I, Thomas Story, Acting Chief Executive Officer, Australian Transaction Reports and Analysis Centre, make this Instrument under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

Dated 2 May 2008

[Signed]

1 Name of Instrument

  This Instrument is the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2008 (No. 3).

2 Commencement

 This Instrument commences on the day after it is registered.

3 Amendment

 Schedule 1 amends the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

Schedule 1 Amendment of the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

1. After Chapter 21

Insert:

Chapter 22 Exemption of certain types of transactions relating to the over-the-counter derivatives market

22.1 These Anti-Money Laundering and Counter-Terrorism Financing Rules (Rules) are made under section 229 for subsection 247(3) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).

22.2 Subject to paragraph 22.3, the AML/CTF Act does not apply to a designated service that:

(1) is of a kind described in item 35 of table 1 in section 6 of the AML/CTF Act; and

(2) relates to the over-the-counter derivatives market in Australia relating to the wholesale price of electricity, gas, or renewable energy certificates.

22.3 The exemption in paragraph 22.2 only applies if:

(1) the person who provides the designated service:

(a) is registered as, or is taken to be, a Market Participant under the National Electricity Rules; or

(b) is registered as a Market Participant under the Wholesale Electricity Market Rules; and

(c) one of the following applies:

(i) the person holds an AFS licence that authorises that person to provide the designated service; or

(ii) the person acts through an agent that holds an AFS licence which authorises that agent to provide the designated service on behalf of the person, or is appointed as an authorised representative under section 916A of the Corporations Act 2001 to provide the designated service on behalf of the person; or

(iii) the person is, by regulation made under section 134 of the Electricity Industry Act 2004 (WA), exempt from the requirement to hold an AFS licence which authorises that person to provide the designated service; and

(2) the person who is the customer of the designated service:

(1) is registered as, or is taken to be, a Market Participant under the National Electricity Rules; or

(2) is registered as a Market Participant under the Wholesale Electricity Market Rules; or

(3) is acting on behalf of a person so registered.

22.4 Subject to paragraph 22.5, the AML/CTF Act does not apply to a designated service that:

(1) is of a kind described in item 33 of table 1 in section 6 of the AML/CTF Act; and

(2) relates to the over-the-counter derivatives market in Australia relating to the wholesale price of electricity, gas, or renewable energy certificates.

22.5 The exemption in paragraph 22.4 only applies if:

(1) the person who provides the designated service:
 

(a) is acting in the capacity of an agent of a person who is registered as, or is taken to be, a Market Participant under the National Electricity Rules; or

(b) is acting in the capacity of an agent of a person who is registered as a Market Participant under the Wholesale Electricity Market Rules; and

(c) one of the following applies:

(i) the person holds an AFS licence that authorises that person to provide the designated service; or

(ii) the person is appointed as an authorised representative under section 916A of the Corporations Act 2001 to provide the designated service; or

(iii) the person is, by regulation made under section 134 of the Electricity Industry Act 2004 (WA), exempt from the requirement to hold an AFS licence that authorises that person to provide the designated service; and

(2) the person who is the customer of the designated service:

(a) is registered as, or is taken to be, a Market Participant under the National Electricity Rules; or

(b) is registered as a Market Participant under the Wholesale Electricity Market Rules; or

(c) is acting in the capacity of an agent of a person so registered.

22.6 In this Chapter:

(1) ‘AFS licence’ refers to an Australian financial services licence granted under section 913B of the Corporations Act 2001;

(2) ‘renewable energy certificates’ are transferable instruments created under Commonwealth, State or Territory laws and issued to a person who generates electricity from a renewable energy source (or otherwise reduces non-renewable energy consumption);

(3) ‘National Electricity Rules’ refers to the Rules made pursuant to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA);

(4) ‘Wholesale Electricity Market Rules’ refers to the market rules made under the Electricity Industry (Wholesale Electricity Market) Regulations 2004 (WA).

Reporting entities should note that in relation to activities they undertake to comply with the AML/CTF Act, they will have obligations under the Privacy Act 1988, including the requirement to comply with the National Privacy Principles, even if they would otherwise be exempt from the Privacy Act.  For further information about these obligations, please go to http://www.privacy.gov.au or call 1300 363 992.