Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 (Cth)
This compilation was prepared on 5 April 2006
[Schedule 6 (items 7–9) amended section 2
Schedule 6 (item 10) repealed and substituted item 11 of Schedule 13
Schedule 6 (item 11) repealed and substituted heading to Part 7 of Schedule 16
Schedule 6 (item 12) repealed and substituted the heading to Part 8 of Schedule 16
Schedule 6 (item 13) repealed and substituted item 236 of Schedule 16 and added item 237 to Schedule 16
Schedule 6 (item 14) repealed item 5 of Schedule 19
Schedule 6 (items 7, 13 and 14) commenced on 17 June 1999
Schedule 6 (items 8, 9, 11 and 12) commenced immediately after 29 June 1998
Schedule 6 (item 10) commenced immediately before 1 July 1998]
[Schedule 1 (item 486) amended section 2
Schedule 1 (item 487) amended item 42 of Schedule 18
Schedule 1 (items 486 and 487) commenced on 5 December 1999]
[Schedule 11 (items 1 and 2) amended section 2
Schedule 11 (item 3) amended the heading to Part 3 of Schedule 17
Schedule 11 (items 1–3) commenced immediately after 29 June 1998]
[Schedule 2 (item 18) repealed and substituted item 99 of Schedule 2
Schedule 2 (item 18) commenced immediately after 1 July 1998]
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
This Act may be cited as the
Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 .
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) The following provisions of this Act commence on the commencement of the
Australian Prudential Regulation Authority Act 1998 :
(a) Schedule 1;
(b) Schedule 2, other than item 86;
(c) Schedule 3;
(d) Schedule 4;
(e) Schedule 7;
(f) Schedule 8;
(g) Schedule 9, subject to subsections (9) and (10);
(h) Parts 1 to 3 of Schedule 10;
(i) Schedule 11;
(j) Schedule 12, subject to subsection (12);
(k) Parts 1 to 6 of Schedule 13;
(l) Schedule 14;
(m) Schedule 15;
(n) Parts 1 to 6 of Schedule 16;
(o) Schedule 17;
(p) Schedule 18, other than the items amending the
Australian Prudential Regulation Authority Act 1998 .(3) Subject to subsection (4), item 86 of Schedule 2 commences on a day to be fixed by Proclamation.
(4) If item 86 of Schedule 2 does not commence under subsection (3) within the period of 24 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(6) Parts 1 to 4 of Schedule 5 commence:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if item 32 of Schedule 3 to theCompany Law Review Act 1998 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of item 32 of Schedule 3 to the
Company Law Review Act 1998 if that item does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(7) Part 5 of Schedule 5 commences:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if Schedule 5 to theCompany Law Review Act 1998 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of Schedule 5 to the
Company Law Review Act 1998 if that Schedule does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(8) Schedule 6 commences:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if theManaged Investments Act 1998 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of the
Managed Investments Act 1998 if that Act does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(9) If item 5 of Schedule 2 to the
Insurance Laws Amendment Act 1998 commences on or before the commencement of theAustralian Prudential Regulation Authority Act 1998 , items 76, 128 and 143 to 149 of Schedule 9 to this Act do not commence.(10) Parts 3 and 4 of Schedule 9 commence:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if that Act commences after the commencement of item 5 of Schedule 2 to theInsurance Laws Amendment Act 1998 ; or(b) immediately after the commencement of item 5 of Schedule 2 to the
Insurance Laws Amendment Act 1998 if theAustralian Prudential Regulation Authority Act 1998 commences on or before the commencement of that item.(11) The items in Part 4 of Schedule 10 listed in the table commence:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if the corresponding item of Schedule 1 to theInsurance Laws Amendment Act 1998 commences before the commencement of the corresponding item; or(b) immediately after the commencement of the corresponding item of Schedule 1 to the
Insurance Laws Amendment Act 1998 if that item does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .
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(12) If, under subsection (2), Schedule 12 commences on the same day as provisions of the
Insurance Laws Amendment Act 1998 commence, that Schedule commences on that day immediately after the commencement of those provisions.(13) Part 7 of Schedule 13 commences on the day on which this Act receives the Royal Assent.
(14) Part 7 of Schedule 16 commences:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if Part 1 of Schedule 2 to theSuperannuation Legislation Amendment Act 1999 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of Part 1 of Schedule 2 to the
Superannuation Legislation Amendment Act 1999 if that Part does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(15) Items 232 to 234 of Part 8 of Schedule 16 commence:
(a) immediately after the commencement of the
Australian Prudential Regulation Authority Act 1998 if item 42 of Schedule 1 to theSuperannuation Legislation Amendment (Choice of Superannuation Funds) Act 1999 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of item 42 of Schedule 1 to the
Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 1999 if that item does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(16) Items 235 and 236 of Part 8 of Schedule 16 commence:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if item 50 of Schedule 1 to theSuperannuation Legislation Amendment (Choice of Superannuation Funds) Act 2000 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of item 50 of Schedule 1 to the
Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2000 if that item does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(17) Part 3 of Schedule 17 has effect only if the
Australian Prudential Regulation Authority Act 1998 commences before the commencement of Schedule 3 to theSuperannuation Legislation Amendment Act 1999 and, if so, Part 3 commences immediately after the commencement of Schedule 3 to theSuperannuation Legislation Amendment Act 1999 .(18) The items in Schedule 18 amending the
Australian Prudential Regulation Authority Act 1998 commence:
(a) on the commencement of the
Australian Prudential Regulation Authority Act 1998 if thePublic Service Act 1999 commences before the commencement of theAustralian Prudential Regulation Authority Act 1998 ; or(b) immediately after the commencement of the
Public Service Act 1999 if that Act does not commence before the commencement of theAustralian Prudential Regulation Authority Act 1998 .(19) Schedule 19 commences on the day on which this Act receives the Royal Assent.
Subject to section 2, the Corporations Law and each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Omit “
establish an Australian Securities Commission ”, substitute “provide for the Australian Securities and Investments Commission ”.
Repeal the paragraph, substitute:
(a) to provide for the Australian Securities and Investments Commission which will administer such laws of:
(i) the Commonwealth; and
(ii) the Capital Territory; and
(iii) the States and the other Territories;
as confer functions and powers under those laws on the Commission; and
Repeal the subsection, substitute:
(2) In performing its functions and exercising its powers, the Commission must strive to:
(a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
(b) promote the confident and informed participation of investors and consumers in the financial system; and
(c) achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and
(d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and
(e) receive, process and store, efficiently and quickly, the information given to the Commission under the laws that confer functions and powers on it; and
(f) ensure that information is available as soon as practicable for access by the public; and
(g) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it.
After “
Securities ”, insert “and Investments ”.
After “This Act”, insert “(except section 12A)”.
Insert:
APRA means the Australian Prudential Regulation Authority.
Repeal the definition, substitute:
Commission means the Australian Securities and Investments Commission.
Add:
(2) From the commencement of this subsection, the Commission is to be known as the Australian Securities and Investments Commission.
Repeal the subsection.
Insert:
(1) The Commission has the functions and powers that are conferred on it by or under the following Acts:
(a) the
Insurance Act 1973 ;(b) the
Insurance (Agents and Brokers) Act 1984 ;(c) the
Insurance Contracts Act 1984 ;(d) the
Superannuation (Resolution of Complaints) Act 1993 ;(e) the
Life Insurance Act 1995 ;(f) the
Retirement Savings Accounts Act 1997 ;(g) the
Superannuation Industry (Supervision) Act 1993 .(2) The Commission has the function of monitoring and promoting market integrity and consumer protection in relation to the Australian financial system.
(3) The Commission has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by:
(a) promoting the adoption of approved industry standards and codes of practice; and
(b) promoting the protection of consumer interests; and
(c) promoting community awareness of payments system issues; and
(d) promoting sound customer‑banker relationships, including through:
(i) monitoring the operation of industry standards and codes of practice; and
(ii) monitoring compliance with such standards and codes.
(4) Subsections (2) and (3) confer functions and powers to the extent to which they are not in excess of the legislative power of the Commonwealth.
(5) The Commission may:
(a) advise the Minister about any changes to a law listed in subsection (1) that the Commission thinks are needed to help overcome any problems that the Commission has encountered in the course of performing its functions or exercising any of its powers under that law; and
(b) advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3).
(6) The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.
Note: The heading to section 11 is altered by adding at the end “
—national scheme laws ”.
Add:
(1) The Commission may accept a written undertaking given by a person in connection with a matter in relation to which the Commission has a function or power under this Act.
(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.
(3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
Add “or”.
Add:
; or (d) a person appointed by APRA under section 45 of the
Australian Prudential Regulation Authority Act 1998 .
Insert:
(2A) The Commission must not delegate a function or power to an APRA staff member within the meaning of the
Australian Prudential Regulation Authority Act 1998 , unless the Chief Executive Officer of APRA has agreed to the delegation in writing.
Add:
(8) If this section is being applied as a law of a State, it applies only in relation to functions and powers conferred by a national scheme law.
Repeal the section, substitute:
The Chairperson must give written notice to the Minister of all direct or indirect pecuniary interests that the Chairperson has or acquires in:
(a) a business carried on in Australia or a body corporate carrying on such a business; or
(b) a pooled superannuation trust (within the meaning of the
Superannuation Industry (Supervision) Act 1993 ) or a body corporate that is a trustee of such a trust; or(c) a superannuation fund (within the meaning of the
Superannuation Industry (Supervision) Act 1993 ) or an approved deposit fund (within the meaning of that Act) or a body corporate that is a trustee of such a fund; or(d) an RSA or an RSA provider (within the meaning of the
Retirement Savings Accounts Act 1997 ).
Omit all the words from and including “disclosure information” to and including “this jurisdiction”, substitute:
disclosure information:
(a) given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction; or
(b) that is protected information.
Insert:
(1A) Disclosing summaries of information or statistics derived from information is authorised use and disclosure of the information provided that information relating to any particular person cannot be found out from those summaries or statistics.
(1B) Disclosing:
(a) the names of entities that are RSA providers or RSA institutions for the purposes of the RSA Act; or
(b) the addresses at which business relating to entities referred to in paragraph (a) is conducted; or
(c) any other information that is reasonably necessary to enable members of the public to contact a person who performs functions in relation to an RSA (within the meaning of the RSA Act);
is authorised use and disclosure of the information.
(1C) Disclosing any or all of the following information about an RSA provider is authorised use and disclosure of the information:
(a) whether or not the RSA provider has lodged a return under section 44 of the RSA Act in respect of a particular year of income;
(b) whether or not a notice, or a particular kind of notice, has been given under section 92 of the RSA Act in relation to an RSA provider in respect of a particular year of income.
(1D) Disclosing:
(a) the names of:
(i) superannuation funds, approved deposit funds and pooled superannuation trusts that are superannuation entities for the purposes of the SIS Act; or
(ii) superannuation entities that are non‑complying superannuation funds or non‑complying approved deposit funds, or are not pooled superannuation trusts, as the case may be, in relation to a specified year of income for the purposes of Part IX of the Income Tax Assessment Act; or
(iii) superannuation funds and approved deposit funds that are eligible roll‑over funds for the purposes of Part 24 of the SIS Act; and
(b) the addresses at which business relating to funds or trusts referred to in paragraph (a) is conducted; and
(c) particulars of names of beneficiaries and amounts set out in a statement of unclaimed money given to the Commission under section 225 of the SIS Act; and
(d) any other information that is reasonably necessary to enable members of the public to contact a person who performs functions in relation to a superannuation entity (within the meaning of the SIS Act);
is authorised use and disclosure of the information.
(1E) Disclosing any or all of the following information about a fund, scheme or trust (of a type referred to in subsection (1D)) is authorised use and disclosure of the information:
(a) whether or not the trustee of the fund, scheme or trust has lodged a return under section 36 of the SIS Act in respect of a particular year of income;
(b) whether or not a decision has been made by APRA to give a notice, or a particular kind of notice, in relation to the fund, scheme or trust under section 40 of the SIS Act in relation to a particular year of income;
(c) whether or not a notice or a particular kind of notice has been given by APRA or the Commission under section 40 or 254 of the SIS Act in relation to the fund, scheme or trust, in respect of a particular year of income;
(d) in the case of a superannuation fund—whether or not the trustee of the fund has told APRA that the trustee is willing to accept a particular kind of contribution.
Insert:
(2A) Disclosing information to one of the following is authorised use and disclosure of the information:
(a) the Minister;
(b) the Secretary to the Department for the purpose of advising the Minister, or an officer authorised for that purpose;
(c) APRA.
Add “or”.
Insert:
(aa) will enable or assist:
(i) the Australian Bureau of Criminal Intelligence; or
(ii) the Australian Financial Institutions Commission; or
(iii) the Superannuation Complaints Tribunal;
to perform any of its functions or powers; or
(ab) will enable or assist an officer of the Commonwealth Attorney‑General’s Department who is in the office known as the Office of Law Enforcement Co‑ordination to perform any of his or her functions or powers; or
Insert:
or (d) will enable or assist a prescribed professional disciplinary body to perform 1 of its functions;
Omit “agency or government by a person”, insert “agency, government or disciplinary body by a person”.
After “subsection (4C)”, insert “(including a body corporate that is a foreign company)”.
Insert:
(ia) the business law of a foreign country; or
Insert:
(4EA) If the Commission discloses information to a disciplinary body under paragraph (4)(d), the body or a member of the body:
(a) must not disclose the information to any other person; and
(b) must not use the information for any purpose other than for deciding whether or not to take disciplinary or other action or for taking that action.
Penalty: Imprisonment for 2 years.
Insert:
(ia) the business law of a foreign country; or
Omit “(2)”, substitute “(1A), (1B), (1C), (ID), (IE), (2), (2A)”.
Add:
(8) If this section is being applied as a law of a State, it applies only in relation to the performance of the Commission’s functions and the exercise of the Commission’s powers under a national scheme law.
(9) In this section:
Income Tax Assessment Act means theIncome Tax Assessment Act 1936 or theIncome Tax Assessment Act 1997.
protected information means information disclosed or obtained, or a document given or produced, (whether before or after the commencement of this section) for the purposes of a function in section 12A and relating to the affairs of:
(a) a body regulated by the Commission; or
(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related (within the meaning of the Corporations Law) to a body regulated by the Commission; or
(c) a person who has been, is, or proposes to be, a customer of a body regulated by the Commission;
other than information that has already been lawfully made available to the public from other sources.
RSA Act means theRetirement Savings Accounts Act 1997.
SIS Act means theSuperannuation Industry (Supervision) Act 1993.
Omit “under a national scheme law of this or any other jurisdiction”.
Repeal the subsection, substitute:
(4) This section and subsection 18(3) of the
Commonwealth Authorities and Companies Act 1997 have effect subject to:
(a) a provision that a national scheme law of this or any other jurisdiction makes about money or property that vests in the Commission under such a law; and
(b) Part 22 of the
Superannuation Industry (Supervision) Act 1993 .
Add:
(2) The report must also set out information about the exercise during the year of the Commission’s powers under Part 15 of the
Retirement Savings Accounts Act 1997 and under Part 29 of theSuperannuation Industry (Supervision) Act 1993 .(3) In relation to the Commission’s functions under the
Insurance (Agents and Brokers) Act 1984 ,the report must include information about:
(a) the number of persons registered by the Commission for the time being as foreign insurance agents, life insurance brokers or general insurance brokers, respectively; and
(b) any suspensions or cancellations effected by the Commission under section 25 or 31H of that Act during the period to which the report relates; and
(c) any prosecutions for offences against that Act during that period; and
(d) any insolvency of an insurance intermediary that came to the Commission’s notice during that period; and
(e) any other matters (if any) as are prescribed.
After “
Securities ”, insert “and Investments ”.
After “
Securities ”, insert “and Investments ”.
Add:
(1) After the commencement of this section, a reference in:
(a) an Act of this jurisdiction; or
(b) an instrument under such an Act; or
(c) an award or other industrial determination, order or agreement; or
(d) any other order (whether executive, judicial or otherwise); or
(e) any contract; or
(f) any pleading in, or process issued in connection with, any legal or other proceeding; or
(g) any other instrument;
to the
Australian Securities Commission Act 1989 is taken to be a reference to theAustralian Securities and Investments Commission Act 1989 , except in relation to matters that occurred before the commencement of this section.
(2) After the commencement of this section, a reference in:
(a) an Act of the Commonwealth; or
(b) an instrument under such an Act;
to the ASC (or the Australian Securities Commission) is taken to be a reference to ASIC, except in relation to matters that occurred before the commencement of this section.
Note: Subsection (2) is enacted in case the effect of subsections 5(3) to (5) is to exclude the application of section 25B of the
Acts Interpretation Act 1901.
Insert:
ADI is short for authorised deposit‑taking institution.
Insert:
ADI statutory manager has the meaning given by subsection 13A(2).
Insert:
administrator of an ADI’s business means an administrator appointed under subsection 13A(1) to take control of an ADI’s business.
Insert:
APRA means the Australian Prudential Regulation Authority.
Insert:
APRA board member means a member of APRA’s board of management, including APRA’s Chair and Chief Executive Officer.
Insert:
APRA staff member has the same meaning as in theAustralian Prudential Regulation Authority Act 1998 .
Insert:
authorised deposit‑taking institution means a body corporate in relation to which an authority under subsection 9(3) is in force.
Insert:
authorised NOHC means a body corporate:
(a) in relation to which an authority under subsection 11AA(2) is in force; and
(b) that is a NOHC of an ADI or ADIs.
Repeal the definition, substitute:
bank means an ADI that is permitted under section 66 to assume or use:
(a) the word
bank ,banker orbanking ; or(b) any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).
Insert:
banking business means:
(a) a business that consists of banking within the meaning of paragraph 51(xiii) of the Constitution; or
(b) a business that is carried on by a corporation to which paragraph 51(xx) of the Constitution applies and that consists, to any extent, of:
(i) both taking money on deposit (otherwise than as part‑payment for identified goods or services) and making advances of money; or
(ii) other financial activities prescribed by the regulations for the purposes of this definition.
Omit “
bank ”, substitute “ADI ”.
Insert:
industry liquidity contract means a contract under which emergency liquidity support is to be provided by parties to the contract to any ADI that is a party to the contract if a specified event occurs.
Insert:
insolvent , in relation to a body corporate, means that the body corporate is not able to pay all its debts as and when they become due and payable.
Insert:
NOHC is short for non‑operating holding company.
Insert:
NOHC authority means an authority under subsection 11AA(2).
Insert:
non‑operating holding company means, in relation to a body corporate, a body corporate:
(a) of which the first body corporate is a subsidiary; and
(b) that does not carry on a business (other than a business consisting of the ownership or control of other bodies corporate); and
(c) that is incorporated in Australia.
Omit all the words from and including “, in relation to a bank” to and including “bank):”, substitute “, in relation to a body corporate that is an ADI or a NOHC, means matters relating to the conduct by the body corporate of any of its affairs:”.
Insert:
prudential regulation means a regulation under section 11A.
Insert:
prudential standard means a standard under section 11AF.
20
Section 5 (definition of Queensland Industry Development Corporation ) Repeal the definition.
Insert:
section 9 authority means an authority under subsection 9(3).
Repeal the definition.
Insert:
subsidiary has the meaning given by subsection (2).
Insert:
ultimate termination of control has the meaning given by subsection 13C(1).
Add:
(2) For the purposes of this Act, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same way as that question is determined for the purposes of the Corporations Law.
Omit “Subject to subsections (1A), (1B) and (1C), nothing in Part II”, substitute “Nothing in Part II”.
27
Subsections 6(1A), (1B) and (1C) (including the notes) Repeal the subsections (including the notes).
Add at the end:
Note: See also section 11, which provides for the making of determinations that provisions of this Act do not apply to certain persons carrying on banking business.
Repeal the subsection.
Omit “(not being a body corporate specified in the First Schedule)”.
Omit “the Treasurer”, substitute “APRA”.
Add:
Note: The body corporate may also need to consider the implications of the
Foreign Acquisitions and Takeovers Act 1975 and theFinancial Sector (Shareholdings) Act 1998 .
Repeal the subsection, substitute:
(3) If an application has been made, APRA may grant the body corporate an authority to carry on banking business in Australia. The authority must be in writing, and APRA must give the body corporate written notice of the granting of the authority.
Note 1: The fact that a body corporate is granted an authority to carry on banking business in Australia does not mean it is entitled to call itself a bank. To do this, the body corporate will need to have a consent under section 66.
Note 2: For APRA’s power to revoke an authority, see section 9A.
(3A) Without limiting the circumstances in which APRA may refuse an application by a body corporate for authority to carry on banking business in Australia, APRA may refuse such an application if the body corporate is a subsidiary of a NOHC that does not hold a NOHC authority.
Omit “The Governor‑General”, substitute “APRA”.
Add:
The conditions must relate to prudential matters.
Insert
(4A) Without limiting the conditions that APRA may impose under subsection (4) on an ADI’s authority, APRA may make the authority conditional on a body corporate of which the ADI is a subsidiary being an authorised NOHC.
Omit “relating to a prudential matter”.
Before “the regulations”, insert “the prudential standards or”.
Repeal the subsections, substitute:
(7) If APRA:
(a) grants an authority under subsection (3); or
(b) imposes, varies or revokes conditions under subsection (4);
APRA must cause notice of that action to be published in the
Gazette . APRA may also cause notice of that action to be published in any other way it considers appropriate.
(8) A failure to comply with subsection (7) does not affect the validity of the action concerned.
Insert:
(1) APRA must revoke a body corporate’s section 9 authority if:
(a) the body corporate, by notice in writing to APRA, requests the revocation of the authority; and
(b) APRA is satisfied that the revocation of the authority:
(i) would not be contrary to the national interest; and
(ii) would not be contrary to the interests of depositors of the body corporate.
(2) APRA may revoke a body corporate’s section 9 authority if APRA is satisfied that:
(a) the body corporate has failed to comply with:
(i) a requirement of this Act or the regulations; or
(ii) a direction under Division 1BA; or
(iii) a condition of its section 9 authority; or
(b) it would be contrary to the national interest for the authority to remain in force; or
(c) it would be contrary to the interests of depositors of the body corporate for the authority to remain in force; or
(d) the body corporate has failed to pay:
(i) an amount of levy or late penalty to which the
Financial Institutions Supervisory Levies Collection Act 1998 applies; or(ii) an amount of charge fixed under section 51 of the
Australian Prudential Regulation Authority Act 1998 ; or(e) the body corporate is insolvent and is unlikely to return to solvency within a reasonable period of time; or
(f) the body corporate has ceased to carry on banking business in Australia.
The procedures to be undergone before a revocation under this subsection are set out in subsection (3). Those procedures apply unless APRA determines under subsection (4) that they are not to apply.
(3) Subject to subsection (4), APRA must not, under subsection (2), revoke a body corporate’s section 9 authority unless:
(a) APRA has given the body corporate a notice in writing advising the body corporate:
(i) that APRA is considering revoking the authority for the reasons specified in the notice; and
(ii) that the body corporate may make submissions to APRA, in accordance with the notice, about the possible revocation; and
(iii) of the date by which any submissions must be made (being a date at least 90 days after the giving of the notice); and
(b) APRA has considered any submissions that were made by the body corporate by the specified date.
(4) APRA may determine that the procedures in subsection (3) do not apply if APRA is satisfied that following those procedures could result in a delay in revocation that would be:
(a) contrary to the national interest; or
(b) contrary to the interests of depositors with the body corporate.
(5) A revocation of a body corporate’s section 9 authority under subsection (1) or (2) must be in writing, and APRA must give the body corporate written notice of the revocation of the authority.
(6) If APRA revokes a body corporate’s section 9 authority under subsection (1) or (2), APRA must cause notice of the revocation to be published in the
Gazette . APRA may also cause notice of the revocation to be published in any other way it considers appropriate.(7) A failure to comply with subsection (5) (so far as it requires a body corporate to be given written notice of a revocation) or with subsection (6) does not affect the validity of a revocation.
(1) If APRA is satisfied that a body corporate that has been granted a section 9 authority:
(a) has ceased to exist; or
(b) has changed its name;
APRA must cause notice of that fact to be published in the
Gazette . APRA may also cause notice of that fact to be published in any other way it thinks appropriate.
(2) If the body corporate has ceased to exist, its section 9 authority is taken to be revoked on publication of the notice in the
Gazette .(3) If the body corporate has changed its name, its section 9 authority has effect after the publication of the notice in the
Gazette as if it had been granted to the body under its changed name.
APRA may, from time to time, publish a list of ADIs:
(a) in the
Gazette ; or(b) in such other manner as APRA determines.
Omit “the Treasurer”, substitute “APRA”.
Note: The heading to section 10 is altered by omitting “
Treasurer ” and substituting “APRA ”.
Omit “A bank specified in the First Schedule”, substitute “ An ADI”.
Omit “the bank” (wherever occurring), substitute “the ADI”.
Omit “the Treasurer”, substitute “APRA”.
Repeal the subsection, substitute:
(1) APRA may, by order published in the
Gazette , determine that all or specified provisions of this Act do not apply to a person during the period while the order continues in force. The determination has effect accordingly.Note: The heading to section 11 is replaced by the heading “
APRA may determine that provisions of this Act do not apply ”.
Add:
(4) APRA may, by order published in the
Gazette , vary or revoke an order under this section.
Insert:
(1) A body corporate may apply in writing to APRA for an authority under this section. The authority operates as an authority in relation to the body corporate and any ADIs that are subsidiaries of the body corporate from time to time.
Note 1: The body corporate may want the authority:
(a) because APRA refuses or may refuse to grant a subsidiary of the body corporate a section 9 authority unless the body corporate holds a NOHC authority (see subsection 9(3A)); or
(b) for a purpose connected with the
Financial Sector (Shareholdings) Act 1998 .Note 2: The body corporate may also need to consider the implications of the
Foreign Acquisitions and Takeovers Act 1975 and theFinancial Sector (Shareholdings) Act 1998 .(2) APRA may grant the authority if it considers it is appropriate to do so.
Note: For APRA’s power to revoke the authority, see section 11AB.
(3) APRA may, at any time, by notice in writing given to the body corporate:
(a) impose conditions, or additional conditions, on the authority; and
(b) vary or revoke conditions imposed on the authority.
The conditions must relate to prudential matters.
(4) A condition may be expressed to have effect despite anything in the prudential standards or the regulations.
(5) The body corporate must comply with any conditions to which the authority is subject.
(6) If APRA:
(a) grants an authority under subsection (2); or
(b) imposes, varies or revokes conditions under subsection (3);
APRA must cause notice of that action to be published in the
Gazette . APRA may also cause notice of that action to be published in any other way that it considers appropriate.
(7) A failure to comply with subsection (6) does not affect the validity of the action concerned.
(1) APRA must revoke a NOHC authority granted to a body corporate if:
(a) the body corporate, by notice in writing to APRA, requests the revocation of the authority; and
(b) APRA is satisfied that revocation of the authority:
(i) would not be contrary to the national interest; and
(ii) would not be contrary to the interests of depositors of any ADI that is a subsidiary of the body corporate.
(2) APRA may revoke a NOHC authority granted to a body corporate if APRA is satisfied that:
(a) the body corporate has failed to comply with:
(i) a requirement of this Act or the regulations; or
(ii) a direction under Division 1BA; or
(iii) a condition of its NOHC authority; or
(b) the body corporate has ceased to be a NOHC of any ADI or ADIs; or
(c) it would be contrary to the national interest for the authority to remain in force; or
(d) it would be contrary to the interests of depositors of any ADI that is a subsidiary of the body corporate for the authority to remain in force; or
(e) the body corporate has failed to pay:
(i) an amount of levy or late penalty to which the
Financial Institutions Supervisory Levies Collection Act 1998 applies; or(ii) an amount of charge fixed under section 51 of the
Australian Prudential Regulation Authority Act 1998 .The procedures to be undergone before a revocation under this subsection are set out in subsection (3). Those procedures apply unless APRA determines under subsection (4) that they are not to apply.
(3) Subject to subsection (4), APRA must not, under subsection (2), revoke a body corporate’s NOHC authority unless:
(a) APRA has given the body corporate a notice in writing advising the body corporate:
(i) that APRA is considering revoking the authority for the reasons specified in the notice; and
(ii) that the body corporate may make submissions to APRA, in accordance with the notice, about the possible revocation; and
(iii) of the date by which any submissions must be made (being a date at least 90 days after the giving of the notice); and
(b) APRA has considered any submissions that were made by the body corporate by the specified date.
(4) APRA may determine that the procedures in subsection (3) do not apply if APRA is satisfied that following those procedures could result in a delay in revocation that would be:
(a) contrary to the national interest; or
(b) contrary to the interests of depositors of any ADI that is a subsidiary of the body corporate.
(5) A revocation of a body corporate’s NOHC authority under subsection (1) or (2) must be in writing, and APRA must give the body corporate written notice of the revocation of the authority.
(6) If APRA revokes a body corporate’s NOHC authority under subsection (1) or (2), APRA must cause notice of the revocation to be published in the
Gazette . APRA may also cause notice of the revocation to be published in any other way it considers appropriate.(7) A failure to comply with subsection (5) (so far as it requires a body corporate to be given written notice of a revocation) or with subsection (6) does not affect the validity of a revocation.
(1) If APRA is satisfied that a body corporate that has been granted a NOHC authority:
(a) has ceased to exist; or
(b) has changed its name;
APRA must cause notice of that fact to be published in the
Gazette . APRA may also cause notice of that fact to be published in any other way it thinks appropriate.
(2) If the body corporate has ceased to exist, any NOHC authority granted to the body corporate that is still in force is taken to be revoked on publication of the notice in the
Gazette .(3) If the body corporate has changed its name, any NOHC authority granted to the body corporate that is still in force has effect after the publication of the notice in the
Gazette as if it had been granted to the body under its changed name.
APRA may, from time to time, publish a list of authorised NOHCs:
(a) in the
Gazette ; or(b) in such other manner as APRA determines.
Repeal the heading, substitute:
Insert in Division 1A of Part II:
(1) APRA may, in writing, determine standards in relation to prudential matters to be complied with by ADIs and authorised NOHCs.
Note: A failure to comply with a standard is not an offence, but it may lead to a direction being given under section 11CA.
(2) A standard:
(a) comes into force:
(i) unless subparagraph (ii) applies—on the day on which the determination of the standard is made; or
(ii) if that determination specifies a later day as the day on which the standard comes into force—on the day so specified; and
(b) continues in force until it is revoked.
(3) APRA may, in writing, vary or revoke a standard.
(4) If APRA determines or varies a standard it must, as soon as practicable, cause a notice advising of the determination of the standard, or of the variation of the standard, and summarising the purpose and effect of the standard or variation, to be published:
(a) in the
Gazette ; and(b) in a daily newspaper or daily newspapers circulating generally in each State or Territory.
(5) If APRA revokes a standard it must, as soon as practicable, cause a notice of the revocation to be published:
(a) in the
Gazette ; and(b) in a daily newspaper or daily newspapers circulating generally in each State or Territory.
(6) APRA must take reasonable steps to ensure that copies of the current text of the standards are available for inspection and purchase.
(7) A failure to comply with subsection (4), (5) or (6) does not affect the validity of the action concerned.
(8) In this section:
Territory means a territory to which this Act extends.
Omit “banks”, substitute “ADIs and authorised NOHCs”.
Note: The heading to section 11A is altered by inserting “
also ” after “may ”.
Omit “the Reserve Bank”, substitute “APRA”.
Note: The heading to section 11B is altered by omitting “
Reserve Bank ” and substituting “APRA ”.
Omit “banks” (wherever occurring), substitute “ADIs and authorised NOHCs”.
Insert:
(1) APRA may give a body corporate that is an ADI or an authorised NOHC a direction of a kind specified in subsection (2) if APRA considers that:
(a) the body corporate has contravened a prudential regulation or a prudential standard; or
(b) if the body corporate is an ADI—the direction is necessary in the interests of depositors of the ADI; or
(c) if the body corporate is an authorised NOHC—the direction is necessary in the interests of depositors of any ADI that is a subsidiary of the body corporate.
The direction is to be by notice in writing given to the body corporate.
(2) The kinds of direction the body corporate may be given are as follows:
(a) a direction to comply with the whole or a part of a prudential regulation or a prudential standard;
(b) a direction to order an audit of the affairs of the body corporate, at the expense of the body corporate, by an auditor chosen by APRA;
(c) a direction to do all or any of the following:
(i) remove a director, secretary, executive officer or employee of the body corporate from office;
(ii) ensure a director, secretary, executive officer or employee of the body corporate does not take part in the management or conduct of the business of the body corporate except as permitted by APRA;
(iii) appoint a person or persons as a director, secretary, executive officer or employee of the body corporate for such term as APRA directs;
(d) a direction to remove any auditor of the body corporate from office and appoint another auditor to hold office for such term as APRA directs;
(e) a direction not to give any financial accommodation to any person;
(f) a direction not to accept the deposit of any amount;
(g) a direction not to borrow any amount;
(h) a direction not to accept any payment on account of share capital, except payments in respect of calls that fell due before the direction was given;
(i) a direction not to repay any amount paid on shares;
(j) a direction not to pay a dividend on any shares;
(k) a direction not to repay any money on deposit or advance;
(l) a direction not to pay or transfer any amount to any person, or create an obligation (contingent or otherwise) to do so;
(m) a direction not to undertake any financial obligation (contingent or otherwise) on behalf of any other person;
(n) any other direction as to the way in which the affairs of the body corporate are to be conducted or not conducted.
A direction under paragraph (l) not to pay any amount does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution.
(3) The direction may deal with the time by which, or period during which, it is to be complied with.
(4) The body corporate has power to comply with the direction despite anything in its constitution or any contract or arrangement to which it is a party.
(5) The direction has effect until APRA revokes it by notice in writing to the body corporate. APRA may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.
(6) In this section, the expressions
director ,secretary ,executive officer andemployee have the same meanings as they have in the Corporations Law.Note: For further information about directions, see Subdivision C.
APRA may certify an industry liquidity contract if all of the parties to the contract make a written request to APRA that the contract be certified and APRA considers it appropriate to certify the contract. The certification must be by notice in writing to the parties to the contract.
(1) APRA may direct any ADI that is a party to an industry liquidity contract that is certified under section 11CB to carry out, or cease to carry out, specified acts if APRA considers:
(a) that carrying out, or ceasing to carry out, those acts, is necessary in order for the terms of the contract to be fulfilled; and
(b) that the direction is in the interests of the depositors of one or more of the ADIs that are parties to the contract.
The direction must be by notice in writing to the ADI.
(2) The direction may deal with the time by which, or period during which, it is to be complied with.
(3) The ADI has power to comply with the direction despite anything in its constitution or any contract or arrangement to which it is a party.
(4) The direction has effect until:
(a) APRA revokes the direction by notice in writing to the ADI (see subsection (5)); or
(b) APRA revokes the certification of the industry liquidity contract by notice in writing to the ADIs that are parties to it (see subsection (6)).
(5) APRA may revoke the direction if, at the time of the revocation, it considers that the direction is no longer necessary or appropriate.
(6) APRA may revoke the certification of the industry liquidity contract if it considers that it is appropriate to do so for any reason.
(1) Subject to subsections (2) and (3), the fact that an ADI or an authorised NOHC is subject to a direction by APRA under Subdivision A or B is not a ground for any other party to a contract to which the ADI or NOHC is a party to deny any obligations under that contract, accelerate any debt under that contract or close out any transaction relating to that contract.
(2) If an ADI or an authorised NOHC is prevented from fulfilling its obligations under a contract because of a direction under Subdivision A, other than a direction under paragraph 11CA(2)(k), the other party or parties to the contract are, subject to any orders made under subsection (3), relieved from obligations owed to the ADI or authorised NOHC under the contract.
(3) A party to a contract to which subsection (2) applies may apply to the Federal Court of Australia for an order relating to the effect on the contract of a direction under Subdivision A. The order may deal with matters including (but not limited to):
(a) requiring a party to the contract to fulfil an obligation under the contract despite subsection (2);
(b) obliging a party to the contract to take some other action (for example, paying money or transferring property) in view of obligations that were fulfilled under the contract before the direction was made.
The order must not require a person to take action that would contravene the direction, or any other direction under Subdivision A.
Power to publish notice of directions in Gazette
(1) APRA may publish in the
Gazette notice of any direction made under Subdivision A or B. The notice must include the name of the ADI or authorised NOHC given the direction and a summary of the direction.
Requirement to publish notice of revocation of certain directions in Gazette
(2) If APRA publishes notice of a direction made under Subdivision A or B and then later revokes the direction, APRA must publish in the
Gazette notice of that revocation as soon as practicable after the revocation. Failure to publish notice of the revocation does not affect the validity of the revocation.
Requirement to provide information about direction to Treasurer and Reserve Bank
(3) If the Treasurer or the Reserve Bank requests APRA to provide information about:
(a) any directions under Subdivision A or B in respect of a particular ADI or authorised NOHC; or
(b) any directions made during a specified period under Subdivision A or B in respect of any ADIs or authorised NOHCs;
APRA must comply with the request.
Power to inform Treasurer and Reserve Bank of direction
(4) APRA may provide any information that it considers appropriate to the Treasurer or the Reserve Bank about any directions, or revocations of directions, made under Subdivision A or B, in respect of any ADI or authorised NOHC, at any time.
Requirement to inform Treasurer and Reserve Bank of revocation of direction if informed of making of direction
(5) If APRA provides the Treasurer or the Reserve Bank with information about a direction and then later revokes the direction, APRA must notify that person of the revocation of the direction as soon as practicable after the revocation. Failure to notify the person does not affect the validity of the revocation.
Information relating to directions and revocations of directions is subject to the secrecy requirements in Part 6 of the
Australian Prudential Regulation Authority Act 1998 , unless the information has been published in theGazette under section 11CE.
(1) An ADI or an authorised NOHC must comply with any direction given to it under Subdivision A or Subdivision B.
(2) An officer of an ADI or of an authorised NOHC must take reasonable steps to ensure that the ADI or NOHC complies with any direction given to it under Subdivision A or Subdivision B if the officer’s duties include ensuring that the ADI or NOHC complies with the direction, or with a class of directions that includes the direction.
(3) For the purposes of this section:
officer , in relation to an ADI or an authorised NOHC includes:
(a) a director, secretary, executive officer or employee of the ADI or NOHC; and
(b) a receiver and manager, appointed under a power contained in an instrument, of property of the ADI or NOHC; and
(c) an official manager, or deputy official manager, of the ADI or NOHC; and
(d) a liquidator of the ADI or NOHC appointed in a voluntary winding‑up of the ADI; and
(e) a trustee or other person administering a compromise or arrangement made between the ADI or NOHC and other persons.
Expressions used in the definition of
officer have the same meanings as they have in the Corporations Law.
Repeal the heading, substitute:
Repeal the definition, substitute:
foreign ADI does not include the Bank of China.
Omit “bank” (wherever occurring), substitute “ADI”.
Note: The heading to section 11E is altered by omitting “
banks ” and substituting “ADIs ”.
Omit “the Governor of the Reserve Bank”, substitute “APRA”.
Omit “bank” (wherever occurring), substitute “ADI”.
Note: The heading to section 11F is altered by omitting “
banks ” and substituting “ADIs ”.
Omit “bank’s”, substitute “ADI’s”.
Insert:
Omit “the Reserve Bank”, substitute “APRA”.
Note: The heading to section 12 is altered by omitting “
Reserve Bank ” and substituting “APRA ”.
Omit “banks”, substitute “ADIs”.
Repeal the sections, substitute:
APRA’s power to obtain information
(1) APRA may, by notice in writing to an ADI, require the ADI to supply it, within the time specified in the notice, with such information relating to the ADI’s financial stability as is specified in the notice.
(2) The information supplied in compliance with a requirement under subsection (1) must, if required by the notice, be verified by a statutory declaration made by an officer of the ADI concerned who is authorised by the ADI to make the declaration.
Information to be supplied if ADI unable, or likely to be unable, to meet obligations
(3) An ADI must immediately inform APRA if the ADI considers that it is likely to become unable to meet its obligations, or is about to suspend payment.
APRA’s power to appoint an investigator if information not provided
(4) APRA may appoint a person to investigate the affairs of an ADI if the ADI fails to comply with a requirement to provide information under this section.
Interpretation
(5) In this section:
officer , in relation to an ADI, has the same meaning as in section 11CG.
Appointment of investigator or administrator or control by APRA
(1) APRA may appoint a person to investigate the affairs of an ADI, take control of the ADI’s business or appoint an administrator to take control of the ADI’s business if:
(a) the ADI informs APRA that the ADI considers that it is likely to become unable to meet its obligations or that it is about to suspend payment; or
(b) APRA considers that the ADI is likely to become unable to meet its obligations or is about to suspend payment; or
(c) the ADI becomes unable to meet its obligations or suspends payment.
Note: For information about another circumstance in which APRA may take control of the business of an ADI, see section 65.
(2) Throughout this Subdivision and Subdivision B, the term
ADI statutory manager is used. It refers to the entity in control of an ADI’s business under this Subdivision. That entity will be either APRA or an administrator of an ADI’s business appointed by APRA.
Australian assets of ADI to be available to meet deposit liabilities
(3) If an ADI becomes unable to meet its obligations or suspends payment, the assets of the ADI in Australia are to be available to meet that ADI’s deposit liabilities in Australia in priority to all other liabilities of the ADI.
(4) An ADI must hold assets (excluding goodwill) in Australia of a value that is equal to or greater than the total amount of its deposit liabilities in Australia unless it is authorised by APRA to hold assets of a lesser value.
(1) If APRA has appointed a person to investigate the affairs of an ADI under section 13 or 13A, the ADI must give the person access to its books, accounts and documents and must give the person such information and facilities as the person requires to conduct the investigation.
(2) Part 6 of the
Australian Prudential Regulation Authority Act 1998 prohibits certain disclosures of information received by investigators under this Act.
Conditions necessary for termination of control
(1) If APRA assumes control of an ADI’s business or appoints an administrator of an ADI’s business, APRA must ensure that either it or an administrator of the ADI’s business has control of the ADI’s business until:
(a) the following conditions are satisfied:
(i) the ADI’s deposit liabilities in Australia have been repaid or APRA is satisfied that suitable provision has been made for their repayment; and
(ii) APRA considers that it is no longer necessary for it or an administrator to remain in control of the ADI’s business; or
(b) APRA considers that the ADI is insolvent and is unlikely to be returned to solvency within a reasonable time, and APRA has applied for the ADI to be wound up under the Corporations Law (see section 14F).
A termination of control that is permitted under this section is called an
ultimate termination of control .Note: This provision does not prevent a change, or changes, between control of an ADI’s business by APRA and an administrator or between administrators.
Events to precede termination
(2) Before making an ultimate termination of control by an ADI statutory manager of an ADI’s business, APRA must:
(a) ensure that directors of the ADI have been appointed or elected under the ADI’s constitution at a meeting called by the ADI statutory manager in accordance with the ADI’s constitution; or
(b) appoint directors of the ADI by instrument in writing; or
(c) ensure that a liquidator for the ADI has been appointed.
Power to terminate control
(3) If the requirements in subsections (1) and (2) are satisfied, APRA may by instrument in writing make an ultimate termination of control of an ADI’s business by an ADI statutory manager.
(4) If the ADI statutory manager at the time of the termination is an administrator, the instrument of termination also operates as a termination of the appointment of the administrator. A copy of the instrument must be given to the administrator. However, mere failure to give the copy to the administrator does not affect the termination of the appointment.
Period of director’s appointment
(5) If a director is elected or appointed under subsection (2), the director takes office on the termination of the ADI statutory manager’s control of the ADI’s business. If the director was appointed by APRA, the director holds office until the ADI’s next annual general meeting, subject to any terms and conditions imposed by APRA on the director’s appointment. If the director was appointed or elected under the ADI’s constitution, the constitution governs the appointment.
Note: For further information about what happens when an ADI statutory manager is in control of an ADI’s business, see Subdivision B.
Add:
ADI statutory manager’s powers and functions include powers and functions of board
(1) An ADI statutory manager has the powers and functions of the members of the board of directors of the ADI (collectively and individually), including the board’s powers of delegation.
Note: When an ADI statutory manager takes control of the business of an ADI, the directors of the ADI cease to hold office (see section 15).
ADI statutory manager’s power to obtain information
(2) An ADI statutory manager may, for the purposes of this Division, require a person who has, at any time, been an officer of the ADI to give the ADI statutory manager any information relating to the business of the ADI that the ADI statutory manager requires. The person must comply with the requirement.
Penalty: Imprisonment for 12 months.
(3) An individual is not excused from complying with a requirement under subsection (2) to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(4) If:
(a) before giving information in compliance with a requirement under subsection (2), an individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b) giving the information might in fact tend to incriminate the individual or make the individual so liable;
the information given in compliance with the requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information.
ADI statutory manager’s power to sell whole or part of ADI’s business
(5) An ADI statutory manager may sell or otherwise dispose of the whole or any part of the ADI’s business. The sale or disposal may occur on any terms and conditions that the ADI statutory manager considers appropriate.
Interpretation
(6) In this section:
officer , in relation to an ADI, has the same meaning as in section 11CG.
Types of recommendation
(1) An administrator of an ADI’s business may make any of the following recommendations to APRA, by instrument in writing given to APRA:
(a) that APRA make a particular direction under Division 1BA in respect of the ADI;
(b) if the administrator considers that the ADI is insolvent and could not be restored to solvency within a reasonable period:
(i) that APRA apply under section 14F to the Federal Court of Australia for an order that the ADI be wound up; or
(ii) that APRA revoke the ADI’s section 9 authority.
Effect of recommendation
(2) If an administrator of an ADI’s business makes a recommendation under this section, APRA must consider the recommendation but is not required to act on it.
Liability for loss due to fraud etc.
(1) If an ADI incurs any loss because of any fraud, dishonesty, negligence or wilful failure to comply with this Act by the ADI statutory manager, the ADI statutory manager is liable for the loss.
Other losses
(2) An ADI statutory manager is not liable for a loss that is not a loss incurred because of fraud, dishonesty, negligence or wilful failure to comply with this Act. If the ADI statutory manager is an administrator of the ADI’s business, the administrator must provide details of the loss in a written report to APRA. However, failure to do so does not make the administrator liable for the loss.
Subsections (1) and (2) apply instead of general indemnity provisions
(3) The question whether an ADI statutory manager is liable for a loss is to be determined in accordance with subsections (1) and (2), rather than in accordance with section 70A of this Act or section 58 of the
Australian Prudential Regulation Authority Act 1998 .
ADI statutory manager not liable under section 588G of the Corporations Law
(4) An ADI statutory manager is not to be taken to be a director for the purposes of section 588G of the Corporations Law of a State or internal Territory.
Signpost to secrecy obligations
(5) Part 6 of the
Australian Prudential Regulation Authority Act 1998 prohibits certain disclosures of information received by ADI statutory managers under this Act.
Duty to report to APRA on request
(1) A person who is an administrator of an ADI’s business must give to APRA a written report showing how the control of the ADI’s business is being carried out if APRA requests that such a report be provided to it. The report must be given to APRA within a reasonable time after the request.
Duty to report to APRA on termination of appointment
(2) A person who was an administrator of an ADI’s business must give to APRA a written report showing how the control of the ADI’s business was carried out over the period of the administrator’s appointment if the administrator’s appointment has been terminated. The report must be given to APRA within a reasonable time of the termination.
Duty to follow directions by APRA
(3) APRA may give an administrator of an ADI’s business a direction relating to the control of the ADI’s business, and may alter such a direction. If a direction (including an altered direction) is given to an administrator by APRA, the administrator must:
(a) act in accordance with the direction; or
(b) immediately provide to APRA information relating to the control of the ADI’s business and request APRA to alter the direction.
(4) If an administrator of an ADI’s business requests APRA to alter a direction and APRA considers the request then confirms the direction, the administrator must act in accordance with the direction.
(1) If an administrator of an ADI’s business contravenes a requirement of this Division, APRA may terminate the administrator’s appointment.
(2) The terms and conditions of the administrator’s appointment may provide for termination in circumstances in addition to those mentioned in subsection (1).
(3) This section has effect subject to section 13C.
Power to apply for ADI to be wound up
(1) APRA may apply to the Federal Court of Australia for an order that an ADI be wound up if:
(a) an ADI statutory manager is in control of the ADI’s business; and
(b) APRA considers that the ADI is insolvent and could not be restored to solvency within a reasonable period.
(2) The winding up of the ADI is to be conducted in accordance with the Corporations Law of a State or internal Territory under which the ADI is incorporated or is taken to be incorporated.
(1) The directors of an ADI cease to hold office when an ADI statutory manager takes control of the ADI’s business.
Note: For the definition of
director , see subsection (4).(2) A director of an ADI must not be appointed or elected while an ADI statutory manager is in control of the ADI’s business unless the appointment is made under subsection 13C(2).
(3) If a person who ceased to hold office under subsection (1), or a purported director of the ADI appointed or elected in contravention of subsection (2), purports to act in relation to the ADI’s business while an ADI statutory manager has control of the ADI’s business, those acts are invalid and of no effect.
(4) For the purposes of this section,
director has the same meaning as it has in the Corporations Law.
(1) The appointment of an external administrator of an ADI is terminated when an ADI statutory manager takes control of the ADI’s business.
Note: For the definition of
external administrator , see subsection (5).(2) An external administrator of an ADI must not be appointed while an ADI statutory manager is in control of the ADI’s business unless APRA approves the appointment.
(3) If a person who ceased to be the external administrator of an ADI under subsection (1), or a purported external administrator of the ADI appointed in contravention of subsection (2), purports to act in relation to the ADI’s business while an ADI statutory manager has control of the ADI’s business, those acts are invalid and of no effect.
(4) APRA must inform the external administrator of an ADI that an ADI statutory manager will take control of the ADI’s business as soon as possible after the decision that an ADI statutory manager will take control of the ADI’s business is made. However, failure to inform the external administrator does not affect the operation of this section.
(5) For the purposes of this section,
external administrator means any of the following:
(a) a liquidator or provisional liquidator;
(b) a receiver, manager, managing controller, receiver and manager or other controller (other than an ADI statutory manager);
(c) a voluntary administrator or administrator of a deed of a company arrangement or a scheme manager.
Expressions used in this subsection have the same meanings as they have in the Corporations Law.
(1) A person cannot begin or continue a proceeding in a court against an ADI while an ADI statutory manager is in control of the ADI’s business unless:
(a) the court grants leave on the ground that the person would be caused hardship if leave were not granted; or
(b) APRA consents to the proceedings beginning or continuing.
(2) A person intending to apply for leave of the court under paragraph (1)(a) must give APRA at least 10 days notice of the intention to apply. APRA may apply to the court to be joined as a party to the proceedings for leave.
(3) In this section, a reference to a proceeding against an ADI includes a reference to a cross‑claim or third party claim against an ADI.
The fact that an ADI statutory manager is in control of an ADI’s business is not a ground for any other party to a contract to which the ADI is a party to deny any obligations under that contract, accelerate any debt under that contract or close out any transaction relating to that contract.
(1) APRA’s costs (including costs in the nature of remuneration and expenses) of being in control of an ADI’s business, or of having an administrator in control of an ADI’s business, are payable from the ADI’s funds and are a debt due to APRA.
(2) Despite anything contained in any law relating to the winding‑up of companies, but subject to subsection 13A(3), debts due to APRA by an ADI under subsection (1)have priority in a winding‑up of the ADI over all other unsecured debts.
Reports to the Treasurer
(1) If the Treasurer requests APRA to give him or her a written report concerning the activities of ADI statutory managers in respect of specified ADIs or in respect of a specified period, APRA must give the Treasurer such a written report within a reasonable time after the Treasurer requests it.
(2) If an ADI statutory manager takes control of an ADI’s business during a financial year, or if there is an ultimate termination of control during a financial year, APRA must give the Treasurer a written report within a reasonable time after the end of the financial year concerning activities of all ADI statutory managers and each ultimate termination of control that occurred during that financial year.
Requirement to publish notices in Gazette
(3) If APRA:
(a) takes control of an ADI’s business; or
(b) appoints an administrator of an ADI’s business; or
(c) makes an ultimate termination of control in respect of an ADI’s business;
APRA must publish notice of that fact in the
Gazette . However, mere failure to publish such a notice does not affect the validity of the act.
Insert:
Duty to give information when required
(1) APRA may, by notice in writing, require a person who is, or who has been, an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or authorised NOHC;
to provide information about the ADI, authorised NOHC or subsidiary to APRA if APRA considers that the provision of the information will assist APRA in performing its functions under this Act. The person must comply with the requirement.
Penalty: Imprisonment for 6 months.
Additional duty to give information about ADIs
(2) A person who is, or who has been, an auditor of an ADI must inform APRA if the person has reasonable grounds for believing that:
(a) the ADI is insolvent, or there is a significant risk that the ADI will become insolvent; or
(b) the ADI has failed to comply with:
(i) a prudential standard; or
(ii) a requirement of this Act or the regulations; or
(iii) a direction under Division 1BA of Part II; or
(iv) a condition of its banking authority; or
(c) an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI.
Penalty: Imprisonment for 6 months.
Additional duty to give information about authorised NOHCs
(3) A person who is, or who has been, an auditor of an authorised NOHC must inform APRA if the person has reasonable grounds for believing that:
(a) the NOHC is insolvent, or there is a significant risk that the NOHC will become insolvent; or
(b) the NOHC has failed to comply with:
(i) a prudential standard; or
(ii) a requirement of this Act or the regulations; or
(iii) a direction under Division 1BA of Part II; or
(iv) a condition of its NOHC authority; or
(c) an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC.
Penalty: Imprisonment for 6 months.
Additional duty to give information about subsidiaries of ADIs or authorised NOHCs
(4) A person who is, or who has been, an auditor of a subsidiary of an ADI or an authorised NOHC (other than a subsidiary that itself is an ADI or an authorised NOHC) must inform APRA if the person has reasonable grounds for believing that:
(a) the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or
(b) the subsidiary has failed to comply with a requirement of this Act or the regulations; or
(c) an existing or proposed state of affairs may materially prejudice the interests of depositors of:
(i) if the subsidiary is a subsidiary of an ADI—the ADI; or
(ii) if the subsidiary is a subsidiary of an authorised NOHC—any ADI that is a subsidiary of the NOHC.
Penalty: Imprisonment for 6 months.
Self‑incrimination
(5) An individual is not excused from complying with a requirement under this section to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(6) If:
(a) before giving information in compliance with a requirement under this section, an individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b) giving the information might in fact tend to incriminate the individual or make the individual so liable;
the information given in compliance with the requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information.
A person who is, or who has been, an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or authorised NOHC;
may provide information about the ADI, authorised NOHC or subsidiary to APRA if the person considers that the provision of that information to APRA will assist APRA in performing its functions under this Act.
Omit “a bank’s”, substitute “an ADI’s”.
Note: The heading to section 19 is altered by omitting “
banks ” and substituting “ADIs ”.
Omit “the bank’s”, substitute “the ADI’s”.
Omit “a bank”, substitute “an ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “banks”, substitute “ADIs”.
Omit “bank”, substitute “ADI”.
Omit “A bank”, substitute “An ADI”.
Note: The heading to section 22 is altered by omitting “
Banks ”, and substituting “ADIs ”.
Omit “the bank”, substitute “the ADI”.
Omit “the bank’s” (wherever occurring), substitute “the ADI’s”.
Omit “a bank”, substitute “an ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “A bank”, substitute “An ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “that bank’s”, substitute “the ADI’s”.
Omit “bank”, substitute “ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “the bank” (wherever occurring), substitute “the ADI”.
Repeal the Division.
87
Section 32 (definitions of excess receipts of foreign currency and surplus foreign currency ) Omit “a bank”, substitute “an ADI”.
88
Section 32 (definitions of excess receipts of foreign currency and surplus foreign currency ) Omit “that bank’s”, substitute “that ADI’s”.
Omit “bank”, substitute “ADI”.
Omit “bank’s”, substitute “ADI’s”.
Omit “bank”, substitute “ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “that bank”, substitute “that ADI”.
Omit “A bank”, substitute “An ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “A bank”, substitute “An ADI”.
Omit “bank’s” (wherever occurring), substitute “ADI’s”.
Omit “bank’s”, substitute “ADI’s”.
Omit “that bank”, substitute “that ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “the bank”, substitute “the ADI”.
Omit “that bank”, substitute “the ADI”.
Omit “a bank”, substitute “an ADI”.
Omit “that bank”, substitute “the ADI”.
Omit “banks”, substitute “ADIs”.
Omit “a bank”, substitute “an ADI”.
Omit “a bank”, substitute “an ADI”.
Repeal the heading, substitute:
Omit “the Third Schedule”, substitute “Schedule 1”.
After “Commonwealth,”, insert “of the Australian Capital Territory,”.
(2) The regulations may make provision dealing with how the transfer of control of an institution’s business as mentioned in paragraph (1)(c) is to occur, or otherwise relating to such a transfer.
(3) Section 15 of the old Act continues to have effect (despite its repeal) after the APRA commencement in relation to things done or omitted to be done before that commencement.
9
Treatment of instruments under Division 3 of Part II An instrument in force immediately before the APRA commencement under a provision of Division 3 of Part II of the old Act, being a provision that is amended by this Act, continues to have effect after that commencement (as far as practicable and subject to later instruments) as if it covered ADIs in the same way as it covers banks.
10
Reserve Bank to repay non‑callable deposits on repeal of Division 3 of Part II On the repeal of Division 3 of Part II of the
Banking Act 1959 , the Reserve Bank is to repay to an ADI the amount then standing to the credit of the ADI’s Non‑callable Deposit Account. The repayment is to be made as soon as practicable after the repeal takes effect.Note: Schedule 2 provides for the repeal of the Division. The repeal takes effect on a separate day to be Proclaimed (rather than on the APRA commencement).
Regulations in force immediately before the APRA commencement under section 50 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if they covered ADIs in the same way as they cover banks.
Regulations in force immediately before the APRA commencement under section 51 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if they covered ADIs in the same way as they cover banks.
An appointment of an investigator under section 61 of the old Act, being an appointment that is still in force immediately before the APRA commencement, has effect after that commencement as if it were an appointment by APRA under section 61 of the amended Act.
An obligation to provide information to the Reserve Bank under section 62 of the old Act, being an obligation that is undischarged as at the APRA commencement, becomes, on the APRA commencement, an obligation to provide the information to APRA.
15
Assumption of control of business under section 65 (1) An order in force in relation to an institution immediately before the APRA commencement under section 65 of the old Act continues to have effect after that commencement as if it authorised APRA to assume control of, and to carry on, the institution’s business.
(2) If the Reserve Bank is, immediately before the APRA commencement, in control of an institution’s business under section 65 of the old Act, the Reserve Bank is to transfer the control of the institution’s business to APRA, and the provisions of Subdivision B of Division 2 of the amended Act apply in relation to APRA being in control of the institution’s business in accordance with subsection 65(3) of that Act.
(3) The regulations may make provision dealing with how the transfer of control of an institution’s business as mentioned in subitem (2) is to occur, or otherwise relating to such a transfer.
(1) A consent in force immediately before the APRA commencement under section 66 of the old Act continues to have effect after that commencement as if it were a consent under section 66 of the amended Act.
(2) Any conditions to which the consent was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions applying under section 66 of the amended Act.
(1) This item applies to an institution that, immediately before the APRA commencement was a bank that was assuming or using a bank‑related word in relation to a financial business (within the meaning of section 66 of the old Act).
(2) The institution is taken, on the APRA commencement, to have been granted a consent under section 66 of the amended Act covering the assumption or use of the word.
(1) A consent in force immediately before the APRA commencement under section 67 of the old Act continues to have effect after that commencement as if it were a consent under section 67 of the amended Act.
(2) Any conditions to which the consent was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions applying under section 67 of the amended Act.
Regulations in force immediately before the APRA commencement under section 71 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if:
(a) they covered ADIs in the same way as they cover banks; and
(b) references in them to the Reserve Bank were instead references to APRA.
In this Part:
amended Act means theFinancial Corporations Act 1974 as in force immediately after the APRA commencement.
APRA commencement means the commencement of theAustralian Prudential Regulation Authority Act 1998 .
old Act means theFinancial Corporations Act 1974 as in force immediately before the APRA commencement.
21
Treatment of exemptions and determinations under paragraph 8(2)(l) An exemption or determination in force immediately before the APRA commencement under paragraph 8(2)(l) of the old Act continues to have effect after that commencement as if it were an exemption or determination under paragraph 8(2)(l) of the amended Act.
The following provisions apply in relation to matters under section 10 of the old Act:
(a) the list under subsection 10(1) of the old Act, being that list as is in force immediately before the APRA commencement, has effect after that commencement as if it were prepared by the Governor of the Reserve Bank under subsection 10(1) of the amended Act;
(b) an obligation on the Treasurer to publish notice of a matter, or to notify a person of a matter, being an obligation that is undischarged as at the APRA commencement, becomes, on that commencement, an obligation that the Governor of the Reserve Bank is to discharge;
(c) a determination in force under a provision of section 10 of the old Act immediately before the APRA commencement continues to have effect, after that commencement as if it were a determination under that provision of section 10 of the amended Act;
(d) a request under subsection 10(7) of the old Act that has not been dealt with by the APRA commencement is, after that commencement, to be dealt with as if it were a request under subsection 10(7) of the amended Act.
23
Treatment of exemptions under subsection 11(14) An exemption in force immediately before the APRA commencement under subsection 11(14) of the old Act continues to have effect after that commencement as if it were an exemption under subsection 11(14) of the amended Act.
(1) In this Part:
APRA means the Australian Prudential Regulation Authority.
APRA Act means theAustralian Prudential Regulation Authority Act 1998 .
APRA commencement means the commencement of theAustralian Prudential Regulation Authority Act 1998 .
APRA employee means a person appointed under section 45 of the APRA Act.
ASIC means the Australian Securities and Investments Commission.
ISC employee means a member of the staff assisting the Insurance and Superannuation Commissioner.
person’s transfer time has the meaning given by subitem 25(1) or subitem 25(3), as the case requires.
RBA employee means a person appointed under Part VII of theReserve Bank Act 1959 .
Reserve Bank means the Reserve Bank of Australia.(2) A reference in this Part to the Commonwealth includes a reference to the Insurance and Superannuation Commissioner.
25 Transfer of staff from the Reserve Bank and the ISC (1) The Governor of the Reserve Bank, in consultation with APRA’s Chief Executive Officer, may, in writing, determine that, at a specified time (the
person’s transfer time ), not being a time before the APRA commencement, a specified RBA employee:(a) ceases to be an RBA employee; and
(b) becomes an APRA employee.
(2) The determination has effect accordingly.
(3) An ISC employee may, at a particular time (the
person’s transfer time ), become an APRA employee because of a declaration under section 81C of thePublic Service Act 1922 .
(1) APRA is to determine the terms and conditions applying to a person who becomes an APRA employee as mentioned in subitem 25(1) or (3) as if the person had actually been appointed under section 45 of the APRA Act. The terms and conditions relating to remuneration must not be less favourable than those that applied to the person immediately before the person’s transfer time.
(2) The person is entitled to retain, as an APRA employee, all the benefits that had accrued to the person in respect of his or her length of service as an RBA employee or an ISC employee up to the person’s transfer time, as if those benefits had accrued in respect of the person’s position as an APRA employee.
(3) The person’s service as an APRA employee is taken, for all purposes, to have been continuous with the person’s service, immediately before the person’s transfer time, as an RBA employee or an ISC employee.
(4) The person is not entitled to receive any payment or other benefit merely because he or she stopped being an RBA employee or an ISC employee as a result of this Part.
(5) This item does not prevent the terms and conditions applying to the person as an APRA employee being varied (including by omitting existing terms and conditions or adding new terms and conditions) after the person’s transfer time:
(a) in accordance with those terms and conditions; or
(b) by or under a law, award, determination or agreement.
(1) Before a person becomes an APRA employee as mentioned in subitem 25(1) or (3), the Reserve Bank or the Insurance and Superannuation Commissioner, as the case requires, must give the person a written statement setting out particulars of the benefits to which the person has an accrued entitlement.
(2) In any proceedings relating to subitem 26(2), the statement is prima facie evidence of the matters set out in the statement.
(3) Item 25 has effect in relation to the person even if the Reserve Bank or the Insurance and Superannuation Commissioner fails to give the required statement.
(1) The Treasurer may, in writing, make any or all of the following declarations:
(a) a declaration that a specified asset of the Commonwealth vests in APRA, or in ASIC, at a specified time, not being before the APRA commencement, without any conveyance, transfer or assignment;
(b) a declaration that a specified instrument in relation to a specified asset continues to have effect after the asset vests in APRA, or in ASIC, as if a reference in the instrument to the Commonwealth were a reference to APRA or ASIC, as the case requires;
(c) a declaration that APRA or ASIC becomes the Commonwealth’s successor in law in relation to a specified asset immediately after the asset vests in APRA or ASIC.
(2) A declaration has effect accordingly.
(3) Subitem (1) does not prevent the Commonwealth from transferring an asset to APRA or ASIC otherwise than under that subitem.
(4) A declaration under this item is not to be taken to be a legislative instrument for the purposes of the
Legislative Instruments Act 1998 .
(1) The Treasurer may, in writing, make any or all of the following declarations:
(a) a declaration that a specified liability of the Commonwealth ceases to be a liability of the Commonwealth and becomes a liability of APRA, or of ASIC, at a specified time, not being before the APRA commencement;
(b) a declaration that a specified instrument in relation to a specified liability continues to have effect after the liability becomes a liability of APRA, or of ASIC, as if a reference in the instrument to the Commonwealth were a reference to APRA or ASIC, as the case requires;
(c) a declaration that APRA or ASIC becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of APRA or ASIC.
(2) A declaration has effect accordingly.
(3) Subitem (1) does not prevent the Commonwealth from transferring a liability to APRA or ASIC otherwise than under that subitem.
(4) A declaration under this item is not to be taken to be a legislative instrument for the purposes of the
Legislative Instruments Act 1998 .
30
References in instruments to Reserve Bank or ISC become references to APRA (1) APRA may, in writing, declare that a specified instrument that:
(a) was made before the APRA commencement; and
(b) contains one or more references to the Reserve Bank or to the Insurance and Superannuation Commissioner;
has effect, from a specified date, as if all, or specified, references in the instrument to the Reserve Bank or the Commissioner were references to APRA.
Note: An instrument may be specified by name, by inclusion in a specified class or in any other way.
(2) A declaration under subitem (1) has effect accordingly.
(3) In this item:
instrument includes a document.
(1) The Treasurer may transfer to APRA, or to ASIC, records that relate to the functions of APRA or ASIC.
(2) This item does not authorise a Commonwealth record to be transferred, or otherwise dealt with, except in accordance with the
Archives Act 1983 .
(3) In this item:
Commonwealth record andrecord have the same meanings as in theArchives Act 1983 .
Stamp duty or other tax is not payable under a law of a State or Territory in respect of:
(a) the vesting or transfer of an asset or liability under this Division; or
(b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, the vesting or transfer of an asset or liability under this Division.
The Treasurer may, by instrument in writing, delegate all or any of the Treasurer’s powers under this Division to an officer of the Department.
In this Division:
ASIC means the Australian Securities and Investments Commission.
Commissioner means the Insurance and Superannuation Commissioner appointed under theInsurance and Superannuation Commissioner Act 1987 as in force prior to the APRA commencement.
Insurance Act means theInsurance Act 1973 .
Life Insurance Act means theLife Insurance Act 1995 .
RSA Act means theRetirement Savings Accounts Act 1997 .
SIS Act means theSuperannuation Industry (Supervision) Act 1993 .
35
Instruments made and things done before the APRA commencement by the Commissioner under the Insurance Act, the Life Insurance Act, the RSA Act and the SIS Act (1) An instrument made or issued by the Commissioner under a provision of the Insurance Act, the Life Insurance Act, the RSA Act or the SIS Act and in force immediately before the APRA commencement, continues to have effect after the APRA commencement as if it were made or issued by:
(a) APRA, to the extent that the instrument could, on the APRA commencement, be made or issued by APRA under its powers and functions in the Act under which the instrument was made or issued; and
(b) ASIC, to the extent that the instrument could, on the APRA commencement, be made or issued by ASIC under its powers and functions in the Act under which the instrument was made or issued.
(2) If an instrument was, when made, to have effect only for a limited period, it has effect only for so much of the period as has not already expired before the APRA commencement.
(3) Anything done before the APRA commencement in relation to the Commissioner (for example, lodging an application with the Commissioner) under a provision of the Insurance Act, the Life Insurance Act, the RSA Act or the SIS Act has effect after the APRA commencement as if it had been done in relation to:
(a) APRA to the extent to which the provision is administered by APRA after the APRA commencement; and
(b) ASIC to the extent to which the provision is administered by ASIC after the APRA commencement.
(4) A reference in this item to an instrument in force includes a reference to an instrument that has been made but that is not yet in operation.
36
Instruments made and things done before the APRA commencement by the Commissioner under Acts now administered by ASIC (1) An instrument made or issued by the Commissioner under a provision of:
(a) the
Insurance (Agents and Brokers) Act 1984 ; or(b) the
Insurance Contracts Act 1984 ; or(c) the
Superannuation (Resolution of Complaints) Act 1993 ;and in force immediately before the APRA commencement, continues to have effect after the APRA commencement as if it were made or issued, on the APRA commencement, by ASIC under the Act under which it was made or issued.
(2) If an instrument was, when made, to have effect only for a limited period, it has effect only for so much of the period as has not already expired before the APRA commencement.
(3) Anything done before the APRA commencement in relation to the Commissioner (for example, lodging an application with the Commissioner) under a provision of:
(a) the
Insurance (Agents and Brokers) Act 1984 ; or(b) the
Insurance Contracts Act 1984 ; or(c) the
Superannuation (Resolution of Complaints) Act 1993 ;has effect after the APRA commencement as if it had been done in relation to ASIC.
(1) If, immediately before the APRA commencement, the Commissioner was a party to a legal proceeding in a court or tribunal then:
(a) to the extent that the proceeding relates to a function of APRA—APRA is substituted as a party to the proceeding and has the same rights in the proceeding as the Commissioner had; and
(b) to the extent that the proceeding relates to a function of ASIC—ASIC is substituted as a party to the proceeding and has the same rights in the proceeding as the Commissioner had.
(2) Subitem (1) does not limit a power of a court or tribunal to make orders or give directions about:
(a) whether one or both of APRA or ASIC continue as a party or parties to the proceeding; and
(b) the rights in the proceeding of any of the parties to the proceeding.
38
Continued operation of Part IX of the Insurance Act (1) Despite the repeal of Part IX of the Insurance Act, that Part, as in force immediately before the APRA commencement, continues to apply to bodies corporate to which it applied immediately before the APRA commencement as if references in that Part to the Commissioner were instead references to APRA.
(2) The regulations may provide that Part IX of the Insurance Act, as it continues to apply under subitem (1), has effect with specified modifications.
39
Modified operation of item 27 of Schedule 2 to the Insurance Laws Amendment Act 1998 Item 27 of Schedule 2 to the
Insurance Laws Amendment Act 1998 has effect as if the reference to the Commissioner were instead a reference to the Commissioner or to APRA.
In this Part:
amended Act means theReserve Bank Act 1959 as in force immediately after the APRA commencement.
APRA commencement means the commencement of theAustralian Prudential Regulation Authority Act 1998 .
old Act means theReserve Bank Act 1959 as in force immediately before the APRA commencement.
41
Effect of amendments reducing number of Deputy Governors If, on the APRA commencement, there are 2 people holding office as Deputy Governors of the Reserve Bank of Australia, the following provisions have effect during the period starting on the APRA commencement and ending at the first time at which one of those people ceases to hold office as a Deputy Governor:
(a) subsection 12(1) of the old Act continues to have effect as if it referred to there being 2 Deputy Governors of the Reserve Bank of Australia;
(b) subsection 21(3) of the old Act continues to have effect as if it referred to the quorum for a meeting of the Reserve Bank Board being 6 members;
(c) a reference to the Deputy Governor of the Reserve Bank of Australia in the amended Act, or in any other law of the Commonwealth, has effect as if it were a reference to either of the 2 Deputy Governors.
The period of appointment of a member of the Reserve Bank Board to whom subsection 14(5) of the old Act applied immediately before the APRA commencement remains the same, despite the repeal of that subsection.
Section 81 of the old Act continues to have effect (despite its repeal) after the APRA commencement in relation to investigations, to the extent they were completed or in progress before that commencement.
44 Certain corporations are taken to have been granted authorities under section 23 A corporation that, on the commencement of the
Payment Systems (Regulation) Act 1998 :(a) is the holder of the stored value of purchased payment facilities in a class of purchased payment facilities, within the meaning of that Act; and
(b) is not an authorised deposit‑taking institution, within the meaning of the
Banking Act 1959 ;
is taken, on that commencement, to have been granted an authority under section 23 of the
Payment Systems (Regulation) Act 1998 in relation to that class of purchased payment facilities.
45 Regulations may deal with transitional matters arising out of changes to levy legislation (1) The regulations may deal with transitional matters arising out of:
(a) the repeal of the following Acts:
(i) the
General Insurance Supervisory Levy Act 1989 ;(ii) the
Insurance Supervisory Levies Collection Act 1989 ;(iii) the
Life Insurance Supervisory Levy Act 1989 ;(iv) the
Retirement Savings Accounts Supervisory Levy Act 1997 ; and(b) the amendment of the following Acts:
(i) the
Superannuation Entities (Taxation) Act 1987 ;(ii) the
Superannuation Supervisory Levy Act 1991 ; and(c) the enactment of the following Acts:
(i) the
Authorised Deposit‑taking Institutions Supervisory Levy Imposition Act 1998 ;(ii) the
Authorised Non‑operating Holding Companies Supervisory Levy Imposition Act 1998 ;(iii) the
Life Insurance Supervisory Levy Imposition Act 1998 ;(iv) the
General Insurance Supervisory Levy Imposition Act 1998 ;(v) the
Retirement Savings Account Providers Supervisory Levy Imposition Act 1998 ;(vi) the
Superannuation Supervisory Levy Imposition Act 1998 ;(vii) the
Financial Institutions Supervisory Levies Collection Act 1998 .
(2) Without limiting subitem (1), the regulations may provide for:
(a) the crediting of an amount paid by way of one kind of levy against a liability to pay an amount of another kind of levy; and
(b) the waiver of an amount of levy that is due and payable; and
(c) the refund of an amount of levy that has been paid.
46 Regulations may deal with other transitional matters The regulations may deal with other transitional matters relating to the amendments and repeals made by the Schedules to this Act, or relating to the establishment of the Australian Prudential Regulation Authority.
The Governor‑General may make regulations, not inconsistent with this Schedule, prescribing matters required or permitted by this Schedule to be prescribed.
0
0
0