procedures

A financial institution or cash dealer shall establish and maintain internal reporting procedures to:

(a) identify persons to whom an employee is to report any information which comes to the employee's attention in the course of employment, and which gives rise to knowledge or suspicion by the employee that another person is engaged in money-laundering or terrorist financing ;

(b) enable any person identified in accordance with subsection (a) to have reasonable access to information that may be relevant to determining whether sufficient basis exists to report the matter pursuant to section 14(1); and

(c) require the identified person to report the matter pursuant to section 14(1), in the event that he or she determines that sufficient basis exists.

16. Further preventive measures by financial institutions and cash dealers

A financial institution or cash dealer shall establish and maintain internal reporting procedures to:

(a) take appropriate measures for the purpose of making employees aware of domestic laws relating to money-laundering and terrorist financing , and the procedures and related policies established and maintained by it pursuant to this Act; and

(b) provide its employees with appropriate training in the recognition and handling of transactions relating to money-laundering and terrorist financing.

17. Money-laundering offences

A person commits the offence of money-laundering if the person:

(a) acquires, possesses or uses property, knowing or having reason to believe that it is derived directly or indirectly from acts or omissions:

(i) in [name of State] which constitute an offence against any law of [name of State] punishable by imprisonment for not less than [12 months]; or

(ii) outside [name of State] which, had they occurred in [name of State], would have constituted an offence against the law of [name of State] punishable by imprisonment for not less than [12 months]; or

(b) renders assistance to another person for:

(i) the conversion or transfer of property derived directly or indirectly from those acts or omissions, with the aim of concealing or disguising the illicit origin of that property, or of aiding any person involved in the commission of the offence to evade the legal consequences thereof; or

(ii) concealing or disguising the true nature, origin, location, disposition, movement or ownership of the property derived directly or indirectly from those acts or omissions.

Penalty: in the case of a natural person, imprisonment for a maximum of [.... years] or a maximum fine of [.....], or both, and in the case of a body corporate [five times] such fine.

18. Related offence

(1) A person shall not open or operate an account with a financial institution or a cash dealer in a false name.

Penalty: In the case of a natural person, imprisonment not exceeding [... years], or a fine of a maximum of [amount] or both, and in the case of a body corporate, [five times] such fine.

(2) A financial institution or cash dealer who fails to comply with any requirement of this Part for which no penalty is specified commits an offence:

(3) In determining whether a person has complied with any requirement of subsection (2), [name of Court] shall have regard to all the circumstances of the case, including such custom and practice as may from time to time be current in the relevant trade, business, profession or employment, and may take account of any relevant guidance adopted or approved by a public authority exercising public interest supervisory functions in relation to the financial institution or cash dealer, or by any other body that regulates or is representative of the trade, business, profession or employment carried on by that person.

(4) Every person commits an offence who discloses to another person

(a) that a report under section 14(1) is being prepared or has been sent to the [FIU]; or

(b) any other information or matter,

where the disclosure is likely to prejudice any investigation of money laundering or terrorist financing.

Penalty: Imprisonment not exceeding [... years], or a fine not exceeding [.....], or both.

(5) In proceedings for an offence against subsection (4), it is a defence to prove that the person did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice any investigation of money laundering or terrorist financing.

19. Seizure and detention of suspicious imports or exports of currency

(1) An authorized officer may seize and, in accordance with this section detain, any currency which is being imported into or exported from [name of State], if he or she has reasonable grounds for suspecting that it is

(a) terrorist property or property derived from a [serious offence]; or

(b) intended by any person for use, directly or indirectly, in the commission of a [serious offence].

(2) Currency detained under subsection (1) shall not be detained for more than [24 hours] after seizure, unless a [magistrate] orders its continued detention for a period not exceeding [3 months] from the date of seizure, upon being satisfied that:

(a) there are reasonable grounds for the suspicion referred to in subsection (1)(b); and

(b) its continued detention is justified while:

(i) its origin or derivation is further investigated; or

(ii) consideration is given to the institution in [name of State] or elsewhere of criminal proceedings against any person for an offence with which the currency is connected.

(3) A [magistrate] may subsequently order continued detention of the currency if satisfied of the matters mentioned in subsection (2), but the total period of detention shall not exceed [2 years] from the date of the order made under that subsection.

(4) Subject to subsection (5), currency detained under this section may be released in whole or in part to the person on whose behalf it was imported or exported:

(a) by order of a [magistrate] that its continued detention is no longer justified, upon application by or on behalf of that person and after considering any views of the [Director of Public Prosecutions] to the contrary; or

(b) by [an authorized officer], if satisfied that its continued detention is no longer justified.

(5) No currency detained under this section shall be released where:

(a) an application is made under Part III, IV or V of this Act for the purpose of:

(i) the confiscation of the whole or any part of the currency; or

(ii) its restraint pending determination of its liability to confiscation; or

(b) proceedings are instituted in [name of State] or elsewhere against any person for an offence with which the currency is connected,

unless and until the proceedings relating to the relevant application or the proceedings for the offence as the case may be have been concluded.

20. [FIU’s] power to obtain search warrant

(1) The [FIU], may apply to [the Court] for a warrant to enter any premises belonging to or in the possession or control of a financial institution, cash dealer, or any officer or employee thereof, and to search the premises and remove any document, material or other thing therein for the purposes of the [FIU] [or law enforcement agency], as ordered by [the Court] and specified in the warrant.

(2) [The Court] shall grant the application if it is satisfied that there are reasonable grounds to believe that:

(a) the financial institution or cash dealer has failed to keep a transaction record, or report a suspicious transaction, as required by this Act;

(b) an officer or employee of a financial institution or cash dealer is committing, has committed or is about to commit an offence of money laundering or an offence arising out of a contravention of section 6(1) of the Terrorist Financing Act.

21. Property tracking and monitoring orders

For the purpose of determining whether any property belongs to or is in the possession or under the control of any person, the [FIU] [or a law enforcement agency], may, upon application to [the Court], obtain an order:

(a) that any document relevant to:

(i) identifying, locating or quantifying any such property; or

(ii) identifying or locating any document necessary for the transfer of any such property,

belonging to, or in the possession or control of that person be delivered forthwith to the [FIU] [or law enforcement agency];

(b) that the financial institution or cash dealer forthwith produce to the [FIU] [or law enforcement agency] all information obtained about any transaction conducted by or for that person during such period before or after the order as [the Court] directs.

22. Orders to enforce compliance with obligations under this Part

(1) The [FIU] may, upon application to [the Court], after satisfying [the Court] that a financial institution or cash dealer has failed to comply with any obligation provided for under section 12, 13, 14, 15 or 16, obtain an order against all or any officers or employees of the institution or dealer in such terms as [the Court] deems necessary, in order to enforce compliance with such obligation.

(2) In granting the order pursuant to subsection (1), [the Court] may order that should the financial institution or cash dealer fail without reasonable excuse to comply with all or any provisions of the order, such institution, dealer, officer or employee shall pay a financial penalty in the sum and in the manner directed by [the Court].

23. Secrecy obligations overridden

The provisions of this Act shall have effect notwithstanding any obligation as to secrecy or other restriction on disclosure of information imposed by law or otherwise.

24. Immunity where suspicious transaction reported

No action, suit or other proceedings shall lie against any financial institution or cash dealer, or any officer, employee or other representative of the institution acting in the ordinary course of the person's employment or representation, in relation to any action taken in good faith by that institution or person pursuant to section 14(1).

25. Immunity where official powers or functions exercised in good faith

No suit, prosecution or other legal proceedings shall lie against the Government, or any officer or other person in respect of anything done by or on behalf of that person, with due diligence and in good faith, in the exercise of any power or the performance of any function under this Act [or any Rule or order made thereunder].

26. Damages

Nothing in this Act affects the right of a person whose property has been restrained to seek the payment of damages, either actual or punitive, in cases where it is alleged that the action of [name of State] involved any abuse of process.

PART III - CONFISCATION ON CONVICTION

Division 1 - Confiscation and Pecuniary Penalty Orders

27. Application for confiscation order or pecuniary penalty order

(1) Where a person is convicted of a serious offence, the [Attorney-General] [Director of Public Prosecutions] may, not later than [6 months] after the conviction, apply to the [name of Court] for one or both of the following orders:

(a) a confiscation order against property that is tainted property in respect of the offence;

(b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.

(2)