Banking exemption No. 1 of 2016

Administered by Department of the Treasury

Legislation au F2016L01402 Not in force Legislative Instrument

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Banking exemption No. 1 of 2016

EXPLANATORY STATEMENT

Prepared by the Australian Prudential Regulation Authority (APRA)

Banking Act 1959, section 11

Under subsection 11(1) of the Banking Act 1959 (the Act), APRA may, in writing, determine that any or all of the provisions of the Act referred to in paragraphs 11(1)(a) to (e) do not apply to a person while the determination is in force.

 

On 31 August 2016, APRA made Banking exemption No. 1 of 2016 (the instrument), which replaces  Banking exemption No. 2 of 2015 (2016 Exemption).

 

The instrument commences on 1 January 2017.

 

  1.    Background

Under section 7 of the Act, it is an offence for a person who is not a body corporate to carry on banking business in Australia, except where there is a determination in force under section 11 of the Act that section 7 does not apply to the person. Under section 8 of the Act, it is an offence for a body corporate to carry on banking business in Australia if the body corporate is not an authorised deposit-taking institution or the Reserve Bank, except where there is a determination in force under section 11 of the Act that section 8 does not apply to the body corporate. 

 

The 2016 Exemption determined that the persons administering the RCDFs listed in Schedule 1 of that determination are exempt from the prohibitions in sections 7 and 8 of the Act from 1 January 2016 until 31 December 2016, provided that they comply with the conditions specified in Schedule 2 of that determination.

 

The 2016 Exemption will expire on 31 December 2016. The instrument continues the exemption in relation to RCDFs, but with revised conditions. APRA has consulted extensively on these conditions, commencing in 2013.

 

RCDFs are funds that have been set up to borrow and use money for religious and charitable purposes. While the business of such entities has traditionally fallen within the definition of ‘banking business’ under the Act, such entities have historically been exempt from the need to be authorised under the Act. The instrument is intended to allow RCDFs to continue to operate but under a new set of conditions that seek to reduce the likelihood that an investor in an RCDF might confuse such an investment with a deposit. These new conditions include:

  • retail products offered to retail investors to have a minimum term or call period of 31 days;
  • RCDFs will be allowed to release funds early where exceptional circumstances exist that warrant the early release;
  • certain transactional banking facilities such as Electronic Funds Transfer at Point of Sale (EFTPOS), BPAY facilities and Automatic Teller Machine (ATM) facilities must not be offered to retail investors; and
  • restrictions on use of certain words and expressions including ‘at-call’ and ‘deposit’.

2.      Purpose and operation of the instrument

The purpose of the instrument is to continue to exempt the administrators of RCDFs from the prohibitions in sections 7 and 8 of the Act.

3.      Consultation

APRA has consulted extensively on the new conditions. Consultation commenced in 2013, and APRA issued a final Response to Submissions paper in March 2016.

 

4.  Regulation Impact Statement

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is required for this legislative instrument.

5. Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

A Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is provided at Attachment A to this Explanatory Statement.

Attachment A

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Banking exemption No. 1 of 2016

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

Under section 7 of the Banking Act 1959 (Banking Act), it is an offence for a person who is not a body corporate to carry on banking business in Australia except where there is a determination in force that section 7 does not apply to the person. Under section 8 of the Banking Act, it is an offence for a body corporate to carry on banking business in Australia if the body corporate is not an authorised deposit-taking institution or the Reserve Bank, except where there is a determination in force that section 8 does not apply to the body corporate. 

This Legislative Instrument determines that sections 7 and 8 of the Banking Act do not apply to Religious Charitable Development Funds, subject to conditions relating to the facilities offered in connection with the financial products, and any advertising or marketing in connection with the financial products.  Religious Charitable Development Funds are funds formed for religious and charitable purposes and operated on a not-for-profit basis.

Human rights implications

APRA has assessed this Legislative Instrument and is of the view that it does not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  Accordingly, in APRA’s assessment, the instrument is compatible with human rights.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Overview

Banking exemption No. 1 of 2016 was enacted to continue the exemption of Religious Charitable Development Funds (RCDFs) from certain prohibitions in the Banking Act 1959. This exemption, issued by the Australian Prudential Regulation Authority (APRA), addresses the problem of ensuring that RCDFs, which are established for religious and charitable purposes and traditionally exempted from the Act, can continue to operate without being considered as authorised deposit-taking institutions. The exemption is intended to reduce the risk of investor confusion between RCDF investments and bank deposits by imposing specific conditions, such as minimum investment terms, restrictions on certain banking facilities, and limitations on the use of particular financial terms. The instrument was developed following extensive consultation commencing in 2013 and is designed to align with human rights as confirmed in a Statement of Compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

Banking exemption No. 1 of 2016, issued by the Australian Prudential Regulation Authority (APRA) under section 11 of the Banking Act 1959, exempts certain Religious Charitable Development Funds (RCDFs) from the prohibitions contained in sections 7 and 8 of the Banking Act, which generally restrict the carrying on of banking business to authorised deposit-taking institutions or the Reserve Bank. This exemption applies to the administrators of RCDFs who are exempt from these prohibitions while they comply with the specific conditions outlined in the instrument, such as minimum term requirements for retail products, restrictions on certain banking facilities like EFTPOS, BPAY, and ATM facilities, and limitations on the use of certain terms like ‘at-call’ and ‘deposit’. This exemption allows RCDFs, which are funds set up for religious and charitable purposes and operate on a not-for-profit basis, to continue their activities under the new conditions designed to mitigate the risk of investor confusion with typical banking deposits. The exemption is effective from 1 January 2017, replacing an earlier exemption that was set to expire on 31 December 2016, and is compatible with human rights as assessed by APRA.

Key Provisions

The Banking exemption No. 1 of 2016 (the instrument) amends the existing exemption for Religious Charitable Development Funds (RCDFs) by replacing Banking exemption No. 2 of 2015. Under section 11(1) of the Banking Act 1959, the Australian Prudential Regulation Authority (APRA) has the authority to determine that certain provisions of the Act do not apply to a person while the determination is in force. This instrument, which commences on 1 January 2017, continues to exempt administrators of RCDFs from the prohibitions in sections 7 and 8 of the Banking Act, which make it an offence for individuals or unauthorised corporations to conduct banking business in Australia. The obligations and requirements imposed by the instrument on the administrators of RCDFs include several conditions designed to reduce the likelihood of investor confusion between RCDF investments and traditional deposits. Firstly, retail products offered to investors must have a minimum term or call period of 31 days, ensuring that investments are not easily accessible like typical bank deposits. Secondly, while early release of funds is permitted in exceptional circumstances, it is subject to certain conditions. Thirdly, specific transactional banking facilities such as EFTPOS, BPAY, and ATM services must not be offered to retail investors, further distinguishing RCDFs from conventional banking products. Lastly, there are restrictions on the use of certain terms and expressions in advertising and marketing materials, such as 'at-call' and 'deposit', to prevent misleading representations. Breach of the conditions specified in the instrument can result in severe consequences. Although the instrument does not explicitly outline penalties, non-compliance with the Banking Act's provisions could lead to criminal charges under sections 7 and 8, which carry potential penalties including fines and imprisonment. APRA's determination under section 11 does not alter the serious nature of contravening the Act's prohibitions, as it only exempts from specific sections while the determination is in force, not from the overarching legal framework. Hence, administrators of RCDFs must ensure strict adherence to the conditions to maintain their exemption and avoid legal repercussions.

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