Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (Cth)

Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999

Act No. 44 of 1999 as amended

This compilation was prepared on 23 January 2001

[This Act was amended by Acts Nos. 24 and 160 of 2000]

Amendments from Act No. 24 of 2000

[Schedule 11 (item 4) amended section 3

The amendment commenced on 17 June 1999]

Amendments from Act No. 160 of 2000

[Schedule 4 (item 4) amended subsection 3(2)(e);

Schedule 4 (item 5) repealed subsections 3(14) and (15)

Schedule 4 (items 4 and 5) commenced on 18 January 2001]

Prepared by the Office of Legislative Drafting,

Attorney‑General’s Department, Canberra

Contents

An Act to amend laws, and to deal with transitional matters, in connection with the reform of the financial sector, and for other purposes

1Short title

This Act may be cited as the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999.

2Definitions

In this Act:
Corporations Law means the Corporations Law set out in section 82 of the Corporations Act 1989.
transfer date means the date that is, under subsection 3(16), specified as the transfer date for the purposes of this Act.

3Commencement

(1)
Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2)
The following provisions commence on the transfer date:
(a)
item 4 of Schedule 1 (the commencement of the rest of the items in this Schedule is covered by subsection (1));
(b)
subject to subsections (3), (4) and (5), Schedule 3, other than items 1, 33, 34, 45, 46 and 63 (the commencement of those items is covered by subsection (1));
(c)
Schedule 4;
(d)
item 26 of Schedule 6;
(e)
subject to subsection (12), Schedule 7, other than items 43, 44, 118, 205 and 207 (the commencement of those items is covered by subsections (10), (11) and (13)).
(3)
If item 1 of Schedule 3 commences before the commencement of Schedule 1 to the Corporate Law Economic Reform Program Act 1999, item 60 of Schedule 3 commences on the transfer date and item 61 of Schedule 3 commences immediately after the commencement of Schedule 1 to that Act.
(4)
If item 1 of Schedule 3 commences on the commencement of Schedule 1 to the Corporate Law Economic Reform Program Act 1999, item 60 of Schedule 3 does not commence and item 61 of Schedule 3 commences immediately after the commencement of Schedule 1 to that Act.
(5)
If item 1 of Schedule 3 commences after the commencement of Schedule 1 to the Corporate Law Economic Reform Program Act 1999, item 60 of Schedule 3 does not commence and item 61 of Schedule 3 commences on the transfer date.
(6)
Item 3 of Schedule 6 commences on a day to be fixed by Proclamation.
(7)
Item 6 of Schedule 6 is taken to have commenced on the commencement of Schedule 12 to the Financial Laws Amendment Act 1997.
(7A)
Items 8, 9, 11 and 12 of Schedule 6 are taken to have commenced immediately after the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 received the Royal Assent.
(8)
Item 10 of Schedule 6 is taken to have commenced immediately before the commencement of Part 1 of Schedule 13 to the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998.
(9)
Items 18 and 19 of Schedule 6 are taken to have commenced immediately before the commencement of the Australian Prudential Regulation Authority Act 1998.
(10)
Items 43 and 44 of Schedule 7 commence on the later of:
(a)
the day fixed for the commencement of the section amended by those items, immediately after the commencement of that section; and
(b)
the transfer date.
(11)
Item 118 of Schedule 7 commences on the later of:
(a)
immediately after the commencement of section 17 of the Life Insurance (Conduct and Disclosure) Act 1999; and
(b)
the transfer date.
(12)
If item 7 of Schedule 2 to the Assistance for Carers Legislation Amendment Act 1999 commences on or before the transfer date, item 206 of Schedule 7 to this Act does not commence.
(13)
Items 205 and 207 of Schedule 7 commence on the later of:
(a)
immediately after the commencement of item 7 of Schedule 2 to the Assistance for Carers Legislation Amendment Act 1999;
(b)
the transfer date.
(16)
The Governor‑General may, by Proclamation published in the Gazette, specify the date that is to be the transfer date for the purposes of this Act.

4Schedule(s)

Subject to section 3, 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.

Schedule 1—Amendment of the Australian Prudential Regulation Authority Act 1998

Subsection 3(1)

Insert:
prudential regulation or advice services means services of either or both of the following kinds:
(a)
services consisting of APRA performing a role in the prudential regulation or supervision of entities;
(b)
services consisting of APRA providing advice relating to the prudential regulation or supervision of entities.

Section 9

Repeal the section, substitute:

APRA’s functions

APRA has the following functions:
(a)
the functions conferred on it by or under this Act or any other law of the Commonwealth;
(b)
the functions conferred on it by or under any law of a State or Territory in accordance with subsection 9A(1);
(c)
the function of providing prudential regulation or advice services under agreements entered into in accordance with subsection 9A(2).
9A
Conferral of functions by State or Territory laws or by agreements
Conferral of functions by or under State or Territory laws
(1)
APRA may have functions or powers conferred on it by or under a law of a State or Territory if the conferral of the functions or powers is in accordance with:
(a)
provisions of an agreement entered into by the Commonwealth and the State or Territory, being provisions approved by the Minister for the purposes of this subsection; or
(b)
an approval given by the Minister for the purposes of this subsection.
APRA has the functions and powers so conferred by that law.
Agreements for performance of prudential regulation or advice services
(2)
APRA may, with the approval of the Minister, enter into an agreement with a State, Territory or other person under which APRA is, for a fee, to provide prudential regulation or advice services (whether in Australia or a foreign country). The agreement is only effective for the purposes of this Act to the extent to which APRA’s provision of the services is for a purpose or purposes within the Commonwealth’s legislative power.
Subsection (2) agreement may deal with liabilities between the parties
(3)
An agreement entered into in accordance with subsection (2) may make provision in relation to the circumstances in which, and the extent to which, one party to the agreement is liable to the other party to the agreement in respect of matters arising under or out of the agreement.
Delegation of Minister’s power to approve subsection (2) agreement
(4)
The Minister may, in writing, delegate the power under subsection (2) to approve the entering into of agreements to a person holding or performing the duties of a Senior Executive Service office in the Department.

After subsection 51(1)

Insert:
(1A)
Subsection (1) does not apply to a fee payable to APRA under an agreement entered into in accordance with subsection 9A(2).
4
Subsection 56(1) (after paragraph (c) of the definition of Act covered by this section)
Insert:
(ca)
the Financial Sector (Transfers of Business) Act 1999;

Paragraph 56(5)(a)

Omit “or any other agency (including foreign agencies) specified in the regulations”, substitute “, or any other agency (including foreign agencies) specified in the regulations,”.

Paragraph 56(5)(b)

Omit “if the disclosure”.

Subsections 57(1) and (2)

Omit “or an agent or other person carrying on any business of APRA”, substitute “or an agent of APRA, a Board member or an APRA staff member,”.

Subsection 57(3)

After “subsection”, insert “(1) or”.

Section 58

Repeal the section, substitute:

Protection from liability

(1)
Subject to subsection (2), APRA, a Board member, an APRA staff member, or an agent of APRA, a Board member or an APRA staff member, is not subject to any liability to any person in respect of anything done, or omitted to be done, in the exercise or performance, or the purported exercise or performance, of powers, functions or duties conferred or imposed on APRA, the Board, a Board member or an APRA staff member by or under:
(a)
this Act or another law of the Commonwealth; or
(b)
a law of a State or Territory referred to in paragraph 9(b); or
(c)
subject to subsection (3), an agreement referred to in paragraph 9(c).
(2)
Subsection (1) does not apply to an act or omission in bad faith.
(3)
Subsection (1), as it applies in relation to powers, functions or duties conferred or imposed by an agreement referred to in paragraph 9(c), has effect subject to provisions of the agreement referred to in subsection 9A(3) (which allows the agreement to deal with liabilities as between the parties).

Schedule 2Amendment of the Banking Act 1959

Subsection 5(1) (definition of bank)

Repeal the definition.
2
Subsection 5(1) (definition of industry liquidity contract)
Repeal the definition.

Subsection 5(1)

Insert:
industry support contract means a contract under which emergency financial 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. The contract may also deal with matters associated with the provision of the financial support.

After section 6A

Insert in Part I:

Application of Criminal Code

The Criminal Code applies to all offences against this Act.

Sections 7 and 8

Repeal the sections, substitute:
7
Person other than a body corporate must not carry on banking business
(1)
A person is guilty of an offence if:
(a)
the person carries on any banking business in Australia; and
(b)
the person is not a body corporate; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2)
An offence against subsection (1) is an indictable offence.
(3)
If a person carries on banking business in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
8
Only the Reserve Bank and bodies corporate that are ADIs may carry on banking business
(1)
A body corporate is guilty of an offence if:
(a)
the body corporate carries on any banking business in Australia; and
(b)
the body corporate is not the Reserve Bank; and
(c)
the body corporate is not an ADI; and
(d)
there is no order in force under section 11 determining that this subsection does not apply to the body corporate.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2)
An offence against subsection (1) is an indictable offence.
(3)
If a body corporate carries on banking business in circumstances that give rise to the body corporate committing an offence against subsection (1), the body corporate is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 9(6)

Repeal the subsection, substitute:
(6)
An ADI is guilty of an offence if:
(a)
it does, or fails to do, an act; and
(b)
doing, or failing to do, the act results in a contravention of a condition of the ADI’s authority; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(6A)
An offence against subsection (6) is an indictable offence.
(6B)
If an ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (6), the ADI is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 10(3)

Repeal the subsection, substitute:
(3)
An ADI is guilty of an offence if:
(a)
an alteration is made to the Act, charter, deed of settlement, memorandum of association, articles of association, constitution or other document by which the ADI was constituted as a body corporate; and
(b)
the ADI does not, within 3 months of the making of the alteration, give to APRA a written statement:
(i)
that sets out particulars of the alteration; and
(ii)
that is verified by a statutory declaration made by a senior officer of the ADI; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Subsection 11(1)

Omit “or specified provisions”, substitute “provisions (other than section 63) or specified provisions (other than section 63)”.

Subsection 11(3)

Repeal the subsection, substitute:
(3)
A person is guilty of an offence if:
(a)
the person does, or fails to do, an act; and
(b)
doing, or failing to do, the act results in a contravention of a condition to which an order under this section is subject (being an order that is in force and that applies to the person).
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3A)
An offence against subsection (3) is an indictable offence.
(3B)
If a person does or fails to do an act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 11AA(5)

Repeal the subsection, substitute:
(5)
The body corporate is guilty of an offence if:
(a)
it does, or fails to do, an act; and
(b)
doing, or failing to do, the act results in a contravention of a condition of the authority; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the body corporate.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(5A)
An offence against subsection (5) is an indictable offence.
(5B)
If the body corporate does or fails to do an act in circumstances that give rise to the body corporate committing an offence against subsection (5), the body corporate is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 11AF(1)

Omit all the words from and including “by”, substitute:
by:
(a)
all ADIs; or
(b)
all authorised NOHCs; or
(c)
a specified class of ADIs or authorised NOHCs; or
(d)
one or more specified ADIs or authorised NOHCs.

After subsection 11AF(1)

Insert:
(1A)
A standard may impose different requirements to be complied with in different situations or in respect of different activities.

Subsection 11AF(4)

Omit “If APRA determines or varies a standard”, substitute “Subject to subsection (6A), if APRA determines or varies a standard referred to in paragraph (1)(a), (b) or (c)”.

After subsection 11AF(4)

Insert:
(4A)
If APRA determines or varies a standard referred to in paragraph (1)(d) it must, as soon as practicable, give a copy of the standard, or of the variation, to the ADI or authorised NOHC, or to each ADI or authorised NOHC, to which the standard applies. Whenever APRA gives a copy of a standard, or of a variation, to an ADI or authorised NOHC, it must also provide a copy to the Treasurer.

Subsection 11AF(5)

After “revokes a standard”, insert “referred to in paragraph (1)(a), (b) or (c)”.

After subsection 11AF(5)

Insert:
(5A)
If APRA revokes a standard referred to in paragraph (1)(d) it must, as soon as practicable, give notice of the revocation to the ADI or authorised NOHC, or to each ADI or authorised NOHC, to which the standard applied. Whenever APRA gives a notice of revocation to an ADI or authorised NOHC, it must also provide a copy to the Treasurer.

Subsection 11AF(6)

Before “APRA”, insert “Subject to subsection (6A),”.

After subsection 11AF(6)

Insert:
(6A)
If APRA considers that a standard, or a variation of a standard, contains commercially sensitive information:
(a)
APRA is not required to include that information in a notice published under subsection (4) or in the version of the standard that is available under subsection (6); but
(b)
APRA may include some or all of that information in either or both of those things if APRA considers it appropriate to do so.

Subsection 11AF(7)

Omit “, (5) or (6)”, substitute “, (4A), (5), (5A) or (6)”.
20
Subdivision A of Division 1BA of Part II (heading)
Repeal the heading, substitute:
Subdivision A—Directions other than to enforce certified industry support contracts

After subsection 11CA(2)

Insert:
(2A)
Without limiting the generality of subsection (2), a direction referred to in a paragraph of that subsection may:
(a)
deal with some only of the matters referred to in that paragraph; or
(b)
deal with a particular class or particular classes of those matters; or
(c)
make different provision with respect to different matters or different classes of matters.
22
Subdivision B of Division 1BA of Part II (heading)

Repeal the heading, substitute:
Subdivision B—Directions to enforce certified industry support contracts

Section 11CB

Omit “liquidity”, substitute “support”.
Note: The heading to section 11CB is altered by omitting “liquidity” and substituting “support”.

Subsections 11CC(1), (4) and (6)

Omit “liquidity”, substitute “support”.
Note: The heading to section 11CC is altered by omitting “liquidity” and substituting “support”.

Subsections 11CG(1) and (2)

Repeal the subsections, substitute:
(1)
An ADI or an authorised NOHC is guilty of an offence if:
(a)
it does, or fails to do, an act; and
(b)
doing, or failing to do, the act results in a contravention of a direction given to it under Subdivision A or Subdivision B; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI or authorised NOHC.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1A)
If an ADI or an authorised NOHC does or fails to do an act in circumstances that give rise to the ADI or NOHC committing an offence against subsection (1), the ADI or NOHC is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the ADI or NOHC committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
(2)
An officer of an ADI or an authorised NOHC is guilty of an offence if:
(a)
the officer fails to take reasonable steps to ensure that the ADI or NOHC complies with a direction given to it under Subdivision A or Subdivision B; and
(b)
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; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the officer.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2A)
If an officer of an ADI or an authorised NOHC fails to take reasonable steps to ensure that the ADI or NOHC complies with a direction given to it under Subdivision A or Subdivision B in circumstances that give rise to the officer committing an offence against subsection (2), the officer is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the officer committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 11CG(3)

Repeal the subsection, substitute:
(3)
In this section, officer has the meaning given by section 9 of the Corporations Law.

Subsection 11E(2)

Repeal the subsection, substitute:
(2)
A foreign ADI is guilty of an offence if:
(a)
it accepts a deposit from a person in Australia; and
(b)
before accepting the deposit, the foreign ADI did not inform the person, in a manner approved by APRA, of the requirements of this Act to which the foreign ADI is not subject because of subsection (1); and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the foreign ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Subsection 13(3)

Repeal the subsection, substitute:
Information to be supplied if ADI unable, or likely to be unable, to meet obligations
(3)
An ADI is guilty of an offence if:
(a)
the ADI considers that it is likely to become unable to meet its obligations, or that it is about to suspend payment; and
(b)
the ADI does not immediately inform APRA of the situation; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3A)
An offence against subsection (3) is an indictable offence.

Subsection 13A(4)

Repeal the subsection, substitute:
(4)
An ADI is guilty of an offence if:
(a)
it does not 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; and
(b)
APRA has not authorised the ADI to hold assets of a lesser value; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(5)
An offence against subsection (4) is an indictable offence.
(6)
If the circumstances relating to the asset holdings of an ADI are such that give rise to the ADI committing an offence against subsection (4), the ADI is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 13B(1)

Repeal the subsection, substitute:
(1)
A person appointed by APRA to investigate the affairs of an ADI under section 13 or 13A is entitled to have access to the books, accounts and documents of the ADI, and to require the ADI to give the person information or facilities to conduct the investigation.
(1A)
An ADI is guilty of an offence if:
(a)
APRA has appointed a person to investigate the affairs of the ADI under section 13 or 13A; and
(b)
the ADI:
(i)
does not give the person access to its books, accounts and documents; or
(ii)
fails to comply with a requirement made under subsection (1) for the provision of information or facilities; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1B)
If the ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (1A), the ADI is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
31
Subsection 14A(2) (second sentence and penalty)
Repeal the sentence and the penalty.

After subsection 14A(2)

Insert:
(2A)
A person who is or has been an officer of an ADI is guilty of an offence if:
(a)
there is an ADI statutory manager in relation to the ADI; and
(b)
under subsection (2), the ADI statutory manager requires the person to give the ADI statutory manager information; and
(c)
the person fails to comply with the requirement; and
(d)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
33
Subsection 16B(1) (second sentence and penalty)
Repeal the sentence and the penalty.

After subsection 16B(1)

Insert:
(1A)
A person who is or has been an auditor of an ADI, an authorised NOHC, or a subsidiary of an ADI or an authorised NOHC, is guilty of an offence if:
(a)
under subsection (1), APRA requires the person to provide information; and
(b)
the person fails to comply with the requirement; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.

Subsections 16B(2), (3) and (4)

Repeal the subsections, substitute:
Additional duty to give information about ADIs
(2)
A person who is or has been an auditor of an ADI is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the ADI is insolvent, or there is a significant risk that the ADI will become insolvent; or
(ii)
the ADI has failed to comply with a prudential standard, a requirement under this Act or the regulations, a direction under Division 1BA of Part II or a condition of its section 9 authority; or
(iii)
an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
Additional duty to give information about authorised NOHCs
(3)
A person who is or has been an auditor of an authorised NOHC is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the NOHC is insolvent, or there is a significant risk that the NOHC will become insolvent; or
(ii)
the NOHC has failed to comply with a prudential standard, a requirement under this Act or the regulations, a direction under Division 1BA of Part II or a condition of its NOHC authority; or
(iii)
an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
Additional duty to give information about subsidiaries of ADIs or authorised NOHCs
(4)
A person who is or 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) is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or
(ii)
the subsidiary has failed to comply with a requirement under this Act or the regulations; or
(iii)
if the subsidiary is a subsidiary of an ADI—an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; or
(iv)
if the subsidiary is a subsidiary of an authorised NOHC—an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.

Subsection 23(1)

Repeal the subsection, substitute:
(1)
An ADI is guilty of an offence if:
(a)
it fails to comply with section 22 on any day; and
(b)
that day is not a day to which subsection (2) applies; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A)
If an ADI is convicted of an offence against subsection (1), it is liable to a fixed penalty equal to the amount worked out using the formula:

Subsection 33(4)

Repeal the subsection, substitute:
(4)
An ADI is guilty of an offence if:
(a)
the ADI receives a notice under subsection (1); and
(b)
the ADI does not comply with the notice within:
(i)
7 days after receiving the notice; or
(ii)
if a longer period for compliance is specified by the Reserve Bank—the period so specified; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(4A)
An offence against subsection (4) is an indictable offence.
(4B)
If an ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (4), the ADI is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 36(1)

Omit all the words after “ADIs”.

After subsection 36(1)

Insert:
(1A)
An ADI is guilty of an offence if:
(a)
the Reserve Bank has made a determination under subsection (1) of a policy that applies to the ADI; and
(b)
the ADI fails to follow the policy; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1B)
An offence against subsection (1A) is an indictable offence.

Subsection 36(2)

Omit all the words after “ADIs”.

After subsection 36(2)

Insert:
(2A)
An ADI is guilty of an offence if:
(a)
the Reserve Bank has given a direction under subsection (2) that applies to the ADI; and
(b)
the ADI fails to comply with the directions; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2B)
An offence against subsection (2A) is an indictable offence.
Note: The heading to section 38A is altered by omitting “bank” and substituting “ADI”.

At the end of section 41

Add:
(2)
A person is guilty of an offence if:
(a)
the person contravenes subsection (1); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of this subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3)
An offence against subsection (2) is an indictable offence.

After subsection 42(1)

Insert:
(1A)
A person is guilty of an offence if:
(a)
the person fails to comply with subsection (1); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of this subsection.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

At the end of section 42

Add:
(3)
A person is guilty of an offence if:
(a)
the person fails to comply with subsection (2); and

(b)
there is no order in force under section 11 determining that this subsection does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of this subsection.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

After subsection 45(1)

Insert:
(1A)
A person is guilty of an offence if:
(a)
the person fails to comply with subsection (1); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of this subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1B)
An offence against subsection (1A) is an indictable offence.

At the end of section 45

Add:
(4)
A person is guilty of an offence if:
(a)
the person fails to comply with subsection (3); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of this subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(5)
An offence against subsection (4) is an indictable offence.

At the end of section 46

Add:
(2)
A person is guilty of an offence if:
(a)
the person fails to comply with subsection (1); and
(b)
there is no order in force under section 11 determining that subsection (1) does not apply to the person; and
(c)
there is no instrument in force under section 48 exempting the person from the application of subsection (1).
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3)
An offence against subsection (2) is an indictable offence.

Part VI (heading)

Repeal the heading, substitute:

Part VI—Collection and publication of information about ADIs, authorised NOHCs and their subsidiaries

After subsection 61(2)

Insert:
(2A)
A body corporate is guilty of an offence if:
(a)
under subsection (1), APRA has appointed a person to investigate and report on prudential matters in relation to the body corporate; and
(b)
the body corporate:
(i)
does not give the person access to its books, accounts and documents; or
(ii)
fails to comply with a requirement made under subsection (2) for the provision of information or facilities; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the body corporate.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2B)
If a body corporate does or fails to do an act in circumstances that give rise to the body corporate committing an offence against subsection (2A), the body corporate is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 62(1) (second sentence)

Repeal the sentence.

After subsection 62(1)

Insert:
(1A)
A person is guilty of an offence if:
(a)
under subsection (1), APRA requires the person to provide information; and
(b)
the person fails to comply with the requirement; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1B)
An offence against subsection (1A) is an indictable offence.
(1C)
If a person fails to comply with a requirement under subsection (1) in circumstances that give rise to the person committing an offence against subsection (1A), the person is guilty of an offence against subsection (1A) in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 63(1)

Repeal the subsection, substitute:
(1)
An ADI, other than a foreign ADI, is guilty of an offence if:
(a)
the ADI:
(i)
enters into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or
(ii)
effects a reconstruction of the ADI; and
(b)
the Treasurer did not give prior consent in writing to the ADI entering into the arrangement or agreement or effecting the reconstruction.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1A)
An offence against subsection (1) is an indictable offence.

Subsection 63(4)

Repeal the subsection, substitute:
(4)
A foreign ADI is guilty of an offence if:
(a)
there is a proposal that involves the ADI:
(i)
entering into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or
(ii)
effecting a reconstruction of the ADI; and
(b)
the ADI does not give the Treasurer reasonable notice, in writing, of the proposal.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(4A)
An offence against subsection (4) is an indictable offence.

Subsections 66(1) and (1A)

Repeal the subsections, substitute:
(1)
A person is guilty of an offence if:
(a)
the person carries on a financial business, whether or not in Australia; and
(b)
the person assumes or uses, in Australia, a restricted word or expression in relation to that financial business; and
(c)
neither subsection (1AB) nor subsection (1AC) allows that assumption or use of that word or expression; and
(d)
APRA did not consent to that assumption or use of that word or expression; and
(e)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: For the meanings of restricted word or expression, assume or use and financial business, see subsection (4).
Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1AA)
If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
(1AB)
It is not an offence against subsection (1) for the Reserve Bank to assume or use the words bank, banker or banking in relation to its financial business.
(1AC)
It is not an offence against subsection (1) for an ADI to assume or use the word banking in referring to the fact that it has been granted an authority under this Act.
Note: For example, an ADI may, in its letterhead, refer to itself as being authorised under the Banking Act 1959 to carry on banking business.

After subsection 66(2A)

Insert:
(2B)
If APRA:
(a)
grants a consent; or
(b)
takes action under subsection (2) in relation to a consent;
APRA must give ASIC notice of the granting of the consent or the taking of the action.

Subsection 66(3)

Repeal the subsection, substitute:
(3)
A person is guilty of an offence if:
(a)
the person has been given a consent under this section; and
(b)
the person contravenes a condition to which the consent is subject; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3A)
If a person does or fails to do an act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 66A(1)

Repeal the subsection, substitute:
(1)
A person, other than an ADI, is guilty of an offence if:
(a)
the person carries on a financial business, whether or not in Australia; and
(b)
the person assumes or uses, in Australia, the expression authorised deposit‑taking institution, or ADI, in relation to that financial business; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: For the meanings of assume or use and financial business, see subsection (2).
Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1A)
If a person assumes or uses an expression in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 67(1)

Repeal the subsection, substitute:
(1)
A person, other than an ADI, is guilty of an offence if:
(a)
the person carries on banking business in a foreign country but does not carry on banking business in Australia; and
(b)
the person establishes or maintains an office in Australia wholly or partly in connection with the carrying on of that banking business in that foreign country; and
(c)
APRA did not consent, in writing, to the establishment or maintenance of that office; and
(d)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1A)
If a person establishes or maintains an office in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 67(3)

Repeal the subsection, substitute:
(3)
A person is guilty of an offence if:
(a)
the person has been given a consent under this section; and
(b)
the person contravenes a condition to which the consent is subject; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(4)
If a person does or fails to do an Act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

Subsection 68(2)

Omit “A bank”, substitute “An ADI”.

Subsection 68(2)

Omit “the bank”, substitute “the ADI”.

Subsection 68(4)

Repeal the subsection, substitute:
(4)
In this section:
ADI includes the Reserve Bank.
63
Subsections 69(1), (2), (6), (7), (11) and (11A)
Omit “a bank”, substitute “an ADI”.

Subsection 69(3)

Omit “A bank”, substitute “An ADI”.

Subsection 69(3)

After “statement”, insert “, complying with subsection (4) and any regulations under subsection (3),”.

After subsection 69(3)

Insert:
(3AA)
The ADI is guilty of an offence if:
(a)
it does not give the Treasurer a statement as required by subsection (3); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Subsections 69(4), (5) and (7)

Omit “the bank” (wherever occurring), substitute “the ADI”.

After subsection 69(5)

Insert:
(5A)
The ADI is guilty of an offence if:
(a)
it does not pay, at the time of the delivery of the statement, the amount specified in the statement, as required by subsection (5); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Subsection 69(7)

Omit “that bank” (wherever occurring), substitute “that ADI”.

Subsection 69(7)

Omit “first‑mentioned bank”, substitute “first‑mentioned ADI”.

After subsection 69(7)

Insert:
(7A)
The ADI is guilty of an offence if:
(a)
it does not pay moneys to a person as required by subsection (7); and
(b)
there is no order in force under section 11 determining that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Subsection 69(10)

Repeal the subsection.

Section 69A

Repeal the section.

Subsections 69C(1) and (2)

Repeal the subsections.

Subsection 69C(6)

Omit “(1) or”.

Subsection 69C(7)

Repeal the subsection.

At the end of section 69C

Add:
Note: For provisions relating to proof of offences by bodies corporate, see Part 2.5 of the Criminal Code.

Subsection 71(3)

Omit “banks”, substitute “ADIs or NOHCs”.

Schedule 1 (heading)

Repeal the heading, substitute:

Schedule 1—State and Territory laws relating to ADI mergers

Note: See section 38A.

Schedule 3Amendment of the Corporations Law

Part 1—Transfer of financial institutions and friendly societies

At the end of the Corporations Law

Add:

Schedule 4—Transfer of financial institutions and friendly societies

Note: See section 1465A.

Part 1—Preliminary

Definitions

In this Schedule, except so far as the contrary intention appears:
AFIC Code of this jurisdiction means the Australian Financial Institutions Commission Code as set out in the Australian Financial Institutions Commission Act 1992 of Queensland as in force immediately before the transfer date and as applied as a law of this jurisdiction.
Financial Institutions Code of this jurisdiction means the Financial Institutions Code set out in the Financial Institutions (Queensland) Act 1992 as in force immediately before the transfer date and as applied as a law of this jurisdiction.
Friendly Societies Code means the Friendly Societies Code set out in Schedule 1 to the Friendly Societies (Victoria) Act 1996 as in force immediately before the transfer date.
Friendly Societies Code of this jurisdiction means:
(a)
the Friendly Societies Code as applied as a law of this jurisdiction; or
(b)
if this Law is being applied as a law of Western Australia—the Friendly Societies (Western Australia) Code set out in the Friendly Societies (Western Australia) Act 1999.
member of a transferring financial institution means a person who, immediately before the transfer date, is a member of the institution under:

(a)
the previous governing Code; or
(b)
the rules of the institution.
membership share has the meaning given in subclause 12(3).
previous governing Code for a transferring financial institution means the Code or law under which the institution is registered immediately before the transfer date.
State Supervisory Authority (SSA) for a transferring financial institution means:
(a)
the SSA for the institution within the meaning of the previous governing Code; or
(b)
in the case of The Cairns Cooperative Weekly Penny Savings Bank Limited—the Queensland Office of Financial Supervision.
transfer date means the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999.
transferring financial institution of this jurisdiction means:
(a)
a building society of this jurisdiction (that is, a society that is registered under the Financial Institutions Code of this jurisdiction, and authorised to operate as a building society, immediately before the transfer date); or
(b)
a credit union of this jurisdiction (that is, a society that is registered under the Financial Institutions Code of this jurisdiction, and authorised to operate as a credit union, immediately before the transfer date); or
(c)
a friendly society of this jurisdiction (that is, a body that is registered as a friendly society under the Friendly Societies Code of this jurisdiction immediately before the transfer date); or
(d)
a body registered as an association under Part 12 of the Financial Institutions Code of this jurisdiction immediately before the transfer date; or
(e)
a body registered as a Special Services Provider under the AFIC Code of this jurisdiction immediately before the transfer date; or
(f)
a body registered as an association under Part 12 of the Friendly Societies Code of this jurisdiction immediately before the transfer date; or
(g)
The Cairns Cooperative Weekly Penny Savings Bank Limited referred to in section 263 of the Financial Intermediaries Act 1996 of Queensland if:
(i)
this definition is being applied as a law of Queensland; and
(ii)
a determination by APRA under subitem 7(2) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 is in force immediately before the transfer date.
Note: If a determination is made, the Bank will be covered by the Banking Act 1959 from the transfer date. APRA may only make a determination if the Treasurer and the Queensland Minister responsible for the administration of the Financial Intermediaries Act 1996 of Queensland have agreed that the Bank should be covered by the Banking Act 1959.
transition period means the period of 18 months starting on the transfer date.
withdrawable share means a withdrawable share within the meaning of the Financial Institutions Code of this jurisdiction as in force immediately before the transfer date.

Objective

The objective of this Schedule is to facilitate the registration of:
(a)
building societies and credit unions currently covered by the Financial Institutions Code of this jurisdiction; and
(b)
friendly societies currently covered by the Friendly Societies Code of this jurisdiction; and
(c)
related bodies and associations;
as Corporations Law companies with as little disturbance to the operations of, and as little conversion costs for, the bodies concerned as possible.

Part 2—Transfer to Corporations Law registration

Division 1—The transfer process

3
Registration of transferring financial institution as company
Registration as company on transfer date
(1)
On the transfer date, each transferring financial institution of this jurisdiction is taken to become registered as a company under the Law of this jurisdiction under the name under which the institution was registered under the previous governing Code immediately before the transfer date.
(2)
Subclause (1) applies even if the institution is an externally‑administered body corporate immediately before the transfer date.
Type of company
(3)
The following table sets out the types of company the institution may be registered as under subclause (1):

Type of company that institution may be registered as
Type of institution	Type of company
1	building society with shares on issue	* public company limited by shares and by guarantee
public company limited by shares
2	building society with no shares on issue	* public company limited by guarantee
public company limited by shares and by guarantee
public company limited by shares
3	credit union with shares on issue	* public company limited by shares
public company limited by shares and by guarantee
4	credit union with no shares on issue	* public company limited by guarantee
public company limited by share and by guarantee
public company limited by shares
5	friendly society with no shares on issue	* public company limited by guarantee
public company limited by shares and by guarantee
6	friendly society with shares on issue	*public company limited by shares and by guarantee
public company limited by shares
7	association registered under the Financial Institutions Code of this jurisdiction	* public company limited by shares
public company limited by guarantee
public company limited by shares and by guarantee
proprietary company limited by shares [see note]
8	Special Services Provider incorporated under the AFIC Code of this jurisdiction	* public company limited by shares
9	friendly society association	* public company limited by guarantee
public company limited by shares
public company limited by shares and by guarantee
proprietary company limited by shares [see note]
10	other	* public company limited by guarantee
public company limited by shares
public company limited by shares and by guarantee
proprietary company limited by shares [see note]

Note: To be registered as a proprietary company, the institution would need to comply with subsection 113(1) (no more than 50 non‑employee shareholders). A proprietary company cannot engage in fundraising activities (see subsection 113(3)).
(4)
The institution may elect which particular type of company it is to be registered as under subclause (1). The election:
(a)
must be agreed to by a resolution of the board of the institution; and
(b)
is to be made by written notice lodged with ASIC at least 7 days before the transfer date.
The election must be in the prescribed form.
(5)
The institution is taken to be registered under subclause (1) as the following type of company:
(a)
if the institution’s board makes an election under subclause (4)—the type specified in the election; or
(b)
if the institution’s board does not make an election under subclause (4):
(i)
if regulations under this subparagraph are in force for that type of institution on the transfer date—the type of company prescribed by the regulations; or
(ii)
if no regulations under subparagraph (i) are in force for that type of institution on the transfer date—the type of company that is specified in the table in subclause (3) for that type of institution and is marked with an asterisk.

Documents to be lodged with ASIC by SSA

(1)
The SSA for a transferring financial institution of this jurisdiction must lodge with ASIC:
(a)
a notice that sets out:
(i)
the institution’s name; and
(ii)
the address of the institution’s registered office;
under the previous governing Code immediately before the transfer date; and
(b)
a copy of the institution’s rules as in force immediately before the transfer date; and
(c)
a copy of any entry in its register of charges kept under section 265 of this Law (as applied by the previous governing Code) that relates to the institution; and
(d)
any document lodged under section 263 or 264 of this Law (as applied by the previous governing Code) that relates to:
(i)
the institution; and
(ii)
a charge that is in force immediately before the transfer date.
(2)
If the transferring financial institution is under external administration immediately before the transfer date, the notice referred to in paragraph (1)(a) must also set out:
(a)
the type of external administration; and
(b)
any other prescribed details.
5
Documents to be lodged with ASIC by transferring financial institution
(1)
Within 1 month after a transferring financial institution of this jurisdiction is registered as a company under clause 3, it must lodge with ASIC a notice that sets out the personal details of each director and secretary of the company as at the transfer date. The notice must be in the prescribed form.
Penalty: 5 penalty units.
(2)
The personal details of a director or secretary are the details that would need to be set out in the notice if it were being given under section 242.

Company to set up registers and minute books

Setting up registers and minute books
(1)
A company registered under clause 3 must, within 14 days after the transfer date:
(a)
set up the registers required by sections 168 (registers of members, debenture holders and options holders) and 271 (charges); and
(b)
include in those registers all the information that is required to be in those registers and that is available to the company on registration; and
(c)
set up the minute books required by section 251A.
Incorporation of prior minute books
(2)
The minute books set up under paragraph (1)(c) must incorporate any minute books or similar records kept by the company prior to its registration under clause 3.
Access to registers and minute books
(3)
During the 14 days, the company need not comply with a person’s request to inspect or obtain a copy of:
(a)
information in a register; or
(b)
a minute of a general meeting.
However, the period within which the company must comply with the request begins at the end of the 14 days.

ASIC to complete formalities of registration

(1)
As soon as practicable after a transferring financial institution of this jurisdiction is registered as a company under clause 3, ASIC must:
(a)
give the company an ACN; and
(b)
keep a record of the company’s registration; and
(c)
issue a certificate to the company that states:
(i)
the company’s name; and
(ii)
the company’s ACN; and
(iii)
the company’s type; and
(iv)
that the company is registered as a company under the Corporations Law of this jurisdiction; and
(v)
the transfer date as the date of registration.
Note: For the evidentiary value of a certificate of registration, see subsection 1274(7A).
(2)
If:
(a)
the company is registered with a name that does not include “Limited” or “Proprietary Limited” (as the type of company requires), or an acceptable abbreviation; and
(b)
the company is not exempt from the requirement to use that word or those words in its name by or under section 150 or 151;
ASIC may change the company’s name so that it includes the required words by altering the details of the company’s registration to reflect that change.
Note: For acceptable abbreviations see section 149.
(3)
Subsections 1274(2) and (5) apply to the record of the company’s registration referred to in paragraph (1)(b) as if they were a document lodged with ASIC.

Registration of registered bodies

(1)
If a registered body becomes registered as a company under clause 3, it ceases to be a registered body. ASIC must remove the body’s name from the appropriate register kept for the purposes of Division 1 or 2 of Part 5B.2.
(2)
ASIC may keep any of the documents relating to the company that were lodged because the company used to be a registered body.

Division 2—The consequences of the transfer

Subdivision A—General

Effect of registration under clause 3

General effect of registration
(1)
Registration of a transferring financial institution of this jurisdiction as a company under clause 3 does not:
(a)
create a new legal entity; or
(b)
affect the institution’s existing property, rights or obligations (except as against the members in their capacity as members); or
(c)
render defective any legal proceedings by or against the institution or its members.
Members, officers, constitution and registered office
(2)
On registration of a transferring financial institution of this jurisdiction as a company under clause 3:
(a)
each person who is a member of the institution immediately before the transfer date becomes a member of the company; and
(b)
each person who was a director of the institution immediately before the transfer date becomes a director of the company; and
(c)
each person who was a secretary of the institution immediately before the transfer date becomes a secretary of the company; and
(d)
the institution’s rules, as in force immediately before the transfer date, become the company’s constitution; and
(e)
the institution’s registered office under the previous governing Code immediately before the transfer date becomes the company’s registered office for the purposes of this Law.
Health benefits funds rules
(3)
The institution’s rules referred to in paragraph (2)(d) do not include rules within the meaning of the National Health Act 1953.
Note: These latter rules relate to the operation of health benefits funds.
Replaceable rules
(4)
The replaceable rules (as described in section 135) do not apply to a company registered under clause 3, despite section 135, unless the company repeals its constitution.
10
Provisions applying to company limited by shares and by guarantee
Section 1416 applies to a company that is taken under clause 3 to be registered as a company limited by shares and by guarantee.
11
Transferring financial institution under external administration
(1)
If, immediately before the transfer date, provisions of Chapter 5 applied to:
(a)
a compromise or arrangement between a transferring financial institution of this jurisdiction and its creditors; or
(b)
a reconstruction of a transferring financial institution of this jurisdiction; or
(c)
a receiver or other controller of property of a transferring financial institution of this jurisdiction; or
(d)
the winding‑up or dissolution of a transferring financial institution of this jurisdiction;
because of Part 9 of the Financial Institutions Code, or Part 9 of the Friendly Societies Code, of this jurisdiction, those provisions of Chapter 5 continue to apply to that matter after the transfer date (but without any of the modifications made by the Code or the regulations made under the Code).
(2)
Without limiting the generality of subclause (1), a matter referred to in paragraph (1)(a), (b) or (d) includes an application or other step preliminary to the matter.
(3)
Subclause (1) does not limit the regulations that may be made under clause 28 or 39.
(4)
Any act done before the transfer date under or for the purposes of the provisions of Chapter 5 as applied by the Code has effect as if it had been done under or for the purposes of Chapter 5 as it applies after the transfer date.
(5)
If, before the transfer date, a liquidator of a transferring financial institution had been appointed under:
(a)
section 341 of the Financial Institutions Code of this jurisdiction; or
(b)
section 402 of the Friendly Societies Code of this jurisdiction;
the institution may be wound up in accordance with the provisions of Chapter 5.
(6)
For the avoidance of doubt, if, before the transfer date, the SSA for a transferring financial institution of this jurisdiction had given a certificate under:
(a)
section 341 of the Financial Institutions Code of this jurisdiction; or
(b)
section 402 of the Friendly Societies Code of this jurisdiction;
but had not yet appointed a liquidator of the institution, neither the SSA nor ASIC may appoint a liquidator of the institution on the basis of the certificate.

Subdivision B—Membership

12
Institution becoming a company limited by shares
(1)
If a transferring financial institution of this jurisdiction is taken to be registered as a company limited by shares under clause 3, the following apply:
(a)
any shares in the institution on issue immediately before the transfer date (other than withdrawable shares) become shares of the company
(b)
any withdrawable shares of the institution on issue immediately before the transfer date become redeemable preference shares of the company
(c)
in the case of a building society—each person who was a member of the society immediately before the transfer date, other than by virtue of only holding shares in the society, is taken to have been issued with a membership share on the transfer date
(d)
in any case other than that of a building society—any person:
(i)
who was a member of the institution immediately before the transfer date; and
(ii)
who did not hold any shares in the institution;
is taken to have been issued with a membership share on the transfer date.
(2)
If a person who is taken to have been issued with a membership share is a joint member, they hold the membership share jointly with the other member or members of the joint membership. This is so, even if the other member, or another member, held shares in the institution immediately before the transfer date. However, the joint membership does not have any more votes because of the membership share or shares than it had immediately before the transfer date.
(3)
In this Schedule:
building society means a transferring financial institution authorised under the Financial Institutions Code of its jurisdiction to operate as a building society immediately before the transfer date.
membership share means a share in a company that was a transferring financial institution:
(a)
that is taken to have been issued under this clause; and
(b)
that carries the rights and obligations that were conferred or imposed on the person in a capacity other than that of shareholder, by:
(i)
the institution’s rules (as in force immediately before the transfer date); and
(ii)
the previous governing Code; and
(c)
on which no amount is paid; and
(d)
on which no amount is unpaid; and
(e)
that is not:
(i)
transferable or transmissible; or
(ii)
capable of devolution by will or by operation of law; and
(f)
that can be cancelled as set out in subclause (4).
(4)
A membership share can be cancelled at the option of the holder or the company in the circumstances (if any):
(a)
set out in the company’s constitution; or
(b)
in which the member who holds the share could have had their membership of the institution cancelled immediately before the transfer date.
Part 2J.1 does not apply to the cancellation of a membership share.
13
Institution becoming a company limited by guarantee
(1)
If a transferring financial institution of this jurisdiction is taken to be registered as a company limited by guarantee under clause 3, the following apply:
(a)
each person who is a member of the institution immediately before the transfer date is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company)
(b)
each person who becomes a member of the company after the transfer date and before the amount of the relevant guarantee is determined is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company).
(2)
If a person who is taken to have given a guarantee by subclause (1) is a joint member, they are taken to have given the guarantee jointly with the other member or members of the joint membership. However, the joint membership does not have any more votes because of giving the guarantee or guarantees than it had immediately before the transfer date.
14
Institution becoming a company limited by shares and guarantee
(1)
If a transferring financial institution of this jurisdiction is taken to be registered as a company limited by shares and guarantee under clause 3, the following apply:
(a)
each person who is a member of the institution immediately before the transfer date is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company)
(b)
each person who becomes a member of the company after the transfer date and before the amount of the relevant guarantee is determined is taken to have given a guarantee (but only for the purpose of determining whether the person is a member of the company)
(c)
any shares in the institution on issue immediately before the transfer date (other than withdrawable shares) become shares of the company

(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 State or Territory service up to the agreed date, as if those benefits had accrued in respect of the person’s position as an APRA employee. For this purpose, the person’s State or Territory service is:
(a)
the person’s service as a State or Territory employee; and
(b)
the person’s other service (if any) that, immediately before the person becoming an APRA employee, counted as service under the terms of that person’s employment as a State or Territory 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 agreed date, as a State or Territory employee.

Statement of accrued benefits

(1) A transfer agreement may determine that APRA is to be given a statement of the benefits to which a person who becomes an APRA employee as mentioned in item 2 has an accrued entitlement in respect of his or her position as a State or Territory employee.
(2) In any proceedings relating to subitem 3(2), the statement is prima facie evidence of the matters set out in the statement.
(3) Item 2 has effect in relation to the person even if the statement is not given as required.

Division 3—Transfer of assets and liabilities

Transfer of assets

(1) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:
(a)
specified assets vest in APRA, or in ASIC, without any conveyance, transfer or assignment;
(b)
specified instruments in relation to specified assets continue to have effect after the assets vest in APRA, or in ASIC, as if specified references in the instruments were references to APRA, or to ASIC, as the case requires;
(c)
APRA or ASIC becomes the previous owner’s successor in law in relation to specified assets immediately after the assets vest in APRA, or in ASIC.
Note: Assets or instruments may be specified by description, by inclusion in a specified class or in some other way.
(2) The agreement has effect accordingly, to the extent that it is within the Commonwealth’s legislative power to give the agreement that effect.
(3) This item does not prevent assets being transferred to APRA or ASIC otherwise than in accordance with a transfer agreement.

(4) In this item:

assets includes records.

Transfer of liabilities

(1) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:
(a)
specified liabilities vest in APRA, or in ASIC;
(b)
specified instruments in relation to specified liabilities continue to have effect after the liabilities vest in APRA, or in ASIC, as if specified references in the instruments were references to APRA, or to ASIC, as the case requires;
(c)
APRA or ASIC becomes the previously liable person’s successor in law in relation to specified liabilities immediately after the liabilities vest in APRA, or in ASIC.
Note: Liabilities or instruments may be specified by description, by inclusion in a specified class or in some other way.
(2) The agreement has effect accordingly, to the extent that it is within the Commonwealth’s legislative power to give the agreement that effect.
(3) This item does not prevent liabilities being transferred to APRA or ASIC otherwise than in accordance with a transfer agreement.
Division 4—Transitional provisions relating to operation of the Banking Act 1959
7
Certain bodies taken to have authorities to carry on banking business

(1) This item applies to the following bodies:

(a)
all bodies that were FIC bodies immediately before the transfer date;
(b)
The Cairns Cooperative Weekly Penny Savings Bank Limited (CCWPSBL), but only if a determination under subitem (2) is in force immediately before the transfer date.
Note: The Cairns Cooperative Weekly Penny Savings Bank Limited is a body incorporated under the Financial Intermediaries Act 1996 of Queensland.
(2) APRA may, in writing, determine that this item applies to CCWPSBL, but only if the Treasurer and the Queensland Minister responsible for the administration of the Financial Intermediaries Act 1996 of Queensland have agreed that CCWPSBL should be covered by the Banking Act 1959 from the transfer date.
(3) On the transfer date, a body to which this item applies is taken to have been granted an authority under subsection 9(3) of the Banking Act 1959.
(4) APRA may, in writing, determine conditions to which the authority is subject. The determination has effect accordingly.
(5) The authority may be dealt with under the Banking Act 1959 as if it had actually been granted under subsection 9(3) of that Act.
(6) Conditions determined under subitem (4) may be dealt with under the Banking Act 1959 as if they were imposed under subsection 9(4) of that Act.
(7) Subsection 9(7) of the Banking Act 1959 does not apply to:
(a)
the grant of an authority that is taken to have occurred under subitem (3); or
(b)
the imposition of conditions on that authority under subitem (4).
(8) APRA must give the body written notice of the following:
(a)
the fact that the body is taken, by subitem (3), to have been granted an authority under subsection 9(3) of the Banking Act 1959; and
(b)
the determination under subitem (4) of conditions to which the authority is subject.
(9) APRA may also give notice of a matter referred to in paragraph (8)(a) or (b) in such other way as APRA considers appropriate.
8
Bodies taken to have consent for use of certain expressions
(1) A body that, immediately before the transfer date:
(a)
was a society, services corporation or association as defined in section 3 of a Financial Institutions Code; and
(b)
was trading or carrying on business (within the meaning of section 144 of that Code) under a name or title of which words, abbreviations or symbols covered by paragraph 144(2)(a) of that Code formed part;
is taken, on the transfer date, to have been granted a consent under section 66 of the Banking Act 1959 covering the body trading or carrying on business under that name or title. The consent may be dealt with under that Act as if it had actually been granted under section 66 of that Act.
(2) An exemption in force under subsection 144(4) of a Financial Institutions Code immediately before the transfer date continues to have effect from that date, and may be dealt with, as if it were a consent under section 66 of the Banking Act 1959. Any conditions to which the exemption was subject immediately before the transfer date are to be taken, from that date, to be, and may be dealt with as if they were, conditions applying under section 66 of the Banking Act 1959.

Unclaimed money

(1) This item applies to each body that is taken by subitem 7(3) to have been granted an authority under subsection 9(3) of the Banking Act 1959.
(2) An amount of money in respect of which notification action has been taken before the transfer date by a body to which this item applies under an unclaimed money law is not unclaimed moneys for the purposes of section 69 of the Banking Act 1959.
(3) For the avoidance of doubt, it is declared that, subject to subitem (2), an amount of money that, on the transfer date, satisfies the description of unclaimed moneys in section 69 of the Banking Act 1959 is unclaimed moneys for the purposes of that section even though, for any reason, the amount was not, immediately before that date, unclaimed money, or unclaimed moneys, within the meaning of an unclaimed money law.
(4) If, but for this item, a body to which this item applies would be required to deliver a Commonwealth unclaimed money statement on or before the 31 March next following the transfer date, then:
(a)
the body may, but is taken not to be required to, deliver a Commonwealth unclaimed money statement on or before that 31 March; and
(b)
if the body does not deliver a Commonwealth unclaimed money statement on or before that 31 March—the amounts that would have been included in that statement must (if they are still unclaimed money) be included in the next Commonwealth unclaimed money statement delivered by the body.
(5) The Treasurer, or an authorized officer (within the meaning of section 69 of the Banking Act 1959), may, in relation to a specified body to which this item applies, determine in writing that subsection 69(5) of the Banking Act 1959 has effect in relation to the first Commonwealth unclaimed money statement delivered by the body after the transfer date as if it required the amount shown in the statement to be paid to the Commonwealth:
(a)
on a specified date or at the end of a specified period; or
(b)
in accordance with a specified scheme for payment by instalments.
Note: A body may be specified by name, by inclusion in a specified class or in some other way.
(6) A person must not, under subitem (5), make a determination that would result in an amount being required to be paid to the Commonwealth more than 5 years after the date on which the amount would otherwise have had to be paid to the Commonwealth.
(7) A determination under subitem (5) has effect accordingly.

(8) In this item:

Commonwealth unclaimed money statement means a statement under subsection 69(3) of the Banking Act 1959.
notification action means:
(a)
in relation to the unclaimed money law of Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory or the Northern Territory—enter, or enter particulars of, unclaimed money, or unclaimed moneys, (within the meaning of that law) in a register in accordance with that law; or
(b)
in relation to the unclaimed money law of New South Wales—lodge a return with the Chief Commissioner (within the meaning of that law) relating to unclaimed money (within the meaning of that law) in accordance with that law; or
(c)
in relation to the unclaimed money law of Western Australia—notify the Treasurer of particulars of unclaimed money (within the meaning of that law) in accordance with that law.
unclaimed money law means:
(a)
the Unclaimed Money Act 1995 of New South Wales;
(b)
the Unclaimed Moneys Act 1962 of Victoria;
(c)
Part 8 of the Public Trustee Act 1978 of Queensland;
(d)
the Unclaimed Money Act 1990 of Western Australia;
(e)
the Unclaimed Moneys Act 1891 of South Australia;
(f)
the Unclaimed Moneys Act 1918 of Tasmania;
(g)
the Unclaimed Moneys Act 1950 of the Australian Capital Territory;
(h)
the Companies (Unclaimed Assets and Moneys) Act of the Northern Territory.
Note: For the transitional provisions relating to the operation of the Financial Sector (Shareholdings) Act 1998, see the amendment made by item 45 of Schedule 7 to this Act.
Division 5—Transitional provisions relating to operation of the Life Insurance Act 1995

Definitions

In this Division:
amended Act means the Life Insurance Act 1995 as in force on and after the transfer date.
eligible benefit fund means a fund:
(a)
that is, immediately before the transfer date, a benefit fund for the purposes of any of the Friendly Societies Codes; and
(b)
in relation to which one of the following subparagraphs applies:
(i)
an approval under section 98 of that Code was in force in relation to the fund immediately before the transfer date;
(ii)
because of section 483 of that Code, the fund was deemed to have been established as a benefit fund under that Code; and
(c)
that does not relate to health insurance business.
existing benefit fund rules means rules applying to an eligible benefit fund immediately before the transfer date.
health insurance business has the same meaning as in section 67 of the National Health Act 1953.
old Act means the Life Insurance Act 1995 as in force immediately before the transfer date.
transferring friendly society means a company that is taken, by subitem 11(1), to have been granted registration under section 21 of the amended Act.

Companies taken to be registered etc.

(1) A company (within the meaning of the amended Act) in relation to which all the following conditions are satisfied is taken, on the transfer date, to have been granted registration under section 21 of the amended Act:
(a)
immediately before the transfer date, the company was a friendly society;
(b)
the company carried on business before the transfer date through one or more eligible benefit funds;
(c)
the company was not in winding up immediately before the transfer date;
(d)
the company is specified in regulations for the purposes of this item.
For the purposes of paragraph (c), a company was in winding up immediately before the transfer date if, at that time, an appointment of a liquidator of the company was in force in accordance with Part 9 of the Friendly Societies Code of a State or Territory.
Note 1: A company may be specified by name, by inclusion in a specified class or in some other way.
Note 2: If the company was in winding up immediately before the transfer date, the winding up will continue in accordance with Schedule 4 to the Corporations Law (see in particular clause 11 of that Schedule).
(2) APRA must, as soon as practicable after the transfer date, issue to the company a certificate under subsection 21(5) of the amended Act.
(3) The registration may be dealt with under the amended Act as if it had actually been granted under section 21 of that Act.
(4) The regulations may provide for the company to cease to be registered. Regulations for this purpose have effect in addition to the provisions in sections 26 and 27 of the amended Act about cancellation of a company’s registration.
(5) If, immediately before the transfer date, the company carried on business:
(a)
that was:
(i)
insurance business, other than health insurance business or business relating to loss of, or damage to, property; or
(ii)
annuity business; and
(b)
that, apart from this item, would not be life insurance business (within the meaning of the amended Act);
APRA is taken, on the transfer date, to have made a declaration under section 12A of the amended Act that the business is to be treated as if it were life insurance business.
(6) If, immediately before the transfer date, the company carried on business:
(a)
to which section 12B of the amended Act would have applied if it had been in force then; and
(b)
that, apart from this item, would not be life insurance business (within the meaning of the amended Act);
APRA is taken, on the transfer date, to have made a declaration under section 12B of the amended Act that the business is to be treated as if it were life insurance business.
(7) The eligible benefit funds of the company are taken to be benefit funds established by the company in accordance with the requirements of the amended Act (as it applies subject to Part 2A of that Act).
(8) The existing benefit fund rules for the eligible benefit funds of the company are taken, on the transfer date, to have been approved under section 16L of the amended Act and to have come into force under section 16N of the amended Act on that date. This approval has effect subject to subitem (10).
(9) A provision of the existing benefit fund rules as so taken to be approved is not effective to the extent that the provision is inconsistent with:
(a)
the amended Act; or
(b)
any instrument made under the amended Act that is covered by the definition of this Act in the Schedule to the amended Act.
(10) If the existing benefit fund rules for an eligible benefit fund of the company are taken to have an approval by subitem (8), APRA may determine, in writing, that the approval ceases to have effect if:
(a)
the rules are inconsistent as mentioned in subitem (9); and
(b)
APRA considers that the inconsistency is contrary to the interests of any of the following persons:
(i)
owners of policies referable to the benefit fund;
(ii)
prospective owners of policies referable to the benefit fund.
A determination under this subitem can only be made during the period beginning on the day that is 18 months after the transfer date and ending on the day that is 30 months after the transfer date.
(11) If APRA makes a determination under subitem (10) in relation to an approval, the approval that those rules are taken to have by subitem (8) ceases to have effect on the day the determination is made.
(12) A reference in section 236 of the amended Act to a reviewable decision includes a reference to a decision to make a determination under subitem (10).
(13) Subject to subsection 77(6) of the amended Act, for the purposes of the amended Act, the financial year of the company is the period that, immediately before the transfer date, was the financial year of the company for the purposes of the Friendly Societies Code under which the company was then registered.
(14) APRA may give notice of any of the following matters in such way as APRA considers appropriate:
(a)
the fact that a company is taken, by subitem (1), to have been granted registration under section 21 of the amended Act;
(b)
the fact that APRA is taken, by subitem (5), to have made a declaration under section 12A of the amended Act in relation to business carried on by a company;
(c)
the fact that APRA is taken, by subitem (6), to have made a declaration under section 12B of the amended Act in relation to business carried on by a company;
(d)
the fact that existing benefit fund rules are taken, by subitem (8), to have been approved under section 16L of the amended Act;
(e)
that fact that an approval referred to in paragraph (d) ceases to have effect because of subitem (11).
12
Transitional provision relating to assignment of interests in benefit funds
If:
(a)
before the transfer date, an entitlement to benefits in a benefit fund of a friendly society was assigned in accordance with section 124 of any of the Friendly Societies Codes; and
(b)
that benefit fund is an eligible benefit fund; and
(c)
that friendly society is a transferring friendly society;
that assignment is taken, for the purposes of the amended Act, to have been made in accordance with subsection 200(2) of the amended Act.
13
Transitional provision relating to registration of policies
Nothing in section 227 of the amended Act applies to a policy issued before the transfer date that was not a life policy for the purposes of the old Act when it was issued.
14
Continued effect of declarations under section 12 of the old Act
(1) A declaration in force immediately before the transfer date for the purposes of paragraph 12(2)(a) of the old Act continues to have effect on and after the transfer date as if it were a declaration under subsection 12(2) of the amended Act.
(2) A declaration in force immediately before the transfer date for the purposes of paragraph 12(2)(b) of the old Act continues to have effect on and after the transfer date as if it were a declaration under subsection 12A(1) of the amended Act.

Transitional provisions relating to auditors

(1) An approval of a person that is in force under subsection 85(1) of the old Act immediately before the transfer date continues to have effect on and after the transfer date as if it were an approval of the person under paragraphs 85(1)(a) and (b) of the amended Act.
(2) If an appointment (including an appointment that is taken to have been made) of a person as an auditor of a friendly society is in force under any of the Friendly Societies Codes immediately before the transfer date and that friendly society is a transferring friendly society, the person is taken, on the transfer date:
(a)
to have been granted an approval under paragraph 85(1)(b) of the amended Act; and
(b)
to have been appointed as auditor of the transferring friendly society in accordance with section 84 of the amended Act.
Note: For appointments that are taken to have been made, see in particular subsections 340(6) and (7) of the various Friendly Societies Codes (dealing with appointment of firms).
(3) At any time while 2 or more persons are taken by subitem (2) to have been appointed as auditors of the same transferring friendly society, the amended Act applies in relation to the transferring friendly society as if any reference to the auditor, or the approved auditor, of a life company were instead a reference to any of the persons so taken to have been appointed.

(4) An approval or appointment that is taken by subitem (2) to have been granted or made may be dealt with under the amended Act:
(a)
in the case of an approval—as if it had actually been granted under paragraph 85(1)(b) of the amended Act; or
(b)
in the case of an appointment—as if it actually were an appointment in accordance with section 84 of the amended Act.
(5) Subsection 87(1) of the amended Act does not apply to an appointment that is taken by paragraph (2)(b) to have been made.

Transitional provisions relating to actuaries

(1) If an appointment of a person as an actuary to a friendly society is in force under any of the Friendly Societies Codes immediately before the transfer date and that friendly society is a transferring friendly society, the person is taken, on the transfer date:
(a)
to have been granted an approval under subsection 93(6) of the amended Act; and
(b)
to have been appointed as actuary of the transferring friendly society in accordance with section 93 of the amended Act.
(2) An approval or appointment that is taken by subitem (1) to have been granted or made may be dealt with under the amended Act:
(a)
in the case of an approval—as if it had actually been granted under subsection 93(6) of the amended Act; and
(b)
in the case of an appointment—as if it actually were an appointment in accordance with section 93 of the amended Act.
(3) Subsection 95(1) of the amended Act does not apply to an appointment that is taken by paragraph (1)(b) to have been made.

Unclaimed money

(1) An amount of money in respect of which notification action has been taken before the transfer date under an unclaimed money law is not an amount of unclaimed money for the purposes of section 216 of the amended Act.
(2) For the avoidance of doubt, it is declared that, subject to subitem (1), an amount of money that, on the transfer date, satisfies the description of unclaimed money in section 216 of the amended Act is unclaimed money for the purposes of that section even though, for any reason, the amount was not, immediately before the transfer date, unclaimed money, or unclaimed moneys, within the meaning of an unclaimed money law.
(3) If, but for this item, a transferring friendly society would be required to deliver a Commonwealth unclaimed money statement on or before the 31 March next following the transfer date, then:
(a)
the transferring friendly society may, but is taken not to be required to, deliver a Commonwealth unclaimed money statement on or before that 31 March; and
(b)
if the transferring friendly society does not deliver a Commonwealth unclaimed money statement on or before that 31 March—the amounts that would have been included in that statement must (if they are still unclaimed money) be included in the next Commonwealth unclaimed money statement delivered by the friendly society.
(4) ASIC may, in relation to a specified transferring friendly society, determine in writing that subsection 216(3) of the amended Act has effect in relation to the first Commonwealth unclaimed money statement delivered by the transferring friendly society after the transfer date as if it required the amount worked out under subsection 216(6) of that Act to be paid to the Commonwealth:
(a)
on a specified date or at the end of a specified period; or
(b)
in accordance with a specified scheme for payment by instalments.
Note: A transferring friendly society may be specified by name, by inclusion in a specified class or in some other way.
(5) ASIC must not, under subitem (4), make a determination that would result in an amount being required to be paid to the Commonwealth more than 5 years after the date on which the amount would otherwise have had to be paid to the Commonwealth.
(6) A determination under subitem (4) has effect accordingly.

(7) In this item:

Commonwealth unclaimed money statement means a statement under subsection 216(1) of the amended Act.
notification action means:
(a)
in relation to the unclaimed money law of Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory or the Northern Territory—enter, or enter particulars of, unclaimed money, or unclaimed moneys, (within the meaning of that law) in a register in accordance with that law; or
(b)
in relation to the unclaimed money law of New South Wales—lodge a return with the Chief Commissioner (within the meaning of that law) relating to unclaimed money (within the meaning of that law) in accordance with that law; or
(c)
in relation to the unclaimed money law of Western Australia—notify the Treasurer of particulars of unclaimed money (within the meaning of that law) in accordance with that law.
unclaimed money law means:
(a)
the Unclaimed Money Act 1995 of New South Wales;
(b)
the Unclaimed Moneys Act 1962 of Victoria;
(c)
Part 8 of the Public Trustee Act 1978 of Queensland;
(d)
the Unclaimed Money Act 1990 of Western Australia
(e)
the Unclaimed Moneys Act 1891 of South Australia;
(f)
the Unclaimed Moneys Act 1918 of Tasmania;
(g)
the Unclaimed Moneys Act 1950 of the Australian Capital Territory;
(h)
the Companies (Unclaimed Assets and Moneys) Act of the Northern Territory.
18
Effect of amendments etc. on treatment of business that is not currently eligible insurance business for the purposes of Division 8A of Part III of the Income Tax Assessment Act 1936
If, immediately before the transfer date, a kind of business was not eligible insurance business for the purposes of Division 8A of Part III of the Income Tax Assessment Act 1936, then business of that kind that is carried on after the transfer date is not to be taken to be eligible insurance business for the purposes of that Division merely because of all or any of the following:
(a)
the amendments made by Schedule 4; or
(b)
anything in or done under the amended Act; or
(c)
the provisions of this Part.

Division 6—Other transitional provisions

19
Transitional provision relating to completion of transfers of engagements and mergers under State and Territory laws
(1) This item applies if a law of a State or Territory (a State or Territory transitional law) provides for a transfer of engagements, or a merger, commenced before the transfer date under the Financial Institutions Code or the Friendly Societies Code of the State or Territory to be completed, or to be given effect, after the transfer date in accordance with that law.
(2) A transfer of engagements or a merger to which a State or Territory transitional law applies may be completed, or be given effect, after the transfer date in accordance with that law despite anything in the Banking Act 1959, the Life Insurance Act 1995 or any other law of the Commonwealth prescribed by the regulations for the purposes of this subitem.
(3) Regulations for the purposes of this subitem may deal with how specified laws of the Commonwealth apply in relation to the situation resulting from a transfer of engagements, or a merger, that is completed or given effect in accordance with a State or Territory transitional law.
Note 1: For example, if the resulting situation would otherwise constitute a breach of a particular law of the Commonwealth, regulations may provide that the situation is taken not to constitute a breach of that law (either for a limited period or indefinitely).
Note 2: This subitem has effect in addition to section 49 of the Financial Sector (Shareholdings) Act 1998.
(4) For the purposes of this item, a transfer of engagements was commenced before the transfer date if, before that date:
1. (a)
  one of the following conditions was satisfied in relation to each transferring body involved:
  1. (i)
    the transfer was approved by a special resolution of the body, in accordance with the Financial Institutions Code or the Friendly Societies Code of a State or Territory;
  2. (ii)
    the relevant SSA made a determination, under the Financial Institutions Code or the Friendly Societies Code of a State or Territory, that the transfer may be approved by the board of the body; or
2. (b)
  the relevant SSA gave a direction, under the Financial Institutions Code or the Friendly Societies Code of a State or Territory, requiring the transfer.
(5) For the purposes of this item, a merger was commenced before the transfer date if, before that date, one of the following conditions was satisfied in relation to each transferring body involved:
1. (a)
  the merger was approved by a special resolution of the body, in accordance with the Financial Institutions Code or the Friendly Societies Code of a State or Territory;
2. (b)
  the relevant SSA made a determination, under the Financial Institutions Code or the Friendly Societies Code of a State or Territory, that the merger may be approved by the board of the body.
20
Treatment of determinations under section 29 of the Social Security Act 1991
A determination in force immediately before the transfer date for the purposes of section 29 of the Social Security Act 1991 as then in force is to be taken, on and after the transfer date, to be an approval for the purposes of section 29 of that Act as amended by this Act.

Part 2—Transitional provisions relating to other amendments
21
Treatment of approvals of banks and authorisations of persons under subsection 4(1) of the High Court of Australia Act 1979
An approval of a bank, or an authorisation of a person, that is in force immediately before the commencement of item 21 of Schedule 6 for the purposes of the definition of approved bank in subsection 4(1) of the High Court of Australia Act 1979 as then in force is to be taken, after that commencement, to be an approval of the bank or an authorisation of the person for the purposes of the definition of ADI in subsection 4(1) of that Act as amended by this Act.

Part 3—Regulations

22Regulations may deal with transitional, saving or application matters
(1) The regulations may deal with matters of a transitional, saving or application nature relating to:
(a)
the transition from the application of provisions of the replaced legislation to the application of provisions of the Banking Act 1959, the Life Insurance Act 1995, the Financial Sector (Transfers of Business) Act 1999, the Financial Sector (Shareholdings) Act 1998 or the Australian Prudential Regulation Authority Act 1998; or
(b)
the transition, for The Cairns Cooperative Weekly Penny Savings Bank Limited, from the application of provisions of the Financial Intermediaries Act 1996 of Queensland to the application of provisions of any of the Acts referred to in paragraph (a); or
(c)
the amendments and repeals made by the Schedules to this Act.
(2) Without limiting subitem (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a)
by applying (with or without modifications) to the matter:
(i)
provisions of a law of the Commonwealth, or of a State or Territory; or
(ii)
provisions of a repealed or amended law of the Commonwealth, or of a State or Territory, in the form that those provisions took before the repeal or amendment; or
(iii)
a combination of provisions referred to in subparagraphs (i) and (ii);
(b)
by otherwise specifying rules for dealing with the matter;
(c)
by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
(3) Without limiting subitems (1) and (2), the regulations may provide for the continued effect, for the purposes of a provision of a law of the Commonwealth, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a law of a State or Territory. In the case of an instrument or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.
(4) Without limiting subitem (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a)
the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b)
the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c)
any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
(5) Despite subsection 48(2) of the Acts Interpretation Act 1901, regulations for the purposes of this item:
(a)
may be expressed to take effect from a date before the regulations are notified in the Gazette; and
(b)
may provide for a determination of a kind referred to in subitem (4) to take effect from a date before the determination is made (including a date before the regulations are notified in the Gazette).
(6) In this item, a reference to a law, whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.

(7) In this item:

replaced legislation means:
(a)
the AFIC Codes; and
(b)
the Financial Institutions Codes; and
(c)
the Friendly Societies Codes; and
(d)
the Australian Financial Institutions Commission Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 21 of the Australian Financial Institutions Commission Act 1992 of Queensland; and
(e)
the Financial Institutions (Queensland) Act 1992 of Queensland, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in section 30 of the Financial Institutions (Queensland) Act 1992 of Queensland; and
(f)
the Friendly Societies (Victoria) Act 1996 of Victoria, and any Act of another State or of a Territory that provides for the application, as a law of the State or Territory, of the Code set out in the Schedule to the Friendly Societies (Victoria) Act 1996 of Victoria; and
(g)
the Friendly Societies (Western Australia) Act 1999; and
(h)
any other law of a State or Territory prescribed by the regulations for the purposes of this definition.

Power to make regulations

The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters required or permitted by this Act to be prescribed.