EXPLANATORY STATEMENT
Prepared by the Chair of the Australian Prudential Regulation Authority
Determination that APRA staff members of a class are to be infringement officers
Superannuation Industry (Supervision) (Infringement Officers) Determination 2023
Purpose and operation of the instruments
Under subsection 223C(1) of the Superannuation Industry (Supervision) Act 1993 (the SIS Act), the Chair of the Australian Prudential Regulation Authority (APRA) may, by legislative instrument, determine that APRA staff members of a class specified in the determination are to be infringement officers for the purposes of exercising powers under Part 22 of the SIS Act in relation to a contravention of a provision that is subject to an infringement notice under that Part.
Section 223A of the SIS Act sets out provisions of Part 22 that are subject to an infringement notice. Under the SIS Act, a person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of a provision subject to an infringement notice under Part 22.
On 19 September 2013, the Chair of APRA made an instrument under subsection 223C(1) of the SIS Act, the Determination that APRA staff members of a class are to be infringement officers (the 2013 determination). The 2013 determination was never registered under the Legislation Act 2003 (the Legislation Act) (which was, at the time, titled the Legislative Instruments Act 2003). As such, it never took effect. It is now being registered, in compliance with the Legislation Act. Infringement notices have never been given in reliance on the 2013 determination.
The Superannuation Industry (Supervision) (Infringement Officers) Determination 2023 (the 2023 determination) repeals the 2013 determination, and makes a new determination under subsection 223C(1) of the SIS Act.
Both the 2013 determination and the 2023 determination broadly specify the same class of APRA staff members. In the 2013 determination, this class was described as APRA staff members holding the title of General Manager or above. In the 2023 determination, this class is described as APRA staff members holding, occupying or performing the duties or an office or position titled General Manager or Executive Director. By section 223B of the SIS Act, a person within this class is an infringement officer for the purposes of exercising powers under Part 22 of the SIS Act.
Authority
The instruments are made under subsection 223C(1) of the SIS Act.
There is no express power in the SIS Act to repeal a determination made under section 223C. Instead, the 2023 determination relies, for the repeal of the 2013 determination, on subsection 33(3) of the Acts Interpretation Act 1901 for the power to repeal the 2013 determination. Under subsection 33(3), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Provision‑by‑provision description of the instruments
The 2013 determination is not broken up into provisions. A provision‑by‑provision explanation of the 2023 determination is set out in Attachment A.
Statutory preconditions to the making of the instruments
Under subsection 223C(2) of the SIS Act, the Chair of APRA must not specify a class of APRA staff members in a determination made under subsection 223C(1) unless the Chair is satisfied that persons of that class have suitable training or experience to properly exercise the powers of an infringement officer.
The Chair has considered this matter, and is satisfied that APRA staff members within the class specified in the 2013 determination, and the class of APRA staff members within the class specified in the 2023 determination, have suitable training or experience to properly exercise the powers of an infringement officer.
Documents incorporated by reference
No documents are incorporated in the instruments by reference.
Consultation
The 2013 determination and the 2023 determination function in a similar way to appointments, delegations and authorisations. Consultation is not appropriate for instruments of this nature.
Commencement of the instruments
Both the 2013 determination and the 2023 determination commence prospectively.
The 2013 determination commences on the day after it is registered on the Federal Register of Legislation.
The 2023 determination also commences on the day after it is registered on the Federal Register of Legislation. The 2023 determination repeals the 2013 determination immediately after the 2013 determination commences. The new specification under subsection 223C(1) of the SIS Act, in section 5 of the 2023 determination, commences immediately after the 2013 determination is repealed.
Exemptions from sunsetting and from disallowance
Both the 2013 determination and the 2023 determination are exempt from disallowance under section 42 of the Legislation Act and sunsetting under Part 4 of the Legislation Act.
The exemption from disallowance stems from paragraph 44(2)(b) of the Legislation Act and item 3 of the table to section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Legislation Regulation).
The exemption from sunsetting stems from paragraph 54(2)(b) of the Legislation Act and item 6 of the table to section 11 of the Legislation Regulation.
Determinations under section 223C of the SIS Act function in a similar way to appointments, delegations and authorisations. Instruments of this nature are ordinarily not made by disallowable legislative instrument, as it is uncommon for there to be Parliamentary scrutiny of instruments of this nature. Further, instruments of this nature ordinarily do not sunset, and ordinarily continue in force until revoked by the instrument‑maker. Because of this, it is appropriate that determinations made under section 223C continue not to be disallowable, and continue not to be subject to sunsetting under Part 4 of the Legislation Act.
As the 2013 determination and the 2023 determination are not disallowable legislative instruments, subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 does not require a statement of compatibility to be prepared in respect of either instrument.
Attachment A – 2023 determination – provision‑by‑provision explanation
Section 1 – Name
Section 1 provides for the name of the 2023 determination.
Section 2 – Commencement
Section 2 deals with commencement of the 2023 instrument. The 2013 instrument will commence on the day after it is registered on the Federal Register of Legislation. Section 2 of the 2023 determination has the effect that:
- The 2023 determination, other than section 5, will commence on the day after the instrument is registered on the Federal Register of Legislation.
- The 2013 determination will be repealed on that day, immediately after it commences.
- Section 5, the operative provision of the 2023 determination, will commence on that day, immediately after the repeal of the 2013 determination.
Section 3 – Authority
Section 3 sets out the provision under which the 2023 determination is made (this being section 223C of the SIS Act).
Section 4 – Definitions
Section 4 sets out definitions of terms used in the 2023 determination. Section 4 refers to the definition of the term ‘APRA staff member’, which can be found in the Australian Prudential Regulation Authority Act 1998.
Section 5 – Determination
Section 5 sets out the substantive determination under subsection 223C(1) of the SIS Act. It provides that APRA staff members holding, occupying or performing the duties or an office or position titled General Manager or Executive Director are to be infringement officers for the purposes of exercising powers under Part 22 of the Act in relation to a contravention of a provision that is subject to an infringement notice under that Part.
Schedule 1 – Repeals
Schedule 1 repeals the 2013 determination.