Authority to carry on banking business
Banking Act 1959
I, Mark Adams, a delegate of APRA, under subsection 9(3) of the Banking Act 1959 (the Act), GRANT China Everbright Bank Co., Ltd ABN 69 322 403 457 (the ADI) authority to carry on banking business in Australia.
Under paragraph 9AA(1)(a) of the Act, I IMPOSE on this Authority the conditions specified in the Schedule.
This Authority commences on the date it is signed.
Dated: 20 December 2018
[Signed]
Mark Adams
Executive General Manager Specialised Institutions Division
Interpretation
In this Notice
APRA means the Australian Prudential Regulation Authority.
ADI is short for authorised deposit-taking institution and has the meaning given in subsection 5(1) of the Act.
banking business has the meaning given in subsection 5(1) of the Act.
Note 1 Under subsection 9AA(1) of the Act, APRA may at any time, by notice in writing given to an ADI, impose conditions or additional conditions or vary or revoke conditions imposed on its Authority to carry on banking business. The conditions must relate to prudential matters.
Note 2 Under subsection 9AB(1) of the Act, an ADI is guilty of an offence if it does or fails to do an act and doing or failing to do that act results in a contravention of a condition of the ADI’s Authority, and there is no determination in force under section 11 of the Act that subsection 9AB(1) does not apply to the ADI. The maximum penalty is 300 penalty units. Under subsection 9AB(2) of the Act, where an individual commits an offence against subsection 9AB(1) of the Act because of Part 2.4 of the Criminal Code, or commits an offence under Part 2.4 of the Criminal Code in relation to an offence against subsection 9AB(1) of the Act, the individual is punishable on conviction by a fine not exceeding 60 penalty units. By virtue of subsection 9AB(3) of the Act, an offence against subsection 9AB(1) is an offence of strict liability.
Note 3 The circumstances in which APRA may revoke an ADI’s Authority are set out in section 9A of the Act.
Note 4 Under subsection 9(3) of the Act, notice of this Authority must be provided to the ADI. Under subsection 9(4) of the Act, APRA must publish notice of this Authority in the Gazette and may cause notice of the Authority to be published in any other way it considers appropriate.
Note 5 Under subsection 9AA(6) of the Act, a decision to impose conditions on this Authority is a decision to which Part VI of the Act applies. If a person whose interests are affected is dissatisfied with that decision, the person may seek reconsideration of the decision by APRA in accordance with subsection 51B(1) of the Act. The request for reconsideration must be in writing, must state the reasons for the request, and must be given to APRA within 21 days after the decision first comes to the person’s notice or within such further period as APRA allows. If dissatisfied with APRA’s reconsidered decision confirming or varying the first decision, the person may, subject to the Administrative Appeals Act 1975, apply to the Administrative Appeals Tribunal for review of the reconsidered decision.
The address where written notice may be given to APRA is Level 12, 1 Martin Place, Sydney, NSW 2000.
Schedule – the conditions imposed on the Authority
1. The ADI, as a foreign ADI carrying on banking business in Australia, shall not accept deposits or other funds for amounts which are less than $250,000 from any source other than from:
(a) incorporated entities;
(b) persons or unincorporated entities that are not residents of Australia;
(c) its own employees; or
(d) persons or unincorporated entities with an initial balance with the foreign ADI of at least $250,000.
In this Schedule, foreign ADI has the meaning given in subsection 5(1) of the Act.
Overview
The Banking Act 1959, enacted by the Commonwealth Parliament, governs the authorisation and regulation of authorised deposit-taking institutions (ADIs) in Australia, including foreign ADIs. This legislation aims to ensure the prudential soundness and stability of the banking sector. The Act empowers the Australian Prudential Regulation Authority (APRA) to grant or impose conditions on the authority of ADIs to carry on banking business in Australia. The provided notice, issued by Mark Adams, a delegate of APRA, grants China Everbright Bank Co., Ltd, an authorised deposit-taking institution with an Australian Business Number (ABN) 69 322 403 457, the authority to carry on banking business in Australia, subject to the conditions specified in the attached Schedule. The primary policy objective is to maintain the prudential standards and stability of the Australian financial system.
Scope and Application
The Banking Act 1959 grants the Australian Prudential Regulation Authority (APRA) the authority to issue a banking licence to authorised deposit-taking institutions (ADIs) enabling them to carry on banking business in Australia. This legislation applies to foreign ADIs such as China Everbright Bank Co., Ltd, who are granted a licence to operate within Australia's jurisdiction. The Act outlines specific conditions under which foreign ADIs can conduct banking business, such as limitations on the acceptance of deposits or funds from certain sources, unless they meet specified criteria. The Act has a national jurisdictional reach as it operates under Commonwealth law. The authority granted by APRA can be varied, imposed with additional conditions, or revoked at any time in relation to prudential matters, as stipulated in the Act. Furthermore, the Act allows for the review of decisions made by APRA through the Administrative Appeals Tribunal, providing a legal recourse for entities affected by APRA’s decisions. This legislative framework ensures that foreign ADIs comply with the prudential standards set by APRA, safeguarding the stability of the Australian financial system.
Key Provisions
The main operative sections of the gazette, C2019G00062, grant China Everbright Bank Co., Ltd the authority to conduct banking business in Australia under the Banking Act 1959 (sections 9 and 9AA). The authority is granted by Mark Adams, a delegate of the Australian Prudential Regulation Authority (APRA), and is subject to specific conditions outlined in the attached schedule (section 9AA(1)). This authority becomes effective on the date it is signed, as stated in the gazette. The authority is also subject to the provisions that require APRA to notify the ADI of the authority (section 9(3)) and to publish notice of the authority in the Gazette or other appropriate media (section 9(4)).
The Act imposes several obligations on the parties it governs. For the ADI, China Everbright Bank Co., Ltd, the primary obligation is to adhere to the conditions imposed on its authority to carry on banking business, which include restrictions on the types of deposits and funds it can accept, as specified in the schedule attached to the gazette (Schedule, condition 1). These conditions are intended to ensure that the ADI operates in a manner that is consistent with prudential standards and regulatory requirements. For APRA, the obligations include the authority to impose, vary, or revoke conditions on the ADI’s authority, as well as the responsibility to publish notices of such changes (section 9AA(1)). APRA also has the authority to revoke the ADI’s authority to carry on banking business if certain conditions are met (section 9A).
The Banking Act 1959 provides for various offences and penalties for breaches of the conditions imposed on the ADI’s authority. An ADI is guilty of an offence if it contravenes a condition of its authority (section 9AB(1)). The maximum penalty for this offence is 300 penalty units. This offence is of strict liability, meaning that the ADI can be found guilty even if there was no intention to contravene the condition (subsection 9AB(3)). Additionally, if an individual commits an offence against section 9AB(1) due to Part 2.4 of the Criminal Code, or commits an offence under Part 2.4 of the Criminal Code in relation to an offence against section 9AB(1), the individual may be subject to a fine not exceeding 60 penalty units (subsection 9AB(2)). Dissatisfied parties may seek reconsideration of APRA’s decisions or apply to the Administrative Appeals Tribunal for review (subsection 9AA(6) and the Administrative Appeals Act 1975).