EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 169
Issued by authority of the Minister for Superannuation and Corporate Law
Australian Prudential Regulation Authority Act 1998
Australian Prudential Regulation Authority Amendment Regulations 2008 (No. 1)
Section 60 of the Australian Prudential Regulation Authority Act 1998 (the Act) provides that the Governor‑General may make regulations, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The proposed Regulations amend the Australian Prudential Regulation Authority Regulations 1998 (the Principal Regulations) to ensure that the Australian Prudential Regulation Authority (APRA) is able to give protected information or documents related to First Home Saver Accounts (FHSAs) business to the Commissioner of Taxation. The proposed Regulations also rectify a technical error in the Principal Regulations.
The Regulations amend paragraph 5(g) to ensure that APRA is able to share protected information or a protected document with the Commissioner of Taxation for the purposes of administering the First Home Saver Accounts Act 2008. APRA can already give protected information or a protected document to the Commissioner of Taxation for the purpose of administering the Retirement Savings Account Act 1997, the Superannuation Industry (Supervision) Act 1993 and the Superannuation (Excluded Funds) Taxation Act 1987. This amendment ensures the Commissioner of Taxation can receive information relevant to the performance of its functions and responsibilities in respect of FHSAs.
The Regulations also make a technical amendment to prescribe the Australian Royal Commission Act 1902 as a prudential regulation framework law under paragraph 56(1)(o) of the Act. The Australian Royal Commission Act 1902 was prescribed in the Principle Regulations under paragraph 56(1)(k) and this was incorrect. This amendment ensures that the Australian Royal Commission Act 1902 is prescribed under the correct paragraph but the effect of the regulation remains unchanged.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
These Regulations form part of a package of amendments relating to the introduction of the First Home Saver Accounts scheme. As part of consultation for the package of regulations, the Government has consulted industry representatives through a Technical Reference Group, the Australian Taxation Office and the Australian Prudential Regulation Authority in making these regulations.
Overview
The Australian Prudential Regulation Authority Amendment Regulations 2008 (No. 1) were enacted to address the need for the Australian Prudential Regulation Authority (APRA) to share protected information related to First Home Saver Accounts (FHSAs) with the Commissioner of Taxation. This was necessary to ensure that the Commissioner could effectively administer the First Home Saver Accounts Act 2008. Furthermore, the Regulations sought to correct a technical error in the Australian Prudential Regulation Authority Regulations 1998, specifically rectifying the incorrect prescription of the Australian Royal Commission Act 1902 under the wrong paragraph. These amendments were made under the authority of the Australian Prudential Regulation Authority Act 1998, with the policy objective of facilitating the seamless administration of tax-related functions concerning FHSAs and correcting legislative oversights to maintain regulatory integrity.
Scope and Application
The Australian Prudential Regulation Authority Amendment Regulations 2008 (No. 1) apply to the Australian Prudential Regulation Authority (APRA) and the Commissioner of Taxation, ensuring the former can provide protected information or documents related to First Home Saver Accounts (FHSAs) to the latter for administering the First Home Saver Accounts Act 2008. This regulatory adjustment is necessary to enhance the Commissioner's ability to perform their functions and responsibilities regarding FHSAs. The Regulations also correct a technical error in the Australian Prudential Regulation Authority Regulations 1998, ensuring the Australian Royal Commission Act 1902 is correctly prescribed under the appropriate paragraph of the Australian Prudential Regulation Authority Act 1998. These Regulations have a national reach, impacting financial institutions and entities subject to APRA's oversight across Australia. No specific exclusions, exemptions, or thresholds are outlined in the Regulations, which are a legislative instrument under the Legislative Instruments Act 2003.
Key Provisions
The Australian Prudential Regulation Authority Amendment Regulations 2008 (No. 1) contain several key provisions that are critical for the effective operation of financial regulation in Australia. Section 1 of these Regulations amends paragraph 5(g) of the Australian Prudential Regulation Authority Regulations 1998 (Principal Regulations). This amendment allows the Australian Prudential Regulation Authority (APRA) to share protected information or documents related to First Home Saver Accounts (FHSAs) with the Commissioner of Taxation. This is a significant change as it ensures that the Commissioner of Taxation can access information pertinent to the administration of the First Home Saver Accounts Act 2008, which is crucial for the enforcement of tax laws and compliance monitoring. Previously, APRA could share similar information for the administration of other acts such as the Retirement Savings Account Act 1997, the Superannuation Industry (Supervision) Act 1993, and the Superannuation (Excluded Funds) Taxation Act 1987, but the extension to FHSAs broadens the scope of information sharing.
The Regulations also impose specific obligations on APRA and the Commissioner of Taxation. APRA is now required to provide the Commissioner with any protected information or documents that pertain to FHSAs, ensuring that the Commissioner can perform their duties effectively. This includes information necessary for auditing, enforcing compliance, and ensuring that the tax system is not being circumvented through FHSAs. The Commissioner of Taxation, on the other hand, must use this information responsibly, in accordance with their statutory powers and duties, to maintain the integrity of the tax system.
Furthermore, the Regulations include a technical correction to ensure that the Australian Royal Commission Act 1902 is correctly identified as a prudential regulation framework law under the Act. This amendment rectifies an error in the Principal Regulations, where the Australian Royal Commission Act 1902 was incorrectly prescribed under a different paragraph. By correctly prescribing this act under paragraph 56(1)(o) of the Act, the Regulations maintain the intended regulatory framework without altering its practical effects.
In terms of consequences for non-compliance, the Regulations do not explicitly outline specific penalties for breaches. However, given that the Regulations form part of a legislative framework aimed at ensuring financial stability and regulatory compliance, any failure to adhere to the provisions could result in legal actions being taken against APRA or the Commissioner of Taxation for not fulfilling their statutory obligations. Such breaches might also lead to administrative penalties or legal disputes, depending on the nature and impact of the non-compliance.