Transfer Rules No. 1 of 2015
EXPLANATORY STATEMENT
Prepared by the Australian Prudential Regulation Authority (APRA)
Financial Sector (Business Transfer and Group Restructure) Act 1999, section 46
Acts Interpretation Act 1901, section 33
Under subsection 46(1) of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (the Act), APRA has the power to make, by legislative instrument, rules prescribing all matters required or permitted by the Act to be prescribed by transfer rules. Subsection 33(3) of the Acts Interpretation Act 1901 confers power to revoke an instrument made under an enactment.
On 31 March 2014, APRA made Transfer Rules No.1 of 2015 (the 2015 Transfer Rules) which revokes Transfer Rules No.1 of 2004 (the 2004 Transfer Rules) made on 30 November 2004.
The 2015 Transfer Rules commences on the date it is registered on the Federal Register of Legislative Instruments (FRLI).
- Background
The Act provides for the statutory transfer of business between APRA-regulated entities. The 2004 Transfer Rules was made for the purposes of:
(a) subsection 10(2) of the Act, prescribing the form and content of an application for approval of a voluntary transfer of business; and
(b) paragraph 13(a) of the Act, prescribing certain ways in which a voluntary transfer may be adopted by or on behalf of a transferring body, a receiving body, or members of a transferring or receiving body.
Under subsection 50(1) of the Legislative Instruments Act 2003 (LIA), a legislative instrument registered after 1 January 2005 will sunset on the earlier of 1 April or 1 October, 10 years after the instrument was registered on the FRLI. The 2004 Transfer Rules was registered on 23 March 2005. The 2004 Transfer Rules were amended by Transfer Rules Variation Determination No. 1 of 2005 and Financial Sector (Business Transfer and Group Restructure) determination No. 1 of 2007. The amendments do not affect the operation of subsection 50(1) of the LIA, and the 2004 Transfer Rules would have sunsetted on 1 April 2015.
2. Purpose and operation of the instrument
The effective and efficient operation of the Act, in so far as it facilitates the voluntary transfer of business between APRA-regulated entities, depends on the existence of the 2004 Transfer Rules.
In light of the fact that the 2004 Transfer Rules were to sunset on 1 April 2015, the purpose of the 2015 Transfer Rules is to allow the rules that exist in the 2004 Transfer Rules to continue without change. APRA conducted an assessment of the effectiveness and efficiency of continuing the operation of the 2004 Transfer Rules and concluded that it was appropriate that they be remade without substantive amendment.
3. Consultation
The 2015 Transfer Rules does not differ in any substantive way from the 2004 Transfer Rules, the only changes being to update legislative references and remove transitional provisions that have been redundant for many years. The Transfer Rules 2015 does not impose any additional requirements nor does it remove requirements. Consequently, APRA did not consult externally in relation to Transfer Rules 2015.
4. Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not 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
Transfer Rules No. 1 of 2015
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
This Legislative Instrument revokes the 2004 Transfer Rules made under subsection 46(1) of the Act, and remakes the rules attached in the Schedule to the 2004 Transfer Rules unchanged.
This Legislative Instrument will be made for the purposes of prescribing the form and content of an application for approval of a voluntary transfer of business; and prescribing certain ways in which a voluntary transfer may be adopted by or on behalf of a transferring body, a receiving body, or members of a transferring or receiving body.
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.