Questioner: there is enforcement action against Star Casino’s as well as Crown in Australia and the consensus is that Star’s misdemeanors are worse than Crown’s in terms of AML. I know we’ve been talking about how fines are calculated but would you expect Star to receive an even higher fine than Crown? JN: That’s a very good question. For the rest of the audience, Star is the another casino in Australia. It held, until recently the only casino license in Sydney, and also holds two casino licenses in Queensland. And the issue which arose for Star was essentially after the first inquiry which took place in respect of Crown and various activities, during which in public hearings, there were comments about Star being extremely problematic for non compliance with anti money laundering laws and other laws. The staff continued similar conduct without actually looking into it. So that’s essentially the basis for the question of whether or not their conduct might be perceived to be more problematic. I think one of the interesting points in respect of the calculation of the fines that will be imposed by Austrac is that there are a number of statutory factors that must be taken into account in assessing the type of conduct. Essentially the level of concern, the period over which it took place, the extent to which management was aware of it. And there’s probably another 10 or so factors which are relevant, but one of them which is absolutely key is not necessarily taking into account the costs of doing business, but essentially the size of the entity, and what the impact of the fines might be. And it’s been stated expressly, that it is not the intention of a fine to drive a company completely out of business, but looking at some level of proportionality, which needs to be taken into account, because the size of the Star’s business is less than Crown. So it doesn’t necessarily mean that just because their conduct might be perceived to be more problematic that it will necessarily cause the fine to be greater, but it still is likely to be a very significant fine. And one fact that may be of interest in respect of fines which are imposed by both gambling, and anti money laundering regulation. The money doesn’t actually go to fund the relevant regulator. It will go back to assisting in protecting against the harms that may be caused by gambling. That goes back to the general revenue such that Austrack is now one of the most profitable regulators in Australia. NN: It is very common misconception by lay people in the UK that the Gambling Commission is escalating its fines and penalties, because it somehow benefits from them. There are many other reasons why it’s doing it, but that isn’t one of them. Joe Kelly, you had a question? Joe Kelly: This is a very interesting discussion. We’re interested in Ireland, particularly because we’re establishing a new regulator. In the draft legislation, there’ll be an entitlement to impose fines of up to €20 million or 10% of turnover. The point I will bring up at least in the abstract, what is the trend generally to those big fines whether you come from financial services or data protection. We have a number of regulators who are starting to oppose increasing our fines. I was struck by what you said about that. Because in Malta if your maximum fine is only €35,000. Is there a danger that the trend is leaving you behind? Or what’s your sense? CB: So there are two things here. One is a bit of a complexity about Malta. I’m gonna try to be brief about it. But there are a number of constitutional challenges against fines issued specifically by the FIU, especially because they are high. As you may know, there is European Court of Human Rights jurisprudence about the right to a fair hearing, etc, that even if a penalty in national legislation is described as being administrative in nature, if it was a certain criteria, it can still be deemed to be criminal, and therefore attracts the same safeguards. In Malta, we have a bit of an additional complexity. Our constitution says, not only do you need the full right of appeal when a penalty is in nature criminal, but it can only be imposed in the first instance by a court. So an administrative authority cannot impose penalties that, judging by the so called angle criteria, would be criminal in nature. Part of the reason why our law was designed the way it is back in 2018, is precisely to cater for this, because the jurisprudence had already started. It hadn’t become as prevalent as it is today, but it had already started. So that is a complexity. I don’t know if there are other European jurisdictions that may struggle with that. But perhaps it is a complexity purely for Malta. It may change whenever we get a full constitutional court judgment on what needs to happen, in terms of whether administrative authorities can impose or how it should be done, etc.
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