Of the thirty nine passed, thirty six were assented to and therefore became law when published in the Gazette, or on such other dates prescribed by Order. (Please refer to Appendix A and the Commentary and Analysis section).
Major Acts of business interest passed in 2009 are as follows:
1. Anti-Money Laundering and Countering the Financing of Terrorism Act 2009
2. Insurance (Supplementary Provisions) Act 2009
3. Money Transfer Agencies (Licensing) Act 2009
4. Holiday with Pay (Amendment) Act 2009
5. Occupational Safety and Health (Amendment) Act 2009
6. Bills of Sale (Amendment) Act 2009
7. Rice Factories (Amendment) Act 2009
8. National Insurance and Social Security (Amendment) Act 2009
Of the Bills before Select Committees, the following are major ones of business interest:
1. Credit Reporting Bill 2009
2. Legal Practitioners (Amendment) Bill 2009
The Freedom of Information Bill 2006 tabled in May 2006 and again in November 2006 is still listed on the Order Paper of the National Assembly. The Bill was tabled by MP Raphael Trotman but as a private member’s bill; he has not sought leave to present the Bill citing lack of support from the ruling PPP/C. See comment 1 below.
Anti-Money Laundering and Countering the Financing of Terrorism Act 2009
Bill No. 18/2007 was tabled in the National Assembly on 7 June 2007 but was committed to a Special Select Committee for consideration. The ten-member Committee was chaired by the Minister of Finance and met on sixteen occasions over a two year period. The Committee received submissions from the Office of the Commissioner of Insurance, Guyana Securities Council, Guyana Association of Bankers, Bank of Guyana and Christopher Ram, Managing Partner of Ram & McRae.
The Act provides for the establishment and management of a Financial Intelligence Unit with a Director, an Attorney-at-law, and an accountant appointed by the Minister of Finance, and other personnel appointed by the Director.
Among the offences listed as serious inby the Act are terrorism, trafficking in persons, drugs, or ammunition, sexual exploitation, corruption and bribery, counterfeiting, smuggling and insider trading. The Act provides for unlawful proceeds from such crimes to be identified, traced, frozen, seized and forfeited.
Reporting entities are required to establish and maintain records as set out by the Act and to report suspicious transactions to the Financial Intelligence Unit. Such entities include banks, money transfer agencies, cambios, pawn-broking entities, credit unions, casinos, used car and car parts dealers, insurers and unit trusts. Attorneys-at-law, notaries, other independent legal professionals and accountants are considered reporting entities in respect of certain clients’ transactions on, namely, buying and selling real estate, managing client monies, etc.
The Act repeals and replaces the Money Laundering (Prevention) Act 2000. See comment 2 below.
Insurance (Supplementary Provisions) Act 2009
This Act replaced the Commissioner of Insurance with the Bank of Guyana, as the authority to administer the Insurance Act 1998. The Act also allows the Bank to nominate any person for the Court to appointment as Judicial Manager. See comment 3 below.
Money Transfer Agencies (Licensing) Act 2009
This Act requires a prospective money transfer agency to apply annually to the Bank of Guyana for a licence for that purpose, and for agents of the agency to be registered with the Bank. Licensees under the Dealers in Foreign Currency (Licensing) Act 1989 and any related party, holding company, subsidiary or other affiliate of such licensee may not hold a money transfer agency licence. The Act does not apply to a licensed depository financial institution under the Financial Institutions Act 1995.
Agencies and Agents are specifically required to comply with the Anti-Money Laundering and Countering the Financing of Terrorism Act 2009. See comment 4 below.
Holiday with Pay (Amendment) Act 2009
The Act repeals and re-enacts section 9 of the principal Act which deals with “Offences penalties and court order” (sic); amends section 11 which deals with the institution of prosecutions by the Chief Labour Officer; and replaces the word ‘holidays’ with ‘leave’ throughout the Act.
Occupational Safety and Health (Amendment) Act 2009
The amendments sought primarily to remove redundancies, and clarify the relationship between the principal Act and the Employment of Young Persons and Children Act (Cap. 99:01).
Bills of Sale (Amendment) Act 2009
The amendment extends the renewal period of Bills of Sale from once yearly to once every three years.
Rice Factories (Amendment) Act 2009
Manufacturers (millers) may now owe individual farmers only up to five percent of the value of paddy supplied, requires the payment of fifty percent of such debts within fourteen days (two weeks), and the balance within forty-two days (six weeks).
National Insurance and Social Security (Amendment) Act 2009
Three sections of the principal Act were amended to provide for increased penalties for breaches while two new sections were inserted as follows:
1. Section 17A provides for the General Manager of the Scheme to submit records of contributions and annual compliance reports to employees and employers respectively;
2. Section 55 equates the principal Act with the Procurement Act 2003 by requiring every employer or self-employed person who tenders for a government contract to submit a certificate of compliance. See comment 5 below.
Orders
Orders were made primarily to bring legislation into force and to transfer properties to / from the National Industrial and Commercial Investments Limited.
2009 legislation brought into force by Orders: the Anti-Money Laundering and Countering the Financing of Terrorism Act 2009, the Money Transfer Agencies (Licensing) Act 2009, and the Insurance (Supplementary Provisions) Act 2009.
2008 legislation brought into force in 2009 by Orders: the Telecommunications (Amendment) Act 2008, parts of the Interception of Communications Act 2008, the Evidence and Motor Vehicles and Road Traffic (Amendment) Act 2008, and the Criminal Procedure (Plea Bargaining and Plea Agreement) Act 2008.
Regulations
Significant regulations include:
1. Guyana Rice Development Board (Export Licence) Regulations 2009 which provides for applications for licences to carry on the business of export of paddy or rice or any product of paddy.
2. Rules, Policies and Procedures Manual (Amendment) Regulations 2009 which provides for amended rationalised job/position titles in the Audit Office and for an increase in the authorised strength of the Audit Office from 223 to 227 personnel. See Commentary and Analysis.
3. Money Transfer Agencies (Licensing) Regulations 2009 stipulating the fees, forms and record keeping requirements for such agencies.
Ram & McRae’s Comments
1. It is time that Article 146 of the Constitution is recognised and a Freedom of Information Act passed. Mr. Trotman may wish to consider seeking leave to present the bill and thus test the reception it will receive by the other parliamentary parties. We understand that the reason for the delay or abandonment of the Opposition (Benefits and Other Facilities) Bill 2009 may be tit-for-tat for the Leader of the Opposition’s voting against Former Presidents (Benefits and other Facilities) Act 2009. However, the Estimates provide for a more than 100% increase in expenditure for the office of the Leader of the Opposition.
2. As far as we are aware, no cases were ever brought under the 2000 Act and therefore either the law or the Financial Intelligence Unit was ineffective. The lack of submissions from the public and the effectiveness of the Select Committee in strengthening the legislation are causes for concern. Mr. Ram in his presentation for example noted that customs and tax evasion were not listed as serious crimes. We also believe that the limitations to narrowly specified transactions in respect of the professions would encourage further tax evasion and money-laundering.
3. We had recommended in Budget Focus 2009 the establishment of a Financial Services Commission (FSC) under which the supervisory functions of the Bank of Guyana, Securities Council and the Office of the Commissioner of Insurance should be brought. We also recommended that the Financial Intelligence Unit should be placed within the Bank of Guyana or under the FSC. It seems that the Government prefers a multiplicity of under-resourced regulators to a strong effective entity.
4. This Act requires such businesses to retain accounting records for a period of five years only. On the other hand, the Income Tax Act requires such records to be maintained for a period of eight years. This obvious conflict and confusion need to be resolved without delay.
5. Concerns have been raised by the Chairman of the National Insurance Board, Dr. Roger Luncheon on whether the records of contributions would reach employees if sent to employers. The business community is concerned that compliance certificates are only valid for one month, regardless of the compliance history of the applicant. This measure is excessively bureaucratic, costly, would be ineffective, and exploited by the unscrupulous.
6. Some of the Acts require an Order to bring them into operation. Please refer to column 3 of Appendix A.
