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Vanuatu Interactive Gaming (Amendment) Act 2017

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REPUBLIC OF VANUATU


VANUATU INTERACTIVE GAMING (AMENDMENT) ACT NO. 22 OF 2017

Arrangement of Sections



REPUBLIC OF VANUATU

Assent: 02/01/2018
Commencement: 05/01/2018

VANUATU INTERACTIVE GAMING (AMENDMENT) ACT NO. 22 OF 2017

An Act to amend the Vanuatu Interactive Gaming Act [CAP 261] and for related purposes.

Be it enacted by the President and Parliament as follows-

  1. Amendments

The Vanuatu Interactive Gaming Act [CAP 261] is amended as set out in the Schedule, and any other item in the Schedule has effect according to its terms.

  1. Commencement

This Act commences on the day on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF VANUATU INTERACTIVE GAMING ACT [CAP 261]

  1. Whole of the Act (other than the definition of Minister in section 1, section 7, subsection 34(4), sections 38 and 44)

Delete “Minister” (wherever occurring), substitute “Regulator”

  1. Section 1

Insert in their correct alphabetical positions:

“ “beneficial owner” has the meaning given by section 1A;

“confidential information” means information that is supplied to or obtained by the Regulator in the performance of his or her functions or the exercise of his or her powers under this Act, but does not include information that:

(a) can be disclosed under any provision of this Act; or

(b) is already in the public domain; or 


(c) consists of aggregate data from which no information about a specific person or business can be identified;

“controller” of an applicant for a licence or a licensee means a person who exercises influence, authority or power over decisions about the applicant’s or licensee’s financial or operating policies, including as a result of, or by means of, a trust, agreement, arrangement, understanding or practice, and “control” has a corresponding meaning;

“domestic regulatory authority” means a body or agency established by or under a law of Vanuatu that:

(a) grants or issues under that law or any other law licences, permits, certificates, registrations or other equivalent permissions; and

(b) performs any other regulatory function related to a matter referred to in paragraph (a), including developing, monitoring or enforcing compliance with standards or obligations prescribed by or under that law or any other law;

“Financial Intelligence Unit” means the Financial Intelligence Unit established under section 4 of the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014;

“foreign government agency” means:

(a) a body or agency established by or under a law of a foreign country; or

(b) an arm, ministry, department or instrumentality of the government of a foreign country; or

(c) a body or agency of a foreign country set up by administrative act for governmental purposes;

“foreign serious offence” means:

(a) an offence against a law of another country that, if the relevant act or omission had occurred in Vanuatu, would be an offence against the laws of Vanuatu, for which the maximum penalty is imprisonment for at least 12 months; or

(b) an offence prescribed by the regulations;

“foreign tax evasion offence” means conduct that:

(a) amounts to an offence against a law of a foreign country; and

(b) relates to a breach of a duty relating to a tax imposed under the law of the foreign country (whether or not that tax is imposed under a law of Vanuatu); and

(c) would be regarded by the courts of Vanuatu as an offence of fraudulent evasion of tax for which the maximum penalty is imprisonment for at least 12 months, had the conduct occurred in Vanuatu;

“guidelines” means guidelines made under section 42C;

“key person” of an applicant for a licence or a licensee means a beneficial owner, owner, controller, director or manager of the applicant or licensee;

“manager” of an applicant for a licence or a licensee means:

(a) an individual who occupies the position of the chief executive officer (however described) of the applicant or licensee; or

(b) an individual who under the immediate authority of the chief executive officer or a director of the applicant or licensee, exercises the management functions of the applicant or licensee;

“owner” of an applicant for a licence or a licensee means a person who has a legal entitlement of 25% or more of the applicant or licensee by way of ownership of shares or otherwise, and “own” and “ownership” have a corresponding meaning;

“Regulator” has the meaning given by subsection 34(1);

“regulatory law” means a law that provides for:

(a) the grant or issue of licences, permits, certificates, registrations or other equivalent permissions; and

(b) other regulatory functions related to a matter referred to in paragraph (a), including monitoring or enforcing compliance with standards or obligations prescribed by that law;

“Sanctions Secretariat” means the Sanctions Secretariat established under section 17 of the United Nations Financial Sanctions Act No. 6 of 2017;”

  1. Section 1 (definition of “law enforcement agency”)

Repeal the definition, substitute

“ “law enforcement agency” means:

(a) the Vanuatu Police Force; or

(b) the Office of the Public Prosecutor; or

(c) the department responsible for customs and inland revenue; or

(d) the department responsible for immigration; or

(e) such other persons prescribed for the purposes of this definition;”

  1. Section 1 (definitions of “close associate”)

Repeal the definition.

  1. Section 1 (definition of “executive officer”)

Repeal the definition.

  1. After section 1

Insert in Part 1

1A. Meaning of beneficial owner

(1) A beneficial owner of an applicant for a licence or a licensee is a natural person who ultimately owns or ultimately controls the applicant or licensee.

(2) For the purpose of subsection (1), ultimately owns and ultimately controls include circumstances where ownership or control is exercised:

(a) through a chain of ownership; or

(b) by a means of indirect control that may not have legal or equitable force, or be based on legal or equitable rights.”

7 Paragraph 3(2)(a)

(a) Delete “VT 20,000,000”, substitute “VT 25 million”

(b) Delete “10 years”, substitute “15 years”

8 Paragraph 3(2)(b)

(a) Delete “VT 100,000,000”, substitute “VT 125 million”

9 After paragraph 4(1)(c)

Insert

“(ca) include the following information:

(i) details of each key person of the applicant;

(ii) details as required by the Regulator on whether a beneficial owner of the applicant is a beneficial owner, owner or controller of an entity licensed or registered under a regulatory law of Vanuatu or a foreign jurisdiction;

(iii) details of the source of funds used to pay the capital of the applicant; and”

  1. Subsection 5(2)

Delete “After consultation with the Regulator, the Minister”, substitute “The Regulator”

  1. Paragraph 5(3)(a)

Repeal the paragraph, substitute

“(a) whether each key person of the applicant is a fit and proper person;”

  1. Paragraph 5(3)(c)

Repeal the paragraph, substitute

“(c) whether the Regulator is satisfied:

(i) of the source of funds used to pay the capital of the applicant; and
(ii) that the source of funds are not tainted with illegality; and”
  1. After Subsection 5(3)

Insert

“(3A) In deciding under paragraph (3)(a) whether a key person is a fit and proper person, the Regulator must have regard to:

(a) whether the person has been convicted of an offence or is subject to any criminal proceedings; and

(b) whether the person is listed on a United Nations Financial Sanctions list, a financial sanctions list under the United Nations Financial Sanctions Act No. 6 of 2017 or a financial sanctions list of a law of any jurisdiction; and

(c) any other fit and proper criteria in the guidelines.”

  1. Subsection 6(2)

Repeal the subsection, substitute

“(2) The Regulator may obtain from a law enforcement agency a report on any key person of the applicant.”

15 Subsection 6(4)

Delete “VT 5,000,000”, substitute “VT 15 million”

  1. Subsection 8(1)

Delete “, after consultation with the Regulator,”

  1. Subsection 11(1)

Delete “, after consultation with the Regulator,”

  1. After paragraph 11(1)(ba)

Insert

“(bb) the licensee has contravened a provision of the Anti–Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014 and that contravention has resulted in the use of an enforcement measure under Part 10AA of that Act; or

(bc) the licensee has failed to comply with subsection 24(1); or”

  1. Subsection 11(2)

Delete “section 5(3)”, substitute “subsections 5(3) and (3A)”

  1. Subsection 12(1)

Delete “, after consultation with the Regulator,”

21 Subsection 14(3)

Delete “VT 5,000,000”, substitute “VT 125 million”

  1. Subsection 15(2)

Delete “, after consultation with the Regulator,”

23 Subsection 18(2)

Delete “VT 10,000,000”, substitute “VT 125 million”

24 Subsection 20(3)

Delete “VT 50,000,000”, substitute “VT 125 million”

25 Subsection 22(4)

Delete “VT 50,000,000”, substitute “VT 125 million”

26 Subsection 23(3)

Delete “VT 50,000,000”, substitute “VT 125 million”

  1. Section 24

Repeal the section, substitute

“24. Notification of changes

(1) A licensee must give the Regulator written notice of:

(a) a change in a key person of the licensee; or

(b) a change in the circumstances of a key person of the licensee that may affect whether he or she meets fit and proper criteria; or

(c) a reduction in the licensee’s financial resources; or

(d) a change in the source of funds used to pay the capital of the licensee,

within 7 days after the change or reduction occurs

(2) If a licensee fails to comply with subsection (1), the licensee commits an offence punishable upon conviction by a fine not exceeding VT 125 million.”

28 Subsection 25(4)

Delete “VT 10,000,000”, substitute “VT 125 million”

29 Subsection 26(6)

Delete “VT 20,000,000”, substitute “VT 75 million”

30 Subsection 28(4)

Delete “VT 50,000,000”, substitute “VT 75 million”

  1. After section 29

Insert in Part 3

29A. Regulator may require information and documents relating to licensee

(1) Without limiting section 29, the Regulator may, by notice in writing to a licensee, require the licensee to provide the Regulator with information or documents, or both, specified in the notice within the period set out in the notice.

(2) The information or documents must relate to whether the licensee:

(a) is a suitable person to continue to hold a licence; or

(b) is complying with the provisions of this Act, the Regulations or the code.

(3) If the licensee:

(a) refuses or fails to give the Regulator the information or documents required by the Regulator; or

(b) knowingly or recklessly gives the Regulator information or documents that are false or misleading,

the licensee commits an offence punishable upon conviction by a fine not exceeding VT 75 million.

29B. On-site inspections

(1) Without limiting section 29, the Regulator may conduct on-site inspections at the business premises occupied by a licensee at any time during normal business hours.

(2) The Regulator may for the purposes of subsection (1):

(a) enter the business premises of the licensee during ordinary business hours; and

(b) inspect and take copies of any books, accounts and documents of the licensee that are or may be relevant to determining whether the licensee:

(i) is a suitable person to continue to hold a licence; or

(ii) is complying with the provisions of this Act, the Regulations or the code.

(3) The licensee must cooperate fully with the Regulator by:

(a) giving the Regulator all the information, and making available the documents it requires; and

(b) if necessary, giving the Regulator appropriate workspace and reasonable access to office services, during the inspection.

(4) If a person intentionally obstructs the Regulator in the exercise of the Regulator’s powers under this section, the person commits an offence punishable upon conviction by:

(a) in the case of a natural person - a fine not exceeding VT 15 million or imprisonment not exceeding 5 years, or both; or

(b) in the case of a body corporate - a fine not exceeding VT 75 million.

(5) In this section, a reference to the Regulator includes an inspector.

(6) An inspector must:

(a) obtain the consent of the licensee to exercise powers under this section or in the absence of consent must obtain a search warrant from the Magistrates’ Court; and

(b) produce written evidence of his or her appointment if required to do so while carrying out on-site inspections.

(7) A magistrate must not issue a warrant unless he or she is satisfied by information on oath that:

(a) an offence against this Act has been or is being committed, or is likely to be committed, on the premises; and

(b) evidence of the commission, or likely commission, of the offence is likely to be found on the premises.

29C. Regulator may request information and documents

For the purpose of performing a function or exercising a power under this Act, the Regulator may request information or documents, or both, from any or all of the following:

(a) the Financial Intelligence Unit;

(b) a supervisor within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014;

(c) the Sanctions Secretariat;

(d) a law enforcement agency;

(e) a domestic regulatory authority;

(f) a foreign government agency that carries out functions corresponding or similar to the functions carried out by a body or agency referred to in paragraph (a), (b), (c), (d) or (e).”

32 Subsection 35(5)

Delete “VT 50,000,000”, substitute “VT 125 million”

  1. Section 41

Repeal the section.

  1. Section 42

Repeal the section, substitute

42. Disclosure of confidential information

(1) The Regulator may disclose confidential information if the disclosure:

(a) is required or authorised by the Court; or 


(b) is made for the purpose of performing a function or exercising a power under this Act; or


(c) is made to the Financial Intelligence Unit for the purpose of performing a function or exercising a power under the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014; or

(d) is made to a supervisor within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act No. 13 of 2014 for the purpose of performing a function or exercising a power under that Act; or

(e) is made to a law enforcement agency for the purpose of investigating or prosecuting an offence against a law of Vanuatu for which the maximum penalty is a fine of at least VT 1 million or imprisonment for at least 12 months; or

(f) is made to a law enforcement agency for the purpose of investigating or taking action under the Proceeds of Crime Act [CAP 284]; or

(g) is made to a domestic regulatory authority for the purpose of carrying out its regulatory functions; or

(h) is made to the Sanctions Secretariat for the purpose of performing a function or exercising a power under the United Nations Financial Sanctions Act No. 6 of 2017; or

(i) is made to a foreign government agency in accordance with section 42A.

(2) A person who contravenes subsection (1) commits an offence punishable upon conviction by:

(a) for an individual-a fine not exceeding VT 15 million or imprisonment for a term not exceeding 5 years, or both; and

(b) for any other person - a fine not exceeding VT 75 million.

42A. Disclosure to foreign government agency

The Regulator may disclose confidential information about a licensee to a foreign government agency if:

(a) the Regulator is satisfied that the disclosure is for the purpose of:

(i) performing a function or exercising a power under the foreign government agency’s own regulatory legislation, including investigating a breach of that legislation; or

(ii) performing a function or exercising a power under the foreign jurisdiction’s anti-money laundering and counter-terrorism financing regulation and supervision laws; or

(iii) performing a function or exercising a power under the foreign jurisdiction’s financial sanctions laws; or

(iv) investigating or prosecuting a foreign serious offence or a foreign tax evasion offence; or

(v) investigating or taking action under the foreign jurisdiction’s proceeds of crime laws; and

(b) the Regulator is satisfied that:

(i) the information will be used for a proper regulatory, supervisory or law enforcement purpose; and

(ii) the agency is subject to adequate restrictions on further disclosure.

42B. Indemnity from liability

A person is not subject to any civil or criminal liability, action, claim or demand for anything done or omitted to be done by the person in good faith under or for the purposes of this Act.

42C. Guidelines

For the purposes of this Act, the Regulator may make written guidelines, including setting out the criteria for determining whether a person is a fit and proper person.”

  1. Transitional provision for certain licensee information

(1) This provision applies to a licensee if, immediately before the commencement of this Act, the licensee’s licence was in force under the Interactive Gaming Act [CAP 261].

(2) The licensee must provide the Regulator with the information required under subparagraphs 4(1)(ca)(i), (ii) and (iii) of the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act (“the additional information”) within 6 months after the commencement of this Act.


(3) If the licensee does not provide the additional information as required under subsection (2), the Regulator may by notice in writing to the licensee revoke the licensee’s licence.

(4) If the licensee does provide the additional information as required under subsection (2), but the Regulator is not satisfied with the additional information having regard to the matters set out in paragraphs 5(3)(a) and (c) of the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act, the Regulator may by notice in writing to the licensee revoke the licensee’s licence.

(5) Subsections 11(3), (4) and (5) of the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act apply to a revocation.

(6) A term or expression used in this item has the same meaning as in the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act.

  1. Transitional provision for licences

(1) If a licence is in force immediately before the commencement of this Act, the licence continues in force, on and after that commencement, as if it were a licence issued under the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act.

(2) A term or expression used in this item has the same meaning as in the Vanuatu Interactive Gaming Act [CAP 261] as amended by this Act.



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URL: http://www.paclii.org/vu/legis/num_act/viga2017354