Financial Intelligence Centre Amendment Bill [B33-2015]: deliberations

Meeting report

The Chairperson said that initially there was supposed to be a vote on the Financial Intelligence Centre Amendment Bill at the first plenary after the State of the Nation Address, but that it would not be a major problem if the Committee did not manage meet to the deadline date of 27 February 2016 as set by the Constitutional Court.

Mr Olano Makhubela, Chief Director: Financial Investments and Savings in the National Treasury, said Treasury had met with industry players the previous week and that a risk based assessment versus a rules approach as currently governed by the Act, was still an issue to be discussed.

National Treasury report-back on Casino Association of South Africa (CASA) meeting
The Chairperson asked what came out of the meeting with CASA.

Mr Makhubela replied that it appeared that the current exemptions needed to be tweaked.

Mr Raymond Masoga, Director of Financial Integrity at National Treasury, said that the FIC undertook to include a provision for consultation to take place prior to any amendments or repeal of legislation being implemented. This would also include exemptions.

The meeting also agreed that casinos take reasonable steps to be able to identify prominent and influential people. The question of exemptions was a sticky point. It was still available but only as a transitional arrangement before full implementation of the current Bill.
 
Mr Pieter Smit, FIC Head of Legal Policy, said the meeting had reached common ground on how the Act applied to the casino business which was different to financial institutions. The meeting confirmed that it was not the bet that was the focus but rather the financial transactions, involving the changing of money into chips or vice versa, that was the focus. Also agreed to was that there was an exemption setting threshold where clients involved in small value transactions did not need to be identified.

Mr Smit replied that three major issues were covered in the meeting: what was a 'transaction' for the casino industry and how would the Act apply; low value transactions and the current exemptions the casino industry had and the on-going business relationships such as loyalty card members, and how FICA would be applied to these members.

He said the current Act had a definition of 'transaction' and the FIC were proposing the deletion of that definition because it could not provide a single definition to cover all the different definitions needed for the casino, banking, legal and other types of businesses.

Mr A Lees (DA) asked if it would be left up to the FIC to determine the differential definitions. If this was so, what kind of consultation would take place? If there was no agreement during consultation, who would be the arbiter?

Mr Smit replied that the instrument used would be guidance in the context of the FICA, not a rule. At the meetings, numerous people had raised the matter of consultation. FIC and Treasury had agreed to propose a clause on consultation that had to take place when guidance was given. On an arbiter, he said guidance was not a rule so a court would judge the application of the Financial Intelligence Centre Act. Somebody though had to make a final call and it was the FIC’s responsibility to make the decision.

The Chairperson asked what if there were differences between the chairperson and others.

Mr Smit replied that that in Australia, the FIC’s counterpart body there made rules and issued guidance.

The Chairperson said it must be made clear that that sufficient government consultation with institutions on draft legislation had to take place before it reached Parliament, though these institutions could not decide, as ultimately government decided.

Mr Makhubela said the question was whether one wanted to formalise that Treasury was the arbiter or whether one wanted to keep it informal.

The Chairperson said one should steer away from encouraging lobbying because the casino industry was powerful and one had to tread carefully.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, pointed out about consultation that one should note the Promotion of Administrative Justice Act where if a rule affected the public, the department had to follow a public enquiry notice. There were general rules requiring consultation.

Mr Smit replied that the casino industry currently had an exemption with a threshold set at R25 000. In the risk based approach, that value was too high and the amount would be provided for in the regulations and was valid for casino clients which had an ongoing relationship with a casino. This was not applicable for once-off business the casino conducted. Currently the casinos experienced difficulties applying this to their loyalty card members.

The Committee approved in principle the agreements reached by FIC and CASA.

National Treasury report-back on Law Society of South Africa (LSSA) meeting
Mr Masoga said the issues discussed with the Law Society had been similar to those discussed with CASA. LSSA’s concern had been about risk management and control of compliance programmes where they thought they would need to develop sophisticated software, but this was not so. They needed to be proactive in identifying risk when doing implementations so that they were able to give input to the Department. The transition would be similar to CASA’s case and a timeframe would be developed with supervisory bodies on how long it would take to be ready for implementation. The engagement with LSSA should be with the supervisory groups to get a supervisory framework so that everyone could be aligned with industry expectations, with training on the new provisions as well as having a joint committee with FICA which would allow for extra consultation.

The Chairperson asked who LSSA's supervisory body was and why these issues were raised? Would it apply to single lawyers and how and why would supervisory bodies’ workload increase?

Mr Smit replied that there had been a consultation process with provincial law bodies. These bodies were self regulating bodies as well as supervisory bodies and there needed to be more engagement with lawyers because of the difficult nature of supervision. Lots of peer learning was needed and the FIC had prepared a space for this to occur. The FIC would apply only to certain types of work that attorneys did , for example setting up companies. The rest would be exempt, such as bail. It would apply to all legal practices, big or small.

Mr Steve Mkhwanazi Senior Manager at South African Reserve Bank, said accounting institutions applied the rules of FICA in the past, now there would be no rules to apply as it would be under a risk based assessment. There were no rules on how to identify a client and so the institutions would have to develop a risk assessment programme, but the programme had to be within a framework and be done under a supervisory body which would assess whether the risk programme fell within the framework. The FIC and supervisory bodies would provide guidance on grey areas especially for small institutions.

Mr D Maynier (DA) asked what the implications of these two meetings with CASA and LSSA had been. Were there any specific amendments or reviews required?

Mr Smit replied that it was more a question of what happened subsequent to the adoption of the Bill, on guidance about its application.

Mr Maynier asked if the exemptions would be granted by the Minister or via practice notes.

Mr Smit replied that the exemptions would be granted by the Minister, this would include the time period. There was a discussion on whether the Minister needed to consult.

National Treasury and FIC responses to public submissions
Mr Smit said that interested parties had concerns on the status of current regulations and exemptions. Large sections of the current regulations were incompatible with risk based assessment and would have to be repealed. The Bill’s Schedules would need to be reviewed and work was currently being done on the Schedules. There was agreement that there should be a provision for a consultative process. They agreed that regulatory guidance was also required.

On the relevance of the national risk assessment, Treasury felt that it was not wise to write the need for government first to complete a national risk assessment into the legislation so as to keep the legislation flexible. Industry would be happy if there was a law that needed to be adhered to.

Ms Kamini Naidoo of Banking Association South Africa gave clarification on the national risk assessment. In order for the sector and institutions to conduct proper risk assessments, it would need the output of the national assessment. BASA did not specifically request that this be set out in legislation.

Mr Makhubela acknowledged that the national risk assessment should have been done some time ago but felt that having an explicit clause in the Bill was superfluous.

Mr Smit said risk assessment at the national level was not a requirement for institutional risk assessment.

Mr Maynier felt that there was an obligation for the executive to carry out a national risk assessment. He asked when last one had been done.

Mr Masoga replied that it had been in 2012. He added that there were broader challenges, that it was extensive and costly to do a proper risk assessment at the national level.

Mr Smit said less than half of the northern countries had completed their national risk assessment. The UK had only completed their first assessment three to four months ago.

Mr Makhubela said that it was not that government was not discussing the matter. There had been discussions and it required buy in from some key players.

Mr Maynier suggested that provision be made in the legislation to get the assessment completed and updated.

The Chairperson asked if the European countries had done their assessments before passing legislation.

Mr Jantjies said the risk assessments were subjective. What were the implications for industry if it did not have the national risk assessment?

Mr Masoga said the assessments were not a prerequisite to apply the Act but would help industry to improve their assessment. The Bill would be able to be implemented.

Ms Anna Rosenberg of the Association for Savings and Investment South Africa of (ASISA) had asked for industry perspective on implications. ASISA felt there should be some provision in the Bill for a national risk assessment to be completed. Institutions were being asked to put in risk based assessments themselves. From the perspective of putting measures in place to deter money laundering, how did institutions know that that was happening without a national risk assessment. So it was really needed. This applied even to exemptions as institutions often did not know if money laundering and suchlike was occurring.

Mr Maynier said the Committee should seriously consider putting in a provision compelling the executive to complete the national risk assessment. This would complement the objectives of the Bill, assist FICA and compel government departments to complete risk assessments and would also assist industry.

The Chairperson said he did not agree on that point of view. Its inclusion could be used by industry to rationalise and escape doing its own risk assessments.

Mr Smit said work had already started on money laundering and terrorism financing. Most of the work was on the processing side. FICA hosted workshops with potential role players to undertake threat assessment. There was a draft memorandum which would be taken to the Minister and then on to Cabinet. He said it was not a once off process and the institutional process would be an ongoing one.

He said the requirements of the Bill went beyond the task force recommendations and this issue was still up for discussion. The specific provisions had lots of detail and the FIC had tried to stick to international standards. A possible policy issue was whether a threshold level was desirable, as a threshold level was not prescribed.

The Chairperson said that a threshold level which could be changed by the Minister should be looked into.

Mr Smit said there had been a proposal that a preamble be added to the Bill but Treasury did not see the need for a preamble. If a preamble was needed, it would have to be in the principal Act not in an amendment Bill.

He said Treasury acknowledged that the regulations implied additional compliance costs. There was merit in having sound regulations and South Africa had fallen behind the international level on this score. Most of the resources would be utilised in the high risk category. This would be helpful in that fewer resources would be needed for the low risk ordinary individual category.

The Chairperson said that costs would in all likelihood be carried by consumers, was there any norm on the increase in costs as occurred elsewhere in the world?.

Mr Smit said he did not believe that such a study had been undertaken anywhere.

On the financial implications, Mr Masoga said there was a good chance that costs would go up but this would taper as risk based analysis was embedded in. In addition while there were compliance costs, this had to be seen within the context of reputational cost to institutions if they did not comply.

Mr Maynier asked what the costs for ASISA members would be.

Ms Rosenberg said that ASISA did not have figures available and would not know until details of the Bill were finalised.

Ms Naidoo said information had been requested from members and indications were that it would run into hundreds of millions of rand.

Mr Masoga said they acknowledged there would be costs but that it was in the early stages of implementation and there were areas where costs could be lowered.

The Chairperson said the Committee Report on the Bill would include an awareness of the costs that consumers ultimately would have to bear as well as an appreciation of taking costs into account during the phasing in and transitional periods. Given the low growth rate of the country, this was not the ideal time to impose a burden on industry.

Mr Maynier said he was interested in BASA’s final report and what it contained on costs and recommendations to mitigate the costs of implementation.

The Chairperson said that ultimately BASA’s report would be recommendations, but that national interest would be the key factor.

Mr Smit said point 12 of the response document related to financial inclusion and said that the Bill would allow institutions more flexibility in the range of mechanisms available for them to identify their clients.

The Chairperson said some of the Committee were not convinced on the extent the Bill would encourage financial inclusion.

Mr Masoga said the Bill would reduce the burden for users needing to meet stringent compliance requirements which would have discouraged people. He also said a few institutions were developing new products which would allow more people to use the formal financial systems.

Mr Makhubela said there was a knock-on effect on the need for storage of information and that administration requirements would be less which would lead to reducing bank costs. This would also apply for reducing costs for the micro insurance industry.

Mr Masoga said it would also make it easier to do remittances.

Mr Lees asked about the risk to the institution that a transaction might be illegal and therefore lead to an institution not wanting to do the transaction.

The Chairperson asked how it would apply to illegal residents.

Mr Smit said the Bill was not designed for illegal migrants. If the customer was identified then it was fine. In immigration legislation, if a person was an illegal it had to be reported to the Department of Home Affairs.

On the cost of compliance and the risk issues, he said Treasury was concerned where an institution decided that doing a particular type of business was not profitable. This was called de-risking and was a serious concern for regulators. He used transacting with migrants as an example .

Mr Masoga this was a global problem and the financial action task force was busy grappling with this issue.

Ms D Mahlangu (ANC) asked about illegals in the country. Was the FIC not aware of the transactions of these illegals as they did not operate through the normal banking channels and was there nothing one could do about this.

Mr Smit replied that if the FIC received information that pointed to illegal activity it was obligated to make the information available to the appropriate authorities. The FIC did not have the power to do investigations. The ability to get information was hampered if financial activity was outside of the formal financial sector.

On point 17 of the document, he said it was about how institutions should manage risk within the institution, what they knew about their customer and being able to identify that something suspicious was happening. Treasury felt that while databases were a valuable, that was not the only means. The customer was the best source of information. This due diligence obligation could not be taken away from institutions

He said there were some comments, on point 18 of the document , on the offense provisions and what the elements of an offense in the FICA was. There were also comments on the fact that some criminal acts would now be decriminalised. It would not be offenses anymore, it would now be called compliance failures.

Point 19 of the document concerned recommendations that one of the sections of the FICA, that the way supervision was done be amended because it felt that the FIC would be an ‘uber’ supervisor amongst other supervisors. He said this was not the case because there was sufficient means for coordination already in the legislation. He said the issue arose because some supervisory bodies were more enthusiastic than others and it was felt that the FIC should play a controlling role.

Point 20 of the document was about the means available for institutions to be able to carry out identification of beneficial owners.

Finance Intelligence Centre Amendment Bill [B33-2015]: deliberations
Mr Pieter Smit, Executive Manager, Finance Intelligence Centre briefed the Standing Committee on the FIC Amendment Bill [B33- 2015].He said when the FIC dealt with the Bill, it referenced to the Bill clauses and not the Act sections.

He said the amendment of Clause 3 that was proposed was to add a reference to the implementation of sanctions order that emanated from the Security Council Resolution under Chapter V11 of the Charter of the United Nations. There were no comments on the whole clauses and he read the different provisions of the Act: (a)- the principal objective of the Centre was to assist in the identification of the proceeds of unlawful activities.(b) - collecting and sharing information available to it to investigating authorities, NPA, South African Revenue Service and intelligence services.(c) - confirmed expansion of FIC mandate and provided guidance in relation to implementation of the Security Council resolutions.

 Mr Smit mentioned that Clause 4 dealt with functions of FIC to deal with the execution of the objectives mentioned in the previous clause. He said Clause 4(a) dealt with authority to initiate analysis based on information in the possession of FIC while (b) confirmed exchange of information with other bodies and (c) confirmed expansion of FIC mandate and also provided guidance in relation to implementation of Security Council Resolution. He noted that there were no comments on the above.

 He said Clause 6 flowed from the other amendment to change the heading by adding the reference while Clause 7 was also an amendment of the heading to the first part of Chapter and the reference in the legend. The Executive Manager added that Clause 8 made provisions for not dealing with anonymous or fictitious clients.

Mr Smit said Clause 9 dealt with identification of customers and the steps that would be taken by the institution to verify the identity of the Customer were now included. He said the Clause would require the removal of the details in the prescribed steps. The reference to the prescribed steps was deleted as the steps prescribing the regulation would not continue to apply.

He mentioned that Clause 10 introduced a new element-21 A. He said the obligation to understand the relationship with a customer went further than verification. It required the obtaining of additional information such as the nature and the business of the customer and how the customer would transact in the future with the business. He said this applied in accordance with the resumation programme. He added that the information on the nature and purpose of the relationship, source of the funds was one that the institution took at face value from the customer as the institution had to independently verify the information. He added that there were no comments.

He noted that there were no questions on Clause 21(B)

Concerning Clause 21(C), Mr Smit noted that once a business relationship was formed with a customer, there was a need for the institution to revisit that relationship to understand whether the information about a customer were still accurate or if the circumstances had changed; to track whether the customer’s behaviour were suspicious. He added that whether this was done annually or six monthly would depend on the institution’s risk management programme.

Mr Smit said the bottom-line principle in Clauses 21D and E was that an institution could not do business with a customer that could not be identified

He said the issue of the substantive sections where the definitions were discussed earlier would apply in 21 F, G and H

Mr Smit said Clauses 11 and 12 worked together as sub clause 22 lumped together all the types of records the institution had to keep, adding that the concern was that it did not keep records. He said 22A 2(e) was one of the issues that required more clarification as the FIC could not be more specific about business correspondence as it was substantial.

Discussion
Mr D Maynier (DA) asked Mr Smit to clarify the difference between an 'investigating authority' and an 'investigating division in an organ of state' as listed in Clause 3(b).

Mr Smit replied that an investigating authority was an authority whose job was to investigate criminal activities of any kind such as the police. An 'investigative division in an organ of state' was a narrower concept where there might be internal investigation of corruption but not generally investigating criminal activity of any kind. Some Departments had such investigating capacities while others did not.

Mr Maynier said he was not sure on what authority these investigating institutions within a department had to exercise their functions. He was worried that the clause was broad, adding that the Committee could always flag it and come back to it.

The Chairperson replied that category 2 would be used as the Bill would be adopted tentatively. Some space would be left so that FIC could come back with technical arguments, otherwise it would not be acceptable.

Mr Maynier said the Executive Manager should give practical examples of when the authority in clause 4(a) was required. He said his reservation on Clause 3(b) stood.

Mr Smit replied that the FIC would either get the authority from a request made by a particular party or from a foreign counterpart organisation. If FIC became aware of a criminal investigation which was ongoing through media coverage, analysis was done to understand what could be contributed by FIC.

Mr Maynier said the provision was broad. He could understand if there was request from a foreign counterpart organisation but not through media coverage. He suggested that there should be reasonable text about suspicion of a criminal behaviour.

Mr Smit replied that the purpose of the analysis was to identify any suspicious activity as this warranted an investigation. This was done in the context of a broader framework of legislation on gathered intelligence.

The Chairperson asked if the extensions of the lessons were allowed.

Mr Smit replied that from a policy point of view, the Minister as the executive would be able to add or subtract from it.

The Chairperson said the battle against crime was overwhelming and presumably if the organisation identified to be added was not reasonably consistent with what was obtainable in South Africa.

Mr Maynier commented that his ideology was not to give the Minister the discretion.

Mr Frank Jenkins, Senior Parliamentary Legal Adviser, said it was not a tightly closed list as it included supervisory bodies and investigating authorities.

The Chairperson advised the Committee to do it. He said the Standing Committee would come back to it as it would be a category 3

Mr Makhubela, National Treasury, said it was category 2 as there was a difficulty with poor definition.

Mr Stephen Mkwanazi, SARB, said FIC would give guidance on Clause 9 as CASA had an exemption that the Minister had granted in the past.

The Chairperson responded that the guidance of FIC could not override the particulars of the Clause. He said the FIC should give a small text on what it could do as nothing could be done beyond what had been said .He added that everything that had been said was in the text.

Mr A Lees (DA) said the Minister could use his discretion that existed in the Act and if he decided not to or agreed that the Clause was fine as it was, Category two would be accepted.

The Chairperson sad the Clause was fine. The Standing Committee would make a report to the Parliament and would wait to see if the Minister would make a right decision. Clause 8 was accepted as Category 1.

The Chairperson asked if the Committee was accepting Clause 9 the way it was.

Mr Lees replied that “when an accountable institution engages with a prospective client to establish a business relationship” was a problem. He asked how this would apply to someone that walked in and walked out.

The Chairperson said the issue was dealt with in the previous meeting.

Mr Smit replied that it was not necessarily a person that walked in and out but one that opened an account transacted a business or established a business relationship. He added that from the point of view of FIC, it was important to complete a verification process before any of the above was done as this would clarify the profile of the customer and what to expect as a customer. He said if both the institution agreed at the onset not to transact a business the verification process would not be necessary.

Ms Karmani Naidoo, Financial Criminal Compliance Officer, First Rand, mentioned that the clause should stand over as it would be discussed in a Workshop the following day.

The Chairperson asked for the difference between 21 A (a) the nature of the business relationship concerned and (b) the intended purpose of the business relationship concerned.

Mr Smit replied that the sub paragraphs would differ depending on what kind of institution was dealing with a customer. He said in a banking context, the nature of the business relationship would probably be whether it was an investment, loan or transaction of account.

The Chairperson asked how complex and unusual transactions in 21C (a) (ii) were determined.

Mr Smit replied that what currently applied was S.29 of the Act which requested obligational institutions to report unusual or suspicious behaviour and transactions which have no apparent or lawful purpose.

The Chairperson asked if BASA and ASISA were subject to FIC meeting.

Mr Smit replied that as far as BASA was concerned, what delayed the process was the implication of BASA’s understanding of it. On CASA, he said the discussion around it was in the context of the understanding that most of the business transactions were once-off and this clause could not apply there.

The Chairperson said the Committee would defer the processing beyond what could be seen. He said the view of the Committee would be determined by the decision of the National Treasury.

Mr Lees said the problem with clause 12 was the issue of Casinos. He said gamblers put money in the machine and there were no records of a transaction

The Executive Manager replied that the casinos were moving towards a cashless system of operation as there would not have to be exchange of money. This is one of the things the FIC would have to deal with in the redemption process, adding that management of cash was a huge risk and a problem for the casinos.

Closing Remarks
The Chairperson commented that there would be management committee meetings of the Committee on 13, 14 and 15 February 2016. The Committee had underestimated the amount of time needed for discussion amongst the stakeholders. National Treasury had done what it could. The Standing Committee would bring National Treasury fewer rather than longer times to Cape Town. The Committee would deliver within the deadlines. Within the next three weeks, there would be clearer ideas of the Committee’s resources and capacities.

The meeting was adjourned.