An Act to regulate Banking, to make provision for the Protection
of the Currency and of the Public Credit of the Commonwealth, and for other
purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Banking
Act 1959.
2
Commencement [see Note
1]
Except as otherwise provided by this
Act, this Act shall come into operation on the day on which the Reserve Bank
Act 1959 comes into operation.
4
Repeal
The following Acts are repealed:
Banking Act 1945;
Banking Act 1953.
5
Interpretation
Definitions
(1) In this Act, unless the contrary
intention appears:
account‑holder means an entity (as
defined in section 960‑100 of the Income Tax Assessment Act 1997)
that has (either alone or jointly with another entity) an account or covered
financial product with an ADI.
action that is likely to have a detrimental effect on
financial system stability in New Zealand includes an
action that prevents or interferes with an outsourcing arrangement.
ADI is short for authorised deposit‑taking
institution.
ADI statutory manager has the meaning given
by subsection 13A(2).
administrator of an ADI’s business means an
administrator appointed under subsection 13A(1) to take control of an ADI’s
business.
advance includes loan.
APRA means the Australian Prudential Regulation
Authority.
APRA member has the same meaning as in the Australian
Prudential Regulation Authority Act 1998.
APRA Special Account has the same meaning as
in the Australian Prudential Regulation Authority Act 1998.
APRA staff member has the same meaning as in
the Australian Prudential Regulation Authority Act 1998.
ASIC means the Australian Securities and
Investments Commission.
Australia includes the Territories.
authorised deposit‑taking institution
means a body corporate in relation to which an authority under subsection 9(3)
is in force.
authorised NOHC means a body corporate:
(a) in relation to which an authority
under subsection 11AA(2) is in force; and
(b) that is a NOHC of an ADI or ADIs.
banking business means:
(a) a business that consists of banking
within the meaning of paragraph 51(xiii) of the Constitution; or
(b) a business that is carried on by a
corporation to which paragraph 51(xx) of the Constitution applies and that
consists, to any extent, of:
(i) both taking money on
deposit (otherwise than as part‑payment for identified goods or services)
and making advances of money; or
(ii) other financial
activities prescribed by the regulations for the purposes of this definition.
business day means a day that is not a
Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
civil penalty provision: a subsection of this
Act (or a section of this Act that is not divided into subsections) is a civil
penalty provision if:
(a) the words “civil penalty” and one
or more amounts in penalty units are set out at the foot of the
subsection (or section); or
(b) another provision of this Act
specifies that the subsection (or section) is a civil penalty provision.
Note: Schedule 2 deals with contraventions of
civil penalty provisions, and treats people who are involved in various ways in
such a contravention as if they had contravened the provision concerned.
covered financial product has the meaning
given by subsection (8).
declaration time for an ADI means the time
the ADI becomes a declared ADI.
declared ADI means an ADI specified in a
declaration under section 16AD as an ADI in relation to which Subdivision
C of Division 2AA of Part II applies.
external administrator means any of the
following:
(a) a liquidator or provisional liquidator;
(b) a receiver, manager, managing
controller, receiver and manager or other controller (other than an ADI
statutory manager);
(c) a voluntary administrator or
administrator of a deed of a company arrangement or a scheme manager.
Expressions used in this definition have the same meanings
as they have in the Corporations Act 2001.
Finance Minister means the Minister who
administers the Financial Management and Accountability Act 1997.
Financial Claims Scheme Special Account has
the same meaning as in the Australian Prudential Regulation Authority Act
1998.
Financial System Stability Special Account
means the Financial System Stability Special Account established by
section 70E.
foreign ADI means a body corporate that:
(a) is a foreign corporation within
the meaning of paragraph 51(xx) of the Constitution; and
(b) is authorised to carry on banking
business in a foreign country; and
(c) has been granted an authority
under section 9 to carry on banking business in Australia.
industry support contract means a contract
under which emergency financial support is to be provided by parties to the
contract to any ADI that is a party to the contract if a specified event
occurs. The contract may also deal with matters associated with the provision
of the financial support.
insolvent, in relation to a body corporate,
means that the body corporate is not able to pay all its debts as and when they
become due and payable.
net credit balance:
(a) the net credit balance,
at a time, of an account means the excess of the balance of the
account in credit in favour of the account‑holder at that time over the
amount (if any) of fees, charges and duties that are identified under the
agreement under which the account is kept and are payable by the account‑holder
to the ADI at that time; and
(b) the net credit balance,
at a time, of a covered financial product that is not an account
means the amount owed to the account‑holder at that time under the terms
of the agreement under which the covered financial product is kept.
New Zealand registered bank means a
registered bank, as defined in section 2 of the Reserve Bank of New
Zealand Act 1989 of New Zealand, that carries on a business in New Zealand.
NOHC is short for non‑operating holding
company.
NOHC authority means an authority under
subsection 11AA(2).
non‑operating holding company means, in
relation to a body corporate, a body corporate:
(a) of which the first body corporate
is a subsidiary; and
(b) that does not carry on a business
(other than a business consisting of the ownership or control of other bodies
corporate); and
(c) that is incorporated in Australia.
outsourcing arrangement means an arrangement
for the business of a New Zealand registered bank, or functions relating to
such business, to be carried on by an entity other than the bank.
penalty unit has the meaning given by
section 4AA of the Crimes Act 1914.
personal information has the same meaning as
in the Privacy Act 1988.
prescribed New Zealand
authority means the following:
(a) the Reserve Bank of New Zealand;
(b) an authority of the government of New
Zealand that:
(i) has statutory
responsibilities relating to prudential regulation or financial system
stability; and
(ii) is prescribed by the
regulations for the purposes of this definition.
protected account has the meaning given by
subsections (4), (5), (6) and (7).
prudential matters
means matters relating to:
(a) the conduct by an ADI, an
authorised NOHC, a relevant group of bodies corporate, or a particular member
or members of such a group, of any part of its or their affairs in such a way
as:
(i) to keep the ADI, NOHC,
group or member or members of the group in a sound financial position; or
(ii) not to cause or
promote instability in the Australian financial system; or
(iii) not to cause or promote
instability in the New Zealand financial system; or
(b) the conduct by an ADI, an
authorised NOHC, a relevant group of bodies corporate, or a particular member
or members of such a group, of its or their affairs with integrity, prudence
and professional skill.
prudential requirement regulation means a
regulation under section 11A.
prudential standard means a standard under
section 11AF.
relevant group of bodies corporate has the
meaning given by subsection 5(3).
section 9 authority means an authority under
subsection 9(3).
senior manager of an ADI or an authorised
NOHC or the Australian operations of a foreign ADI means a person who has or
exercises any of the senior management responsibilities (within the meaning of the prudential
standards) for the ADI or NOHC or for the Australian operations of the foreign
ADI, as the case may be.
subsidiary has the meaning given by subsection (2).
the Reserve Bank means the Reserve Bank of Australia.
ultimate termination of control has the
meaning given by subsection 13C(1).
Subsidiary
(2) For the purposes of this Act, the
question whether a body corporate is a subsidiary of another body corporate is
to be determined in the same way as that question is determined for the
purposes of the Corporations Act 2001.
Relevant group of bodies corporate
(3) For the purposes of this Act:
(a) an ADI and its subsidiaries
together constitute a relevant group of bodies corporate; and
(b) an authorised NOHC and its
subsidiaries together also constitute a relevant group of bodies corporate.
Protected account
(4) Subject to subsections (5), (6) and
(7), a protected account is an account or covered financial
product that is kept by an account‑holder (whether alone or jointly with
one or more other account‑holders) with an ADI and either:
(a) is an account that is prescribed
by the regulations for the purposes of this paragraph; or
(b) is an account, or covered
financial product, that is kept under an agreement between the account‑holder
and the ADI requiring the ADI to pay the account‑holder, on demand by the
account‑holder or at a time agreed by them, the net credit balance of the
account or covered financial product at the time of the demand or the agreed
time (as appropriate).
Note: Paragraph (a)—the regulations may
prescribe the account by reference to a class of accounts: see subsection 13(3)
of the Legislative Instruments Act 2003.
(5) An account is not a protected
account on and after 12 October 2011 unless:
(a) it is recorded in Australian
currency; or
(b) it is kept with an ADI that is a
declared ADI on 12 October 2011.
(6) A covered financial product that is kept
with an ADI and is not an account is not a protected account if
APRA applies under section 14F on or after 12 October 2011 for an order that the ADI be wound up.
(7) An account or covered financial product
is not a protected account if the account or covered financial
product is prescribed by the regulations for the purposes of this subsection.
Note: The regulations may prescribe the account or
covered financial product by reference to a class of accounts or financial
products: see subsection 13(3) of the Legislative Instruments Act 2003.
Covered financial product
(8) The Minister may declare that a specified
financial product is a covered financial product.
Note: The declaration may specify the product by
reference to a class of financial products: see subsection 13(3) of the Legislative
Instruments Act 2003.
(9) A declaration made under
subsection (8), or an amendment of the declaration, is a legislative
instrument, but neither section 42 (disallowance) nor Part 6
(sunsetting) of the Legislative Instruments Act 2003 applies to the
declaration or amendment.
(10) The declaration or amendment takes effect
from the time it is made, despite subsections 12(1) and (2) of the Legislative
Instruments Act 2003.
6
Application of Act
(1) Nothing in Part II or V, or in
sections 61 to 69 (inclusive), applies with respect to State banking.
(2) Subject to section 6A, this Act
extends to all the Territories.
6A
Cessation of application of Act to Territory
(1) The Treasurer may, by notice published in
the Gazette, declare that, on a date specified in the notice, this Act
shall cease to extend to an external Territory specified in the notice, and, on
and after the date specified in such a notice, this Act, other than subsection (2),
does not extend to the Territory so specified and a reference in this Act,
other than this section, to a Territory does not include a reference to the
Territory so specified.
(2) Section 8 of the Acts
Interpretation Act 1901 applies in relation to a notice published under
this section as if the notice were an Act repealing this Act to the extent
that, immediately before the date specified in the notice, this Act extended to
the Territory specified in the notice.
6B
Application of Criminal Code
The Criminal Code applies to all
offences against this Act.
Part II—Provisions relating to the carrying on of banking business
Division 1—Authority to carry on banking business
7
Person other than a body corporate must not carry on banking business
(1) A person is guilty of an offence if:
(a) the person carries on any banking
business in Australia; and
(b) the person is not a body
corporate; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(2) An offence against subsection (1) is
an indictable offence.
(3) If a person carries on banking business
in circumstances that give rise to the person committing an offence against subsection (1),
the person is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
8 Only
the Reserve Bank and bodies corporate that are ADIs may carry on banking
business
(1) A body corporate is guilty of an offence
if:
(a) the body corporate carries on any
banking business in Australia; and
(b) the body corporate is not the
Reserve Bank; and
(c) the body corporate is not an ADI;
and
(d) there is no determination in force
under section 11 that this subsection does not apply to the body corporate.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(2) An offence against subsection (1) is
an indictable offence.
(3) If a body corporate carries on banking
business in circumstances that give rise to the body corporate committing an
offence against subsection (1), the body corporate is guilty of an offence
against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the body corporate committing the
offence continue (including the day of conviction for any such offence or any
later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
9
Authority to carry on banking business
(2) A body corporate which desires authority
to carry on banking business in Australia may apply in writing to APRA for
authority accordingly.
Note: The body corporate may also need to consider
the implications of the Foreign Acquisitions and Takeovers Act 1975 and
the Financial Sector (Shareholdings) Act 1998.
(3) If an application has been made, APRA may
grant the body corporate an authority to carry on banking business in Australia.
The authority must be in writing, and APRA must give the body corporate written
notice of the granting of the authority.
Note 1: The fact that a body corporate is granted an
authority to carry on banking business in Australia does not mean it is
entitled to call itself a bank. To do this, the body corporate will need to
have a consent under section 66.
Note 2: For APRA’s power to revoke an authority, see
section 9A.
(3A) Without limiting the circumstances in which
APRA may refuse an application by a body corporate for authority to carry on
banking business in Australia, APRA may refuse such an application if the body
corporate is a subsidiary of a NOHC that does not hold a NOHC authority.
(4) APRA may, at any time, by notice in
writing served on the body corporate concerned:
(a) impose conditions, or additional
conditions, on an authority; or
(b) vary or revoke conditions imposed
on an authority.
The conditions must relate to prudential matters.
(4A) Without limiting the conditions that APRA
may impose under subsection (4) on an ADI’s authority, APRA may make the
authority conditional on a body corporate of which the ADI is a subsidiary
being an authorised NOHC.
(5) A condition may be expressed to have
effect notwithstanding anything in the prudential standards or the regulations.
(6) An ADI is guilty of an offence if:
(a) it does, or fails to do, an act;
and
(b) doing, or failing to do, the act
results in a contravention of a condition of the ADI’s authority; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the ADI.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(6A) An offence against subsection (6) is
an indictable offence.
(6B) If an ADI does or fails to do an act in
circumstances that give rise to the ADI committing an offence against subsection (6),
the ADI is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the ADI committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(7) If APRA:
(a) grants an authority under subsection (3);
or
(b) imposes, varies or revokes
conditions under subsection (4);
APRA must cause notice of that action to be published in
the Gazette. APRA may also cause notice of that action to be published
in any other way it considers appropriate.
(8) A failure to comply with subsection (7)
does not affect the validity of the action concerned.
(9) Part VI applies to the following
decisions under this section:
(a) a decision to refuse an
application under this section;
(b) a decision to impose conditions,
or additional conditions, on an authority;
(c) a decision to vary conditions
imposed on an authority.
9A
Revocation of authority
(1) APRA must revoke a body corporate’s
section 9 authority if:
(a) the body corporate, by notice in
writing to APRA, requests the revocation of the authority; and
(b) APRA
is satisfied that the revocation of the authority:
(i) would not be contrary
to the national interest; and
(ii) would not be contrary
to the interests of depositors of the body corporate.
(2) APRA may revoke a body corporate’s
section 9 authority if APRA is satisfied that:
(aa) the body corporate has, whether
before or after the commencement of this paragraph, provided, in connection
with its application for the authority, information that was false or
misleading in a material particular; or
(a) the body corporate has failed to
comply with:
(i) a requirement of this
Act or the regulations or the Financial Sector (Collection of Data) Act 2001;
or
(ii) a direction under
Division 1BA; or
(iii) a condition of its
section 9 authority; or
(b) it would be contrary to the
national interest for the authority to remain in force; or
(ba) it would be contrary to financial
system stability in Australia for the authority to remain in force; or
(c) it would be contrary to the
interests of depositors of the body corporate for the authority to remain in
force; or
(d) the body corporate has failed to
pay:
(i) an amount of levy or
late penalty to which the Financial Institutions Supervisory Levies
Collection Act 1998 applies; or
(ii) an amount of charge
fixed under section 51 of the Australian Prudential Regulation
Authority Act 1998; or
(e) the body corporate is insolvent and
is unlikely to return to solvency within a reasonable period of time; or
(f) the body corporate has ceased to
carry on banking business in Australia.
The procedures to be undergone before a revocation under
this subsection are set out in subsection (3). Those procedures apply
unless APRA determines under subsection (4) that they are not to apply.
(3) Subject to subsection (4), APRA must
not, under subsection (2), revoke a body corporate’s section 9
authority unless:
(a) APRA has given the body corporate
a notice in writing advising the body corporate:
(i) that APRA is
considering revoking the authority for the reasons specified in the notice; and
(ii) that the body
corporate may make submissions to APRA, in accordance with the notice, about
the possible revocation; and
(iii) of the date by which
any submissions must be made (being a date at least 90 days after the giving of
the notice); and
(b) APRA has considered any
submissions that were made by the body corporate by the specified date.
(4) APRA may determine that the procedures in
subsection (3) do not apply if APRA is satisfied that following those
procedures could result in a delay in revocation that would be:
(a) contrary to the national interest;
or
(b) contrary to the interests of
depositors with the body corporate.
(5) A revocation of a body corporate’s
section 9 authority under subsection (1) or (2) must be in writing,
and APRA must give the body corporate written notice of the revocation of the
authority.
(6) If APRA revokes a body corporate’s
section 9 authority under subsection (1) or (2), APRA must cause
notice of the revocation to be published in the Gazette. APRA may also
cause notice of the revocation to be published in any other way it considers
appropriate.
(7) A failure to comply with subsection (5)
(so far as it requires a body corporate to be given written notice of a
revocation) or with subsection (6) does not affect the validity of a
revocation.
(8) Part VI applies to the following
decisions under this section:
(a) a decision to refuse to revoke a
body corporate’s section 9 authority;
(b) a decision to revoke a body
corporate’s section 9 authority, unless APRA has determined, under
subsection (4), that the procedures in subsection (3) do not apply.
9B
Bodies that cease to exist or change their names
(1) If APRA is satisfied that a body
corporate that has been granted a section 9 authority:
(a) has ceased to exist; or
(b) has changed its name;
APRA must cause notice of that fact to be published in the
Gazette. APRA may also cause notice of that fact to be published in any
other way it thinks appropriate.
(2) If the body corporate has ceased to
exist, its section 9 authority is taken to be revoked on publication of
the notice in the Gazette.
(3) If the body corporate has changed its
name, its section 9 authority has effect after the publication of the
notice in the Gazette as if it had been granted to the body under its
changed name.
9C
Publication of list of ADIs
APRA may, from time to time, publish a
list of ADIs:
(a) in the Gazette; or
(b) in such other manner as APRA
determines.
10
APRA to be supplied with certain documents
(1) An application under this Part by a body
corporate shall be accompanied by a copy of the Act, charter, deed of
settlement, memorandum of association and articles of association of the body
corporate, or other document by which the body corporate is constituted.
(2) Every copy of an Act, charter, deed of
settlement, memorandum of association, articles of association or other
document furnished to APRA under subsection (1) shall be verified by a
statutory declaration made by a senior officer of the body corporate concerned.
(3) An ADI is guilty of an offence if:
(a) an alteration is made to the Act,
charter, deed of settlement, memorandum of association, articles of
association, constitution or other document by which the ADI was constituted as
a body corporate; and
(b) the ADI does not, within 3 months
of the making of the alteration, give to APRA a written statement:
(i) that sets out
particulars of the alteration; and
(ii) that is verified by a
statutory declaration made by a senior officer of the ADI; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
11
APRA may determine that provisions of this Act do not apply
(1) APRA may, in writing, determine that any
or all of the following provisions of this Act do not apply to a person while
the determination is in force:
(a) a provision of Division 1,
1AA or 1A of Part II (other than section 11A, 11B or 11C);
(b) section 66;
(c) section 66A;
(d) section 67;
(e) section 69.
(2) The
determination:
(a) may be expressed to apply to a
particular person or to a class of persons; and
(b) may specify the period during
which the determination is in force; and
(c) may be made subject to specified
conditions.
(2A) If APRA makes a determination that applies
to a particular person, APRA must also give the person written notice of the
determination.
(3) A person is guilty of an offence if:
(a) the person does, or fails to do,
an act; and
(b) doing, or failing to do, the act
results in a contravention of a condition to which a determination under this
section is subject (being a determination that is in force and that applies to
the person).
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3A) An offence against subsection (3) is
an indictable offence.
(3B) If a person does or fails to do an act in
circumstances that give rise to the person committing an offence against subsection (3),
the person is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(4) APRA may, in writing, vary or revoke a
determination under this section.
(5) The
following instruments made under this section are not legislative instruments:
(a) a determination that applies to a
particular person;
(b) an instrument varying or revoking
a determination that applies to a particular person.
(6) Otherwise, an instrument made under this
section is a legislative instrument.
(5) Part VI applies to the following
decisions under this section:
(a) a refusal to determine that one or
more provisions of this Act do not apply to a particular person;
(b) a variation or revocation of an
order under this section that applies to a particular person.
Division 1AA—Authority to be a NOHC of an ADI
11AA
Authority to be a NOHC
(1) A body corporate may apply in writing to
APRA for an authority under this section. The authority operates as an
authority in relation to the body corporate and any ADIs that are subsidiaries
of the body corporate from time to time.
Note 1: The body corporate may want the authority:
(a) because APRA refuses
or may refuse to grant a subsidiary of the body corporate a section 9
authority unless the body corporate holds a NOHC authority (see subsection
9(3A)); or
(b) for a purpose
connected with the Financial Sector (Shareholdings) Act 1998.
Note 2: The body corporate may also need to consider
the implications of the Foreign Acquisitions and Takeovers Act 1975 and
the Financial Sector (Shareholdings) Act 1998.
(2) APRA may grant the authority if it
considers it is appropriate to do so.
Note: For APRA’s power to revoke the authority, see
section 11AB.
(3) APRA may, at any time, by notice in
writing given to the body corporate:
(a) impose conditions, or additional
conditions, on the authority; and
(b) vary or revoke conditions imposed
on the authority.
The conditions must relate to prudential matters.
(4) A condition may be expressed to have
effect despite anything in the prudential standards or the regulations.
(5) The body corporate is guilty of an
offence if:
(a) it does, or fails to do, an act;
and
(b) doing, or failing to do, the act
results in a contravention of a condition of the authority; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the body
corporate.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(5A) An offence against subsection (5) is
an indictable offence.
(5B) If the body corporate does or fails to do
an act in circumstances that give rise to the body corporate committing an
offence against subsection (5), the body corporate is guilty of an offence
against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the body corporate committing the
offence continue (including the day of conviction for any such offence or any
later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(6) If APRA:
(a) grants an authority under subsection (2);
or
(b) imposes, varies or revokes
conditions under subsection (3);
APRA must cause notice of that action to be published in
the Gazette. APRA may also cause notice of that action to be published
in any other way that it considers appropriate.
(7) A failure to comply with subsection (6)
does not affect the validity of the action concerned.
(8) Part VI applies to the following
decisions under this section:
(a) a decision to refuse an
application under this section;
(b) a decision to impose conditions,
or additional conditions, on an authority;
(c) a decision to vary conditions
imposed on an authority.
11AB
Revocation of authority
(1) APRA must revoke a NOHC authority granted
to a body corporate if:
(a) the body corporate, by notice in
writing to APRA, requests the revocation of the authority; and
(b) APRA is satisfied that revocation
of the authority:
(i) would not be contrary
to the national interest; and
(ii) would not be contrary
to the interests of depositors of any ADI that is a subsidiary of the body
corporate.
(2) APRA may
revoke a NOHC authority granted to a body corporate if APRA is satisfied that:
(aa) the body corporate has, whether
before or after the commencement of this paragraph, provided, in connection
with its application for the authority, information that was false or
misleading in a material particular; or
(a) the body corporate has failed to comply
with:
(i) a requirement of this
Act or the regulations or the Financial Sector (Collection of Data) Act 2001;
or
(ii) a direction under
Division 1BA; or
(iii) a condition of its
NOHC authority; or
(b) the body corporate has ceased to
be a NOHC of any ADI or ADIs; or
(c) it would be contrary to the
national interest for the authority to remain in force; or
(ca) it would be contrary to financial
system stability in Australia for the authority to remain in force; or
(d) it would be contrary to the
interests of depositors of any ADI that is a subsidiary of the body corporate
for the authority to remain in force; or
(e) the body corporate has failed to
pay:
(i) an amount of levy or
late penalty to which the Financial Institutions Supervisory Levies
Collection Act 1998 applies; or
(ii) an
amount of charge fixed under section 51 of the Australian Prudential
Regulation Authority Act 1998.
The procedures to be undergone before a revocation under
this subsection are set out in subsection (3). Those procedures apply
unless APRA determines under subsection (4) that they are not to apply.
(3) Subject to subsection (4), APRA must
not, under subsection (2), revoke a body corporate’s NOHC authority
unless:
(a) APRA has given the body corporate
a notice in writing advising the body corporate:
(i) that APRA is
considering revoking the authority for the reasons specified in the notice; and
(ii) that the body
corporate may make submissions to APRA, in accordance with the notice, about
the possible revocation; and
(iii) of the date by which
any submissions must be made (being a date at least 90 days after the giving of
the notice); and
(b) APRA has considered any
submissions that were made by the body corporate by the specified date.
(4) APRA may determine that the procedures in
subsection (3) do not apply if APRA is satisfied that following those
procedures could result in a delay in revocation that would be:
(a) contrary to the national interest;
or
(b) contrary to the interests of
depositors of any ADI that is a subsidiary of the body corporate.
(5) A revocation of a body corporate’s NOHC
authority under subsection (1) or (2) must be in writing, and APRA must
give the body corporate written notice of the revocation of the authority.
(6) If APRA revokes a body corporate’s NOHC
authority under subsection (1) or (2), APRA must cause notice of the
revocation to be published in the Gazette. APRA may also cause notice of
the revocation to be published in any other way it considers appropriate.
(7) A failure to comply with subsection (5)
(so far as it requires a body corporate to be given written notice of a
revocation) or with subsection (6) does not affect the validity of a
revocation.
(8) Part VI applies to the following
decisions under this section:
(a) a decision to refuse to revoke a
NOHC authority granted to a body corporate;
(b) a decision to revoke a NOHC
authority granted to a body corporate, unless APRA has determined, under
subsection (4), that the procedures in subsection (3) do not apply.
11AC Bodies
that cease to exist or change their names
(1) If APRA is satisfied that a body
corporate that has been granted a NOHC authority:
(a) has ceased to exist; or
(b) has changed its name;
APRA must cause notice of that fact to be published in the
Gazette. APRA may also cause notice of that fact to be published in any
other way it thinks appropriate.
(2) If the body corporate has ceased to
exist, any NOHC authority granted to the body corporate that is still in force
is taken to be revoked on publication of the notice in the Gazette.
(3) If the body corporate has changed its
name, any NOHC authority granted to the body corporate that is still in force
has effect after the publication of the notice in the Gazette as if it
had been granted to the body under its changed name.
11AD
Publication of list of NOHCs
APRA may, from time to time, publish a
list of authorised NOHCs:
(a) in the Gazette; or
(b) in such other manner as APRA
determines.
Division 1A—Prudential supervision and monitoring of ADIs and authorised
NOHCs
11AF
APRA may make prudential standards for ADIs and authorised NOHCs
(1) APRA may, in writing, determine standards
in relation to prudential matters to be complied with by:
(a) all ADIs; or
(b) all authorised NOHCs; or
(c) a specified class of ADIs or
authorised NOHCs; or
(d) one or more specified ADIs or
authorised NOHCs.
(1A) A standard may impose different
requirements to be complied with in different situations or in respect of
different activities.
(1AA) Without limiting the prudential matters in
relation to which APRA may determine a standard, a standard may require:
(a) each ADI or authorised NOHC; or
(b) each ADI or authorised NOHC
included in a specified class of ADIs or authorised NOHCs; or
(c) a specified ADI or authorised
NOHC; or
(d) each of 2 or more specified ADIs
or authorised NOHCs;
to ensure that its subsidiaries (or particular
subsidiaries), or it and its subsidiaries (or particular subsidiaries),
collectively satisfy particular requirements in relation to prudential matters.
(2) A standard may provide for APRA to
exercise powers and discretions under the standard, including (but not limited
to) discretions to approve, impose, adjust or exclude specific prudential
requirements in relation to one or more specified ADIs or authorised NOHCs.
(3) APRA may, in writing, vary or revoke a
standard.
(3A) A standard referred to in
paragraph (1)(d), or an instrument varying or revoking such a standard,
has effect:
(a) from the day on which the
standard, variation or revocation is made; or
(b) if the standard, variation or
revocation specifies a later day—from that later day.
(4A) If APRA determines or varies a standard
referred to in paragraph (1)(d) it must, as soon as practicable, give a
copy of the standard, or of the variation, to the ADI or authorised NOHC, or to
each ADI or authorised NOHC, to which the standard applies. Whenever APRA gives
a copy of a standard, or of a variation, to an ADI or authorised NOHC, it must
also provide a copy to the Treasurer.
(5A) If APRA revokes a standard referred to in paragraph (1)(d)
it must, as soon as practicable, give notice of the revocation to the ADI or
authorised NOHC, or to each ADI or authorised NOHC, to which the standard
applied. Whenever APRA gives a notice of revocation to an ADI or authorised
NOHC, it must also provide a copy to the Treasurer.
(7) A failure to comply with subsection (4A)
or (5A) does not affect the validity of the action concerned.
(7A) The following instruments made under this
section are not legislative instruments:
(a) a standard referred to in
paragraph (1)(d);
(b) an instrument varying or revoking
a standard referred to in paragraph (1)(d).
(7B) Otherwise, an instrument made under this
section is a legislative instrument.
(7C) Part VI applies to the following
decisions under this section:
(a) a decision to determine a standard
referred to in paragraph (1)(d);
(b) a decision to vary such a
standard.
(8) In this
section:
Territory means a territory to which this Act
extends.
11A
Prudential requirements may also be prescribed by the regulations
The regulations may make provision for
and in relation to requiring ADIs and authorised NOHCs to observe such
requirements in relation to prudential matters as are specified in, or
ascertained in accordance with, the regulations.
11B
APRA to monitor prudential matters
The functions of APRA include:
(a) the collection and analysis of
information in respect of prudential matters relating to ADIs and authorised
NOHCs;
(b) the encouragement and promotion of
the carrying out by ADIs and authorised NOHCs of sound practices in relation to
prudential matters; and
(c) the evaluation of the
effectiveness and carrying out of those practices.
11C
Division not to limit operation of other provisions
Nothing in this Division is intended to
limit the operation of any other provision of this Act or of the Reserve
Bank Act 1959.
Division 1BA—APRA’s power to issue directions
Subdivision A—Directions other than to enforce certified industry support
contracts
11CA
APRA may give directions in certain circumstances
(1) APRA may give a body corporate that is an
ADI or an authorised NOHC a direction of a kind specified in
subsection (2) if APRA has reason to believe that:
(a) the body corporate has contravened
a provision of:
(i) this Act; or
(ii) the Financial
Sector (Collection of Data) Act 2001; or
(iii) the First Home
Saver Accounts Act 2008; or
(b) the body corporate has contravened
a prudential requirement regulation or a prudential standard; or
(c) the body corporate is likely to
contravene this Act, a prudential requirement regulation, a prudential standard,
the Financial Sector (Collection of Data) Act 2001 or the First Home
Saver Accounts Act 2008, and such a contravention is likely to give rise to
a prudential risk; or
(d) the body corporate has contravened
a condition or direction under this Act or the Financial Sector (Collection
of Data) Act 2001; or
(e) the direction is necessary in the
interests of:
(i) if the body corporate
is an ADI—depositors of the ADI; or
(ii) if the body corporate
is an authorised NOHC—depositors of any ADI that is a subsidiary of the NOHC;
or
(f) the body corporate is, or is
about to become, unable to meet its liabilities; or
(g) there is, or there might be, a
material risk to the security of the body corporate’s assets; or
(h) there has been, or there might be,
a sudden material deterioration in the body corporate’s financial condition; or
(i) the body corporate is conducting
its affairs in an improper or financially unsound way; or
(j) the failure to issue a direction
would materially prejudice the interests of:
(i) if the body corporate
is an ADI—depositors of the ADI; or
(ii) if the body corporate
is an authorised NOHC—depositors of any ADI that is a subsidiary of the NOHC;
or
(k) the body corporate is conducting
its affairs in a way that may cause or promote instability in the Australian
financial system.
(1A) The direction must:
(a) be given by notice in writing to
the body corporate; and
(b) specify the ground referred to in
subsection (1) as a result of which the direction is given.
(2) The kinds of direction that the body
corporate may be given are directions to do, or to cause a body corporate that
is its subsidiary to do, any one or more of the following:
(aa) to comply with the whole or a part
of:
(i) this Act; or
(ii) the Financial
Sector (Collection of Data) Act 2001; or
(iii) the First Home
Saver Accounts Act 2008;
(ab) to comply with the whole or a part
of a condition or direction referred to in paragraph (1)(d);
(a) to comply with the whole or a part
of a prudential requirement regulation or a prudential standard;
(b) to order an audit of the affairs
of the body corporate, at the expense of the body corporate, by an auditor
chosen by APRA;
(c) to remove a director or senior
manager of the body corporate from office;
(d) to ensure a director or senior
manager of the body corporate does not take part in the management or conduct
of the business of the body corporate except as permitted by APRA;
(e) to appoint a person or persons as
a director or senior manager of the body corporate for such term as APRA
directs;
(f) to remove any auditor of the body
corporate from office and appoint another auditor to hold office for such term
as APRA directs;
(g) not to give any financial
accommodation to any person;
(h) not to accept the deposit of any
amount;
(i) not to borrow any amount;
(j) not to accept any payment on
account of share capital, except payments in respect of calls that fell due before
the direction was given;
(k) not to repay any amount paid on
shares;
(l) not to pay a dividend on any
shares;
(m) not to repay any money on deposit
or advance;
(n) not to pay or transfer any amount
to any person, or create an obligation (contingent or otherwise) to do so;
(o) not to undertake any financial
obligation (contingent or otherwise) on behalf of any other person;
(p) anything else as to the way in
which the affairs of the body corporate are to be conducted or not conducted.
A direction under paragraph (n) not to pay or
transfer any amount does not apply to the payment or transfer of money pursuant
to an order of a court or a process of execution.
(2A) Without limiting the generality of subsection (2),
a direction referred to in a paragraph of that subsection may:
(a) deal with some only of the matters
referred to in that paragraph; or
(b) deal with a particular class or
particular classes of those matters; or
(c) make different provision with
respect to different matters or different classes of matters.
(3) The direction may deal with the time by
which, or period during which, it is to be complied with.
(4) The body corporate has power to comply
with the direction despite anything in its constitution or any contract or
arrangement to which it is a party.
(4A) If the direction requires the body
corporate to cause a subsidiary to do, or to refrain from doing, an act or
thing:
(a) the body corporate has power to
cause the subsidiary to do, or to refrain from doing, the act or thing; and
(b) the subsidiary has power to do, or
to refrain from doing, the act or thing;
despite anything in the subsidiary’s constitution or any
contract or arrangement to which the subsidiary is a party.
(4B) APRA may, by notice in writing to the body
corporate, vary the direction if, at the time of the variation, it considers
that the variation is necessary and appropriate.
(5) The direction has effect until APRA
revokes it by notice in writing to the body corporate. APRA may revoke the
direction if, at the time of revocation, it considers that the direction is no
longer necessary or appropriate.
(5A) Part VI applies to a decision to give
a direction under subsection (1) as a result of the ground referred to in
paragraph (1)(a), (b), (c), (d) or (e).
(6) In this section, director has
the same meaning as it has in the Corporations Act 2001, and the affairs
of a body corporate include those set out in section 53 of that
Act.
Note 1: Senior manager is defined in
section 5 of this Act.
Note 2: For further information about directions, see
Subdivision C.
Subdivision B—Directions to enforce certified industry support contracts
11CB
APRA may certify an industry support contract
(1) APRA may certify an industry support
contract if all of the parties to the contract make a written request to APRA
that the contract be certified and APRA considers it appropriate to certify the
contract. The certification must be by notice in writing to the parties to the
contract.
(2) Part VI applies to a refusal under
this section to certify an industry support contract.
11CC
APRA may direct parties to an industry support contract to comply with the
contract
(1) APRA may direct any ADI that is a party
to an industry support contract that is certified under section 11CB to
carry out, or cease to carry out, specified acts if APRA considers:
(a) that carrying out, or ceasing to
carry out, those acts, is necessary in order for the terms of the contract to
be fulfilled; and
(b) that the direction is in the
interests of the depositors of one or more of the ADIs that are parties to the
contract.
The direction must be by notice in writing to the ADI.
(2) The direction may deal with the time by
which, or period during which, it is to be complied with.
(3) The ADI has power to comply with the
direction despite anything in its constitution or any contract or arrangement
to which it is a party.
(3A) APRA may vary the direction if, at the time
of the variation, it considers that the variation is necessary and appropriate.
(4) The direction has effect until:
(a) APRA revokes the direction by
notice in writing to the ADI (see subsection (5)); or
(b) APRA revokes the certification of
the industry support contract by notice in writing to the ADIs that are parties
to it (see subsection (6)).
(5) APRA may revoke the direction if, at the
time of the revocation, it considers that the direction is no longer necessary
or appropriate.
(6) APRA may revoke the certification of the
industry support contract if it considers that it is appropriate to do so for
any reason.
(7) Part VI applies to the following
decisions made under this section:
(a) a decision to give a direction;
(b) a decision to vary a direction;
(c) a revocation of the certification
of an industry support contract.
Subdivision C—General provisions relating to all directions
11CD
Direction not grounds for denial of obligations
(1) This section applies if an ADI,
authorised NOHC or subsidiary of an ADI or authorised NOHC is party to a
contract, whether the proper law of the contract is Australian law (including
the law of a State or Territory) or law of a foreign country (including the law
of part of a foreign country).
(1A) The fact that the ADI or authorised NOHC is
subject to a direction by APRA under Subdivision A or B does not allow the
contract, or a party to the contract, other than the ADI, NOHC or subsidiary,
to do any of the following:
(a) deny any obligations under that
contract;
(b) accelerate any debt under that
contract;
(c) close out any transaction relating
to that contract.
This subsection has effect subject to subsections (2)
and (3).
(2) If the ADI, NOHC or subsidiary is
prevented from fulfilling its obligations under the contract because of a
direction under Subdivision A, other than a direction under paragraph 11CA(2)(m),
the other party or parties to the contract are, subject to any orders made
under subsection (3), relieved from obligations owed to the ADI or
authorised NOHC under the contract.
(3) A party to a contract to which subsection (2)
applies may apply to the Federal Court of Australia for an order relating to
the effect on the contract of a direction under Subdivision A. The order may
deal with matters including (but not limited to):
(a) requiring a party to the contract
to fulfil an obligation under the contract despite subsection (2);
(b) obliging a party to the contract
to take some other action (for example, paying money or transferring property)
in view of obligations that were fulfilled under the contract before the
direction was made.
The order must not require a person to take action that
would contravene the direction, or any other direction under Subdivision A.
11CE
Supply of information about issue and revocation of directions
Power to publish notice of directions in Gazette
(1) APRA may publish in the Gazette notice
of any direction made under Subdivision A or B. The notice must include the
name of the ADI or authorised NOHC given the direction and a summary of the
direction.
Requirement to publish notice of revocation of certain
directions in Gazette
(2) If APRA publishes notice of a direction
made under Subdivision A or B and then later revokes the direction, APRA must
publish in the Gazette notice of that revocation as soon as practicable
after the revocation. Failure to publish notice of the revocation does not
affect the validity of the revocation.
Requirement to provide information about direction to
Treasurer and Reserve Bank
(3) If the Treasurer or the Reserve Bank
requests APRA to provide information about:
(a) any directions under Subdivision A
or B in respect of a particular ADI or authorised NOHC; or
(b) any directions made during a
specified period under Subdivision A or B in respect of any ADIs or authorised
NOHCs;
APRA must comply with the request.
Power to inform Treasurer and Reserve Bank of direction
(4) APRA may provide any information that it
considers appropriate to the Treasurer or the Reserve Bank about any
directions, or revocations of directions, made under Subdivision A or B, in
respect of any ADI or authorised NOHC, at any time.
Requirement to inform Treasurer and Reserve Bank of
revocation of direction if informed of making of direction
(5) If APRA provides the Treasurer or the
Reserve Bank with information about a direction and then later revokes the
direction, APRA must notify that person of the revocation of the direction as
soon as practicable after the revocation. Failure to notify the person does not
affect the validity of the revocation.
11CF
Secrecy requirements
Information relating to directions and revocations
of directions is subject to the secrecy requirements in Part 6 of the Australian
Prudential Regulation Authority Act 1998, unless the information has been
published in the Gazette under section 11CE.
11CG
Non‑compliance with a direction
(1) An ADI or an authorised NOHC is guilty of
an offence if:
(a) it does, or fails to do, an act;
and
(b) doing, or failing to do, the act
results in a contravention of a direction given to it under Subdivision A or B
or section 17 or 23.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1A) If an ADI or an authorised NOHC does or
fails to do an act in circumstances that give rise to the ADI or NOHC
committing an offence against subsection (1), the ADI or NOHC is guilty of
an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the ADI or NOHC committing the
offence continue (including the day of conviction for any such offence or any
later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(2) An officer of an ADI or an authorised
NOHC is guilty of an offence if:
(a) the officer fails to take
reasonable steps to ensure that the ADI or NOHC complies with a direction given
to it under Subdivision A or B or section 17 or 23; and
(b) the officer’s duties include
ensuring that the ADI or NOHC complies with the direction, or with a class of
directions that includes the direction.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(2A) If an officer of an ADI or an authorised
NOHC fails to take reasonable steps to ensure that the ADI or NOHC complies
with a direction given to it under Subdivision A or B or section 17 or 23
in circumstances that give rise to the officer committing an offence against subsection (2),
the officer is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the officer committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(3) In this section, officer has
the meaning given by section 9 of the Corporations Act 2001.
Division 1B—Provisions relating to certain ADIs
11D
Interpretation
In this Division:
foreign ADI does not include the Bank of
China.
11E
Division 2 not applicable to foreign ADIs
(1) Division 2 does not apply to a
foreign ADI.
(2) A foreign ADI is guilty of an offence if:
(a) it accepts a deposit from a person
in Australia; and
(b) before accepting the deposit, the
foreign ADI did not inform the person, in a manner approved by APRA, of the
requirements of this Act to which the foreign ADI is not subject because of subsection (1).
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
11F
Assets of foreign ADIs
If a foreign ADI (whether in or outside Australia)
suspends payment or becomes unable to meet its obligations, the assets of the
ADI in Australia are to be available to meet the ADI’s liabilities in Australia
in priority to all other liabilities of the ADI.
Division 2—Protection of depositors
Subdivision A—General provisions relating to depositor protection
12
APRA to protect depositors
(1) It is the duty of APRA to exercise its
powers and functions under this Division for the protection of the depositors
of the several ADIs and for the promotion of financial system stability in Australia.
(2) To avoid doubt, section 8A of the
Australian Prudential Regulation Authority Act 1998 (which deals
with trans‑Tasman cooperation) applies to the performance of functions
and the exercise of powers by APRA under this Division.
13 ADI
to supply information to APRA
APRA’s power to obtain information
(1) APRA may, by notice in writing to an ADI,
require the ADI to supply it, within the time specified in the notice, with
such information relating to the ADI’s financial stability as is specified in
the notice.
The requirement to supply information may include a
requirement to supply books, accounts or documents.
(2) The information supplied in compliance
with a requirement under subsection (1) must, if required by the notice,
be verified by a statutory declaration made by an officer of the ADI concerned
who is authorised by the ADI to make the declaration.
Information to be supplied if ADI unable, or likely to
be unable, to meet obligations
(3) An ADI is guilty of an offence if:
(a) the ADI considers that it is
likely to become unable to meet its obligations, or that it is about to suspend
payment; and
(b) the
ADI does not immediately inform APRA of the situation.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3A) An offence against subsection (3) is
an indictable offence.
APRA’s power to investigate or appoint an investigator
if information etc. not provided
(4) APRA may investigate the affairs of an
ADI, or appoint a person to do so, if the ADI fails to comply with a
requirement to provide information, books, accounts or documents under this
section.
Interpretation
(5) In this section:
officer, in relation to an ADI, has the same
meaning as in section 11CG.
13A
Consequences of inability or failure of ADI to meet obligations
Appointment of investigator or administrator, or
investigation or control by APRA
(1) APRA may investigate the affairs of an
ADI, appoint a person to investigate the affairs of an ADI, take control of the
ADI’s business or appoint an administrator to take control of the ADI’s
business if:
(a) the ADI informs APRA that the ADI
considers that it is likely to become unable to meet its obligations or that it
is about to suspend payment; or
(b) APRA considers that, in the
absence of external support:
(i) the ADI may become
unable to meet its obligations; or
(ii) the ADI may suspend
payment; or
(iii) it is likely that the
ADI will be unable to carry on banking business in Australia consistently with
the interests of its depositors and financial system stability in Australia; or
(c) the ADI becomes unable to meet its
obligations or suspends payment.
Note: For information about another circumstance in
which APRA may take control of the business of an ADI, see section 65.
(1A) The regulations may specify that a
particular form of support for an ADI is not to be considered external support
for the purposes of paragraph (1)(b).
(2) Throughout this Subdivision and
Subdivision B, the term ADI statutory manager is used. It refers
to the entity in control of an ADI’s business under this Subdivision. That entity
will be either APRA or an administrator of an ADI’s business appointed by APRA.
Priorities for application of assets of ADI in Australia
(3) If an ADI becomes unable to meet its
obligations or suspends payment, the assets of the ADI in Australia are to be
available to meet the ADI’s liabilities in the following order:
(a) first, the ADI’s liabilities (if
any) to APRA because of the rights APRA has against the ADI because of
section 16AI;
(b) second, the ADI’s debts (if any)
to APRA under section 16AO;
(c) third, the ADI’s deposit
liabilities in Australia (other than any such liabilities covered under
paragraph (a));
(d) fourth, the ADI’s other
liabilities (in the order of their priority apart from this subsection).
Note: Subsection (3) applies whatever other
consequences flow from the ADI becoming unable to meet its liabilities or
suspending payment (such as investigation of the ADI’s affairs, or control of
its business, under this Division, or winding up of the ADI).
ADI’s assets must at least equal its deposit
liabilities
(4) An ADI is guilty of an offence if:
(a) it does not hold assets (excluding
goodwill) in Australia of a value that is equal to or greater than the total
amount of its deposit liabilities in Australia; and
(b) APRA has not authorised the ADI to
hold assets of a lesser value.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(5) An offence against subsection (4) is
an indictable offence.
(6) If the circumstances relating to the
asset holdings of an ADI are such that give rise to the ADI committing an
offence against subsection (4), the ADI is guilty of an offence against
that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the ADI committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
13B
Investigators—ADI must provide information and facilities
(1) An investigator of the affairs of an ADI
under section 13 or 13A is entitled to have access to the books, accounts
and documents of the ADI, and to require the ADI to give the investigator
information or facilities to conduct the investigation.
(1A) An ADI commits an offence if:
(a) the ADI does not give the
investigator access to its books, accounts and documents; or
(b) the ADI fails to comply with a
requirement made under subsection (1) for the provision of information or
facilities.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1B) If the ADI does or fails to do an act in
circumstances that give rise to the ADI committing an offence against subsection (1A),
the ADI is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the ADI committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(2) Part 6 of the Australian
Prudential Regulation Authority Act 1998 prohibits certain disclosures of
information received by investigators under this Act.
13BA
Start of control of ADI’s business by ADI statutory manager
(1) After the decision that an ADI statutory
manager will take control of an ADI’s business is made, APRA must give the ADI
written notice that the ADI statutory manager will take, or is taking, control
of the business.
Note: Subsections 15A(4) and 16A(3) also require
APRA to give notice of the taking of control.
(2) An ADI statutory manager takes control of
an ADI’s business:
(a) at the time specified in a notice
under this section as the time when the ADI statutory manager takes control of
the business (which must not be earlier than the notice is given); or
(b) if a notice under this section
does not specify a time as the time when the ADI statutory manager takes
control of the business—at the time the notice is given.
(3) A notice under subsection (1) is not
a legislative instrument.
13C
ADI statutory managers—termination of control
Conditions necessary for termination of control
(1) If APRA assumes control of an ADI’s
business or appoints an administrator of an ADI’s business, APRA must ensure
that either it or an administrator of the ADI’s business has control of the
ADI’s business until:
(a) the following conditions are
satisfied:
(i) the ADI’s deposit
liabilities in Australia have been repaid or APRA is satisfied that suitable
provision has been made for their repayment; and
(ii) APRA considers that it
is no longer necessary for it or an administrator to remain in control of the
ADI’s business; or
(b) APRA considers that the ADI is
insolvent and is unlikely to be returned to solvency within a reasonable time,
and APRA has applied for the ADI to be wound up under the Corporations Act
2001 (see section 14F).
A termination of control that is permitted under this
section is called an ultimate termination of control.
Note: This provision does not prevent a change, or
changes, between control of an ADI’s business by APRA and an administrator or
between administrators.
Events to precede termination
(2) Before making an ultimate termination of
control by an ADI statutory manager of an ADI’s business, APRA must:
(a) ensure that directors of the ADI
have been appointed or elected under the ADI’s constitution at a meeting called
by the ADI statutory manager in accordance with the ADI’s constitution; or
(b) appoint directors of the ADI by
instrument in writing; or
(c) ensure that a liquidator for the
ADI has been appointed.
Power to terminate control
(3) If the requirements in subsections (1)
and (2) are satisfied, APRA may by instrument in writing make an ultimate
termination of control of an ADI’s business by an ADI statutory manager.
(4) If the ADI statutory manager at the time
of the termination is an administrator, the instrument of termination also
operates as a termination of the appointment of the administrator. A copy of
the instrument must be given to the administrator. However, mere failure to
give the copy to the administrator does not affect the termination of the
appointment.
Period of director’s appointment
(5) If a director is elected or appointed
under subsection (2), the director takes office on the termination of the
ADI statutory manager’s control of the ADI’s business. If the director was
appointed by APRA, the director holds office until the ADI’s next annual
general meeting, subject to any terms and conditions imposed by APRA on the
director’s appointment. If the director was appointed or elected under the
ADI’s constitution, the constitution governs the appointment.
Note: For further information about what happens
when an ADI statutory manager is in control of an ADI’s business, see
Subdivision B.
Subdivision B—Provisions dealing with control of an ADI’s business by an
ADI statutory manager
14A
ADI statutory manager’s powers and functions
ADI statutory manager’s powers and functions include
powers and functions of board
(1) An ADI statutory manager has the powers
and functions of the members of the board of directors of the ADI (collectively
and individually), including the board’s powers of delegation.
Note: When an ADI statutory manager takes control of
the business of an ADI, the directors of the ADI cease to hold office (see
section 15).
ADI statutory manager’s power to obtain information
(2) An ADI statutory manager may, for the
purposes of this Division, require a person who has, at any time, been an
officer of the ADI to give the ADI statutory manager any information relating
to the business of the ADI that the ADI statutory manager requires. A
requirement to give information may include a requirement to produce books,
accounts or documents.
(2A) A person who is or has been an officer of
an ADI is guilty of an offence if:
(a) there is an ADI statutory manager
in relation to the ADI; and
(b) under subsection (2), the ADI
statutory manager requires the person to give information or to produce books,
accounts or documents; and
(c) the person fails to comply with
the requirement.
Maximum penalty: Imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose a fine instead of, or in addition to, a term of imprisonment.
The maximum fine a court may impose is worked out as provided in that
subsection.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the maximum fine worked out as
mentioned in Note 2.
(3) An individual is not excused from
complying with a requirement under subsection (2) to give information on
the ground that doing so would tend to incriminate the individual or make the
individual liable to a penalty.
(4) If:
(a) before giving information in
compliance with a requirement under subsection (2), an individual claims
that giving the information might tend to incriminate the individual or make
the individual liable to a penalty; and
(b) giving the information might in
fact tend to incriminate the individual or make the individual so liable;
the information given in compliance with the requirement
is not admissible in evidence against the individual in a criminal proceeding
or a proceeding for the imposition of a penalty, other than a proceeding in
respect of the falsity of the information.
(4A) Subsections (3) and (4) apply to the
production of books, accounts or documents in a corresponding way to the way in
which they apply to the giving of information.
ADI statutory manager’s power to sell whole or part of
ADI’s business
(5) An ADI statutory manager may sell or
otherwise dispose of the whole or any part of the ADI’s business. The sale or
disposal may occur on any terms and conditions that the ADI statutory manager
considers appropriate.
ADI statutory manager’s powers to alter ADI’s
constitution etc.
(5A) An ADI statutory manager may, if the ADI
concerned is registered under the Corporations Act 2001, alter the ADI’s
constitution, rules or other arrangements for governance if the alteration:
(a) is necessary or convenient for
enabling or facilitating the performance of the ADI statutory manager’s
functions and duties, or the exercise of the ADI statutory manager’s other
powers, under this Division in relation to the ADI; and
(b) promotes:
(i) the protection of
depositors of the ADI; and
(ii) financial system
stability in Australia.
(5B) An ADI statutory manager may do an act
under subsection (5A) despite:
(a) the Corporations Act 2001;
and
(b) the ADI’s constitution; and
(c) any contract or arrangement to
which the ADI is party; and
(d) any listing rules (as defined in
section 761A of the Corporations Act 2001) of a financial market
(as defined in that section) in whose official list the ADI is included.
Interpretation
(6) In this section:
officer, in relation to an ADI, has the same
meaning as in section 11CG.
14AA
ADI statutory manager’s additional powers to facilitate recapitalisation
Powers
(1) An ADI statutory manager of an ADI that
is a company that has a share capital and is registered under the Corporations
Act 2001 may do one or more of the following acts on terms determined by
the ADI statutory manager:
(a) issue shares, or rights to acquire
shares, in the company;
(b) cancel shares, or rights to
acquire shares, in the company;
(c) reduce the company’s share capital
by cancelling any paid‑up share capital that is not represented by
available assets;
(d) sell shares, or rights to acquire
shares, in the company;
(e) vary or cancel rights or
restrictions attached to shares in a class of shares in the company.
Note: Before doing such an act, the ADI statutory
manager will usually need to get and consider a report on the fair value of
each share or right concerned: see section 14AB.
Giving company members notice of exercise of powers
(2) As soon as practicable after doing an act
described in paragraph (1)(a), (b), (c) or (e) or subsection (3), the
ADI statutory manager must give written notice to the persons who were members
(under section 231 of the Corporations Act 2001) of the company
just before the act, identifying the act and explaining its effect on their
interests as members.
(3) One of the acts to which
subsection (2) relates is the offering of shares, or rights to acquire
shares, in the company for sale under paragraph (1)(d).
Exercise of powers despite other laws etc.
(4) An ADI statutory manager may do an act
under subsection (1) despite:
(a) the Corporations Act 2001; and
(b) the company’s constitution; and
(c) any contract or arrangement to
which the company is party; and
(d) any listing rules (as defined in
section 761A of the Corporations Act 2001) of a financial market
(as defined in that section) in whose official list the company is included.
14AB
Considering report before acting under section 14AA
Getting and considering report on fair value of shares
or rights
(1) Before determining terms for an act under
subsection 14AA(1), the ADI statutory manager must:
(a) obtain a report meeting the
requirements in subsection (2) of this section on the fair value of the
shares or rights concerned from an expert who is not an associate of the ADI
statutory manager, or of the company, under Division 2 of Part 1.2 of
the Corporations Act 2001; and
(b) consider the report;
unless APRA determines under subsection (8) that this
subsection does not apply in relation to that act relating to those shares or
rights.
Content of report
(2) The report must set out:
(a) the amount that is, in the
expert’s opinion, the fair value for each share or right concerned; and
(b) the reasons for forming the
opinion; and
(c) any relationship between the
expert and any of the following persons:
(i) the ADI statutory
manager;
(ii) a person who is an
associate of the ADI statutory manager under Division 2 of Part 1.2
of the Corporations Act 2001;
(iii) the ADI;
(iv) a person who is an
associate of the ADI under Division 2 of Part 1.2 of the Corporations
Act 2001;
including any circumstances in
which the expert gives them advice, or acts on their behalf, in the proper
performance of the functions attaching to the expert’s professional capacity or
business relationship with them; and
(d) any financial or other interest of
the expert that could reasonably be regarded as being capable of affecting the
expert’s ability to give an unbiased opinion in relation to the matter being
reported on.
Determining fair value of shares
(3) In determining for the purposes of
paragraph (2)(a) the amount that is, in the expert’s opinion, the fair
value for each share concerned, the expert must:
(a) first, assess the value of the
company as a whole, in accordance with the assumptions (if any) notified to the
expert by the Minister for the valuation of the company; and
(b) then allocate that value among the
classes of shares in the company that either have been issued or that the ADI
statutory manager proposes to issue (taking into account the relative financial
risk, and voting and distribution rights, of the classes); and
(c) then allocate the value of each
class pro rata among the shares in that class that either have been issued or
that the ADI statutory manager proposes to issue (without allowing a premium or
applying a discount for particular shares in that class).
Assumptions for valuation of company
(4) The Minister may give the expert written
notice of assumptions for the valuation of the company. The Minister may, by
further written notice given to the expert, revoke, but not vary, notice of the
assumptions. A notice under this subsection is not a legislative instrument.
Determining fair value of rights
(5) In determining for the purposes of
paragraph (2)(a) the amount that is, in the expert’s opinion, the fair
value for each right concerned, the expert must act in accordance with the
assumptions (if any) notified to the expert by the Minister for the valuation
of the right.
Assumptions for valuation of rights
(6) The Minister may give the expert written
notice of assumptions for the valuation of the rights concerned. The Minister
may, by further written notice given to the expert, revoke, but not vary,
notice of the assumptions. A notice under this subsection is not a legislative
instrument.
Contravention does not invalidate act
(7) A contravention of subsection (1),
(2), (3), (5) or (9) does not affect the validity of anything done under
section 14AA.
Exemption from subsection (1)
(8) APRA may determine in writing that
subsection (1) does not apply in relation to an act relating to shares or
rights if APRA is satisfied that delaying the act to enable compliance with
that subsection in relation to the act would detrimentally affect:
(a) depositors with the ADI concerned;
and
(b) financial system stability in Australia.
(9) APRA must:
(a) publish a copy of a determination
under subsection (8) in the Gazette; and
(b) give a copy of a determination
under subsection (8) to the ADI statutory manager concerned (unless that
manager is APRA).
(10) A determination made under
subsection (8) is not a legislative instrument.
14AC
Act under section 14AA not ground for denying obligation
(1) This section applies if an ADI is party
to a contract, whether the proper law of the contract is Australian law
(including the law of a State or Territory) or law of a foreign country
(including the law of part of a foreign country).
(2) The fact that an ADI statutory manager
does an act under subsection 14AA(1) relating to the ADI does not allow the
contract, or any other party to the contract, to do any of the following:
(a) deny any obligations under that
contract;
(b) accelerate any debt under that
contract;
(c) close out any transaction relating
to that contract.
14B
Administrator in control—additional powers to recommend action by APRA
Types of recommendation
(1) An administrator of an ADI’s business may
make any of the following recommendations to APRA, by instrument in writing
given to APRA:
(a) that APRA make a particular
direction under Division 1BA in respect of the ADI;
(b) if the administrator considers that
the ADI is insolvent and could not be restored to solvency within a reasonable
period:
(i) that APRA apply under
section 14F to the Federal Court of Australia for an order that the ADI be
wound up; or
(ii) that APRA revoke the
ADI’s section 9 authority.
Effect of recommendation
(2) If an administrator of an ADI’s business
makes a recommendation under this section, APRA must consider the
recommendation but is not required to act on it.
14C
ADI statutory manager’s liabilities and duties
Liability for loss due to fraud etc.
(1) If an ADI incurs any loss because of any
fraud, dishonesty, negligence or wilful failure to comply with this Act by the
ADI statutory manager, the ADI statutory manager is liable for the loss.
Other losses
(2) An ADI statutory manager is not liable
for a loss that is not a loss incurred because of fraud, dishonesty, negligence
or wilful failure to comply with this Act. If the ADI statutory manager is an
administrator of the ADI’s business, the administrator must provide details of
the loss in a written report to APRA. However, failure to do so does not make
the administrator liable for the loss.
Subsections (1) and (2) apply instead of general
indemnity provisions
(3) The question whether an ADI statutory
manager is liable for a loss is to be determined in accordance with subsections (1)
and (2), rather than in accordance with section 70A of this Act or section 58
of the Australian Prudential Regulation Authority Act 1998.
ADI statutory manager not liable under section 588G
of the Corporations Act 2001
(4) An ADI statutory manager is not to be
taken to be a director for the purposes of section 588G of the Corporations
Act 2001.
Signpost to secrecy obligations
(5) Part 6 of the Australian
Prudential Regulation Authority Act 1998 prohibits certain disclosures of
information received by ADI statutory managers under this Act.
14D
Administrator in control—additional duties
Duty to report to APRA on request
(1) A person who is an administrator of an
ADI’s business must give to APRA a written report showing how the control of
the ADI’s business is being carried out if APRA requests that such a report be
provided to it. The report must be given to APRA within a reasonable time after
the request.
Duty to report to APRA on termination of appointment
(2) A person who was an administrator of an
ADI’s business must give to APRA a written report showing how the control of
the ADI’s business was carried out over the period of the administrator’s
appointment if the administrator’s appointment has been terminated. The report
must be given to APRA within a reasonable time of the termination.
Duty to follow directions by APRA
(3) APRA may give an administrator of an
ADI’s business a direction relating to the control of the ADI’s business, and
may alter such a direction. If a direction (including an altered direction) is
given to an administrator by APRA, the administrator must:
(a) act in accordance with the
direction; or
(b) immediately provide to APRA
information relating to the control of the ADI’s business and request APRA to
alter the direction.
(4) If an administrator of an ADI’s business
requests APRA to alter a direction and APRA considers the request then confirms
the direction, the administrator must act in accordance with the direction.
14DAA
Administrator in control—additional duties where action may affect financial
system stability in Australia
(1) If an administrator of an ADI’s business
has reasonable cause to believe that an action that the administrator proposes
to take is an action that is likely to have a detrimental effect on financial
system stability in Australia, the administrator must:
(a) notify APRA as soon as
practicable; and
(b) obtain APRA’s written consent
before taking the action.
(2) The administrator is not required to
comply with subsection (1) if the administrator is satisfied that it is
not reasonably practicable to do so, having regard to urgency or other similar
constraint.
(3) The performance of a function or the
exercise of a power by an administrator is not invalid merely because of a
failure by the administrator to comply with this section.
14DA
Administrator in control—additional duties where action may affect financial
system stability in New Zealand
(1) If an administrator of an ADI’s business
has reasonable cause to believe that an action that the administrator proposes
to take is an action that is likely to have a detrimental effect on financial
system stability in New Zealand, the administrator must:
(a) notify APRA as soon as
practicable; and
(b) obtain APRA’s written consent
before taking the action.
(2) The administrator is not required to
comply with subsection (1) if the administrator is satisfied that it is
not reasonably practicable to do so, having regard to urgency or other similar constraint.
(3) The performance of a function or the
exercise of a power by an administrator is not invalid merely because of a
failure by the administrator to comply with this section.
(4) If APRA receives a notice under
paragraph (1)(a), it must provide details of the notice to every
prescribed New Zealand authority that APRA considers to be relevant in the
circumstances before granting written consent to the administrator.
(5) APRA is not required to comply with
subsection (4) if APRA is satisfied that it is not reasonably practicable
to do so, having regard to urgency or other similar constraint.
(6) The performance of a function or the
exercise of a power by APRA is not invalid merely because of a failure by APRA
to comply with this section.
(7) An administrator of an ADI’s business may
consult a prescribed New Zealand authority about whether an action the
administrator proposes to take is likely to have a detrimental effect on
financial system stability in New Zealand.
14E
Termination of administrator’s appointment
(1) If an administrator of an ADI’s business
contravenes a requirement of this Division, APRA may terminate the
administrator’s appointment.
(2) The terms and conditions of the
administrator’s appointment may provide for termination in circumstances in
addition to those mentioned in subsection (1).
(3) This section has effect subject to
section 13C.
14F
APRA’s powers to apply for ADI to be wound up
Power to apply for ADI to be wound up
(1) APRA may apply to the Federal Court of
Australia for an order that an ADI be wound up if:
(a) an ADI statutory manager is in
control of the ADI’s business; and
(b) APRA considers that the ADI is
insolvent and could not be restored to solvency within a reasonable period.
(2) The winding up of the ADI is to be
conducted in accordance with the Corporations Act 2001 under which the
ADI is incorporated or is taken to be incorporated.
Notifying Minister of application
(3) If APRA makes an application under
subsection (1), APRA must inform the Minister of the application as soon
as possible.
Note: Once informed, the Minister may choose to
apply Subdivision C of Division 2AA in relation to the ADI so some
depositors can receive payments earlier than they would in the winding up of
the ADI.
15
Effect on directors of ADI statutory manager taking control of an ADI’s
business
(1) The directors of an ADI cease to hold
office when an ADI statutory manager takes control of the ADI’s business.
Note: For the definition of director,
see subsection (4).
(2) A director of an ADI must not be
appointed or elected while an ADI statutory manager is in control of the ADI’s
business unless the appointment is made under subsection 13C(2).
(3) If a person who ceased to hold office
under subsection (1), or a purported director of the ADI appointed or
elected in contravention of subsection (2), purports to act in relation to
the ADI’s business while an ADI statutory manager has control of the ADI’s
business, those acts are invalid and of no effect.
(4) For the purposes of this section, director
has the same meaning as it has in the Corporations Act 2001.
15A
Effect on external administrator of ADI statutory manager taking control of an
ADI’s business
(1) The appointment of an external
administrator of an ADI is terminated when an ADI statutory manager takes
control of the ADI’s business.
Note: For the definition of external
administrator, see subsection (5).
(2) An external administrator of an ADI must
not be appointed while an ADI statutory manager is in control of the ADI’s
business unless APRA approves the appointment.
(3) If a person who ceased to be the external
administrator of an ADI under subsection (1), or a purported external
administrator of the ADI appointed in contravention of subsection (2),
purports to act in relation to the ADI’s business while an ADI statutory
manager has control of the ADI’s business, those acts are invalid and of no
effect.
(4) APRA must inform the external
administrator of an ADI that an ADI statutory manager will take control of the
ADI’s business as soon as possible after the decision that an ADI statutory
manager will take control of the ADI’s business is made. However, failure to
inform the external administrator does not affect the operation of this
section.
15B
Effect on legal proceedings of ADI statutory manager taking control of an ADI’s
business
(1) A person cannot begin or continue a
proceeding in a court against an ADI while an ADI statutory manager is in
control of the ADI’s business unless:
(a) the court grants leave on the
ground that the person would be caused hardship if leave were not granted; or
(b) APRA consents to the proceedings
beginning or continuing.
(1A) Subsection (1) does not apply to a
proceeding in respect of an offence or a contravention of a provision of a law
for which a pecuniary penalty (however described) may be imposed.
(2) A person intending to apply for leave of
the court under paragraph (1)(a) must give APRA at least 10 days notice of
the intention to apply. APRA may apply to the court to be joined as a party to
the proceedings for leave.
(3) In this section, a reference to a
proceeding against an ADI includes a reference to a cross‑claim or third
party claim against an ADI.
15C
ADI statutory manager being in control not grounds for denial of obligations
(1) This section applies if an ADI is party
to a contract, whether the proper law of the contract is Australian law
(including the law of a State or Territory) or law of a foreign country
(including the law of part of a foreign country).
(2) The fact that an ADI statutory manager is
in control of the ADI’s business does not allow the contract, or a party to the
contract, to do any of the following:
(a) deny any obligations under that
contract;
(b) accelerate any debt under that
contract;
(c) close out any transaction relating
to that contract.
15D
Continued application of other provisions
Neither the appointment of an
administrator of an ADI’s business under this Division nor the fact that an ADI
statutory manager is in control of an ADI’s business under this Division
affects:
(a) the continued operation of other
provisions of this Act or the operation of the Financial Sector (Collection
of Data) Act 2001 in relation to the ADI; or
(b) the obligation of the ADI to
comply with those other provisions and that Act.
16
Costs of statutory management
(1) APRA’s costs (including costs in the
nature of remuneration and expenses) of being in control of an ADI’s business,
or of having an administrator in control of an ADI’s business, are payable from
the ADI’s funds and are a debt due to APRA.
(2) Despite anything contained in any law
relating to the winding‑up of companies, but subject to subsection
13A(3), debts due to APRA by an ADI under subsection (1) have
priority in a winding‑up of the ADI over all other unsecured debts.
16A
APRA must report to Treasurer and publish information about statutory
management
Reports to the Treasurer
(1) If the Treasurer requests APRA to give
him or her a written report concerning the activities of ADI statutory managers
in respect of specified ADIs or in respect of a specified period, APRA must
give the Treasurer such a written report within a reasonable time after the
Treasurer requests it.
(2) If an ADI statutory manager takes control
of an ADI’s business during a financial year, or if there is an ultimate
termination of control during a financial year, APRA must give the Treasurer a
written report within a reasonable time after the end of the financial year
concerning activities of all ADI statutory managers and each ultimate
termination of control that occurred during that financial year.
Requirement to publish notices in Gazette
(3) If APRA:
(a) takes control of an ADI’s
business; or
(b) appoints an administrator of an
ADI’s business; or
(c) makes an ultimate termination of
control in respect of an ADI’s business;
APRA must publish notice of that fact in
the Gazette. However, mere failure to publish such a notice does not
affect the validity of the act.
16AA
Exceptions to Part IV of the Trade Practices Act 1974
For the purposes of subsection 51(1) of
the Trade Practices Act 1974, the following things are specified and
specifically authorised:
(a) the acquisition of assets in a
sale or disposal of the whole or part of the business of an ADI under this
Division by an ADI statutory manager in control of the ADI’s business (whether
the assets are shares in another body corporate or other assets);
(b) the acquisition of shares in an
ADI as a direct result of:
(i) the issue or sale of
the shares under this Division by an ADI statutory manager in control of the
ADI’s business; or
(ii) the exercise of a
right to acquire shares that was issued or sold under this Division by an ADI
statutory manager in control of the ADI’s business.
Division 2AA—Financial claims scheme for account‑holders with
insolvent ADIs
Subdivision A—Preliminary
16AB
Purpose of this Division
The main purpose of this Division is to
provide for a scheme that:
(a) allows the Minister to make a
declaration about an ADI that APRA has sought to have wound up for insolvency;
and
(b) entitles account‑holders who
have certain protected accounts with a declared ADI to be paid certain amounts
to maintain the account‑holders’ liquidity before they would receive
payment in a winding up of the ADI; and
(c) substitutes APRA for those account‑holders
as a creditor of the declared ADI to the extent of the entitlements.
16AC
APRA’s functions relating to this Division
APRA’s functions include:
(a) meeting entitlements under
Subdivision C; and
(b) preparing, and assisting the
Minister to prepare, for the application of that Subdivision in relation to
ADIs; and
(c) meeting APRA’s other obligations
under this Division and the regulations made for the purposes of this Division.
Subdivision B—Declaration of ADI
16AD
Declaration that Subdivision C applies in relation to ADI
(1) The Minister may declare that Subdivision
C applies in relation to a specified ADI if APRA has applied under
section 14F for the ADI to be wound up.
Note: The Minister cannot make a declaration
relating to a foreign ADI because APRA cannot apply for a foreign ADI to be
wound up: see section 11E.
Declaration to specify amount for meeting entitlements
(2) The declaration must also specify the
amount (if any) that is to be credited to the Financial Claims Scheme Special
Account in connection with the application of Subdivision C in relation to the
declared ADI. If APRA’s application under section 14F was made on or after
12 October 2011, the amount must not be more than $20,000,000,000.
Declaration to specify amount for administration
(3) The declaration must also specify the
amount (if any) that is to be credited to the APRA Special Account in
connection with the administration of this Division in relation to the declared
ADI. The amount must not be more than $100,000,000.
Amendment of specification of amounts
(4) The Minister may amend a declaration made
under subsection (1), but only to change the specification of an amount
under subsection (2) or (3), within the limit set in that subsection.
Declaration cannot be revoked
(5) The Minister cannot revoke a declaration
made under subsection (1).
Declaration or amendment not disallowable or subject to
expiry
(6) A declaration made under
subsection (1), or an amendment of the declaration, is a legislative
instrument, but neither section 42 (disallowance) nor Part 6
(sunsetting) of the Legislative Instruments Act 2003 applies to the
declaration or amendment.
Effect of declaration or amendment
(7) The declaration or amendment:
(a) takes effect from the time it is
made, despite subsections 12(1) and (2) of the Legislative Instruments Act
2003; and
(b) has effect according to its terms.
Declaration not to specify ADI by reference to class
(8) Subsection 13(3) of the Legislative
Instruments Act 2003 does not apply to a declaration under
subsection (1) specifying an ADI.
Note: This ensures that a declaration must specify
an ADI individually, and cannot specify it by reference to a class of ADIs.
16AE
Advice and information for decision on making declaration
(1) The Minister may give APRA, ASIC or the
Reserve Bank a written request for advice or information about a matter
relevant to making a decision about making a declaration under
section 16AD (including a matter relating to the affairs of an ADI).
(2) As soon as reasonably practicable after
being given the request, APRA, ASIC or the Reserve Bank must give the Minister
the advice or information about the matter.
(3) In making the decision, the Minister must
take into account the advice and information (if any) that he or she has been
given before making the decision. This does not limit what the Minister may
take into account in making the decision.
Subdivision C—Payment of account‑holders with declared ADI
16AF
Payment of account‑holders with declared ADI
(1) An account‑holder who has a
protected account with a net credit balance with a declared ADI at the
declaration time is entitled to be paid by APRA an amount equal to the sum of:
(a) that balance; and
(b) the interest (if any) accrued by,
but not credited to, the account‑holder in connection with the protected
account before the declaration time;
increased or decreased in accordance with the regulations
to take account of clearance, within the period prescribed by the regulations,
of transactions connected with the protected account and entered into before
the declaration time.
Joint protected accounts
(2) If the account mentioned in
subsection (1) is held jointly by 2 or more account‑holders with the
declared ADI, that subsection entitles each of the account‑holders to an
equal share of the amount to which one of those account‑holders would be
entitled if it alone had the account with the declared ADI.
16AG
Limit on payments to account‑holder with declared ADI
(1) Despite section 16AF, an account‑holder
is not entitled under that section to be paid, in connection with the protected
account or protected accounts the account‑holder has with a particular
declared ADI at a particular time, one or more amounts totalling more than the
limit prescribed by, or worked out under, the regulations.
(2) The regulations may prescribe, or provide
for working out, different limits for the purposes of subsection (1)
relating to account‑holders in different classes.
(3) Despite section 16AF, if:
(a) the account‑holder has 2 or
more protected accounts with the declared ADI at that time; and
(b) subsection (1) of this
section reduces the total amount to which the account‑holder would
otherwise be entitled under section 16AF in connection with those
protected accounts;
APRA may determine in writing, for each of the protected
accounts, the amount (if any) of the entitlement under that section connected
with the protected account (so that the total of the entitlements equals the
limit prescribed by, or worked out under, the regulations for the purposes of
subsection (1) of this section).
Note: Amounts may be determined by reference to a
class, or more than one class, of accounts: see subsection 46(3) of the Acts
Interpretation Act 1901.
(4) In making the determination, the
desirability of the account‑holder receiving its entitlements as early as
possible is to be taken into account. This does not limit the matters that may
be taken into account in making a determination.
16AH
Payment
Various ways of meeting entitlement
(1) An account‑holder’s entitlement
under this Subdivision to be paid an amount may be met:
(a) by paying the amount to the
account‑holder as a single amount or in instalments determined by APRA;
or
(b) by applying the amount, as a
single amount or in instalments determined by APRA, for the account‑holder’s
benefit, by establishing an account with an ADI on behalf of the account‑holder
or in another way; or
(c) by paying part of the amount to
the account‑holder and applying the rest of the amount for the account‑holder’s
benefit.
(2) The regulations may make provision for or
in relation to the ways in which account‑holders’ entitlements under this
Subdivision to be paid amounts may be met.
Establishment of account by APRA for meeting
entitlement
(3) APRA may establish, on behalf of an
account‑holder who has an entitlement under this Subdivision, an account
with an ADI (except a declared ADI) for the purposes of wholly or partly
meeting the entitlement.
(4) Subsection (3) has effect:
(a) whether or not the account‑holder
consents to the establishment of the account; and
(b) despite any other law of the
Commonwealth relating to the establishment of such an account.
(5) If an account‑holder has an
entitlement under this Subdivision connected with a protected account of a kind
prescribed by the regulations for the purposes of this subsection, APRA must
establish an account of the same kind on behalf of the account‑holder for
the purposes of wholly or partly meeting the entitlement.
Act to meet entitlement is not provision of designated
service
(6) An act done by any of the following
persons for the purposes of meeting an account‑holder’s entitlement under
this Subdivision is taken, for the purposes of the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006, not to be the
provision of a designated service by the person:
(a) APRA;
(b) the Reserve Bank.
Note: One effect of subsection (6) is that the
person’s act does not make the person a reporting entity for the purposes of
the Anti‑Money Laundering and Counter‑Terrorism Financing Act
2006.
Exemption from section 32 of Anti‑Money
Laundering Act
(7) Section 32 of the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006 does not apply to
a designated service described in item 1 of the table in subsection 6(2)
of that Act provided by an ADI as a result of the exercise of APRA’s power
under subsection (3) of this section (whether or not subsection (5)
required APRA to exercise that power).
16AI
Substitution of APRA for account‑holder as ADI’s creditor
(1) When an ADI becomes a declared ADI, then,
by force of this subsection, the right of an account‑holder who has a
protected account with the ADI to be paid an amount by the ADI in connection
with the account:
(a) is reduced to the extent of the
account‑holder’s entitlement under this Subdivision connected with the
account; and
(b) to the extent of the reduction,
becomes a right of APRA.
(2) APRA may exercise or assign a right it
has under paragraph (1)(b).
Note: Under section 11 of the Australian
Prudential Regulation Authority Act 1998, APRA’s property is generally held
on behalf of the Commonwealth.
Subdivision D—Administration
16AJ
Requiring assistance
APRA may, by written notice given to any
of the following persons, require the person to give APRA such reasonable
assistance in the performance of its functions, and the exercise of its powers,
under this Division as is specified:
(a) an ADI (whether or not it is a
declared ADI);
(b) an administrator appointed under
subsection 13A(1) to take control of an ADI’s business;
(c) a liquidator (including a
provisional liquidator) appointed in connection with the winding up, or
proposed winding up, of an ADI.
Note: APRA may amend or vary the requirement in
writing: see subsection 33(3) of the Acts Interpretation Act 1901.
16AK
Obtaining information relevant to determining and paying entitlements
(1) APRA may, by written notice given to:
(a) an ADI (whether or not it is a
declared ADI); or
(b) an administrator appointed under
subsection 13A(1) to take control of an ADI’s business; or
(c) a liquidator (including a
provisional liquidator) appointed in connection with the winding up, or
proposed winding up, of an ADI;
require the ADI, administrator or liquidator to give a
specified person specified information about an account‑holder relevant
to one or more of the actions described in subsection (4) in a specified
way within a reasonable specified time for the person to use in taking one or
more of those actions.
Note: APRA may amend or vary the requirement in
writing: see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The person specified in the requirement
must be one of the following:
(a) APRA;
(b) an APRA member whose duties relate
to an action described in subsection (4);
(c) an APRA staff member whose duties
relate to an action described in subsection (4);
(d) a person to whom APRA has
delegated a power or function under this Division that relates to an action
described in subsection (4);
(e) a person who is an officer or
employee of a person described in paragraph (d) and whose duties relate to
an action described in subsection (4).
(3) The information specified in the
requirement may be or include either or both of the following:
(a) personal information about the
account‑holder (if he or she is an individual);
(b) the tax file number (as defined in
section 202A of the Income Tax Assessment Act 1936) of the account‑holder.
This does not limit the information that may be specified
in the requirement.
(4) The actions are as follows:
(a) identifying an account‑holder
who may have an entitlement under Subdivision C;
(b) determining whether an account‑holder
has an entitlement under Subdivision C;
(c) determining the amount of an
entitlement under Subdivision C;
(d) meeting an entitlement under
Subdivision C;
(e) establishing an account under
section 16AH on behalf of an account‑holder with an entitlement
under Subdivision C;
(f) making a disclosure required by
section 16AT in connection with the establishment of an account under
section 16AH by APRA on behalf of an account‑holder with an
entitlement under Subdivision C;
(g) assessing whether and how
information could be provided by an ADI (or a liquidator of the ADI, if one is
appointed) to enable the actions described in paragraphs (a), (b), (c),
(d), (e) and (f) to be taken if the ADI were to become a declared ADI.
(5) Subsection (1) does not apply in
relation to a foreign ADI.
(6) This section does not limit
section 16AJ.
16AL
Enforcing requirement for assistance or information
Requirement made of ADI—civil penalty
(1) An ADI must comply with a requirement
made of it under section 16AJ or subsection 16AK(1).
Civil penalty: 10,000 penalty units.
Requirement made of ADI—offence
(2) An ADI commits an offence if:
(a) it does, or fails to do, an act;
and
(b) the doing of the act, or the
failure to do the act, results in a contravention of a requirement made of the
ADI under section 16AJ or subsection 16AK(1).
Penalty: 200 penalty units.
(3) An offence against subsection (2) is
an indictable offence.
Note: Section 4K (Continuing and multiple
offences) of the Crimes Act 1914 applies to an offence against
subsection (2) relating to subsection 16AK(1), so an ADI commits an
offence for each day it does not comply with a requirement under that
subsection (to give information within a particular time).
Requirement made of ADI—offence by officer
(4) An officer (as defined in section 9
of the Corporations Act 2001) of an ADI commits an offence if:
(a) the officer fails to take
reasonable steps to ensure that the ADI complies with a requirement made of it
under section 16AJ or subsection 16AK(1); and
(b) the officer’s duties include
ensuring that the ADI complies with the requirement.
Penalty: 50 penalty units.
(5) Subsection (4) does not apply to an
officer who is a liquidator (including a provisional liquidator) of the ADI.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal
Code.
(6) If an officer of an ADI fails to take
reasonable steps to ensure that the ADI complies with a requirement made of it
under subsection 16AK(1) in circumstances that give rise to the officer
committing an offence against subsection (4) of this section, the officer
commits an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the officer committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection does not affect the
application of section 4K of the Crimes Act 1914 to other offences
against this Act (including subsection (2)) or the regulations.
Liquidator to comply with requirement made of
liquidator
(7) A liquidator (including a provisional
liquidator) must comply with a requirement made of the liquidator under
section 16AJ or subsection 16AK(1).
Note: Action may be taken under the Corporations
Act 2001 against a liquidator who does not comply with such a requirement.
16AM
Recovery of overpayments
The regulations may make provision for
and in relation to the recovery by APRA of the excess of an amount paid to, or
applied for the benefit of, an account‑holder purportedly to meet an
entitlement of the account‑holder under Subdivision C over the account‑holder’s
entitlement (if any) under that Subdivision.
16AN
APRA may delegate functions and powers under this Division
(1) APRA may, by writing under its seal,
delegate any or all of APRA’s functions and powers under this Division to a
person.
(2) In performing or exercising functions or
powers delegated under subsection (1), the delegate must comply with any
directions given by APRA.
(3) This section does not limit
section 15 of the Australian Prudential Regulation Authority Act 1998.
Note: Section 15 of the Australian
Prudential Regulation Authority Act 1998:
(a) makes the agreement of the Chair of ASIC a
condition for a delegation to an ASIC member or an ASIC staff member; and
(b) makes the agreement of the Governor of the
Reserve Bank a condition for a delegation to the Governor or Deputy Governor of
the Reserve Bank or to an officer of the Reserve Bank Service.
16AO
APRA’s costs of administration
(1) The costs incurred by APRA in relation to
the exercise of its powers and the performance of its functions under this
Division (whether by APRA or by a delegate) relating to a declared ADI are a
debt due by the declared ADI to APRA.
(2) The debt is admissible to proof against
the declared ADI in the winding up of the ADI.
(3) Subsection (1) does not apply to the
amounts of entitlements under Subdivision C.
Note: APRA may be able to recover those amounts
through the rights it acquires under section 16AI from the account‑holder.
Subdivision E—Account‑holder’s claims against ADI remaining after
entitlement
16AP
When this Subdivision applies
This Subdivision applies if:
(a) a court orders the winding up of
an ADI that becomes a declared ADI before, on or after the order is made; and
(b) on making the order, the court
appoints a liquidator of the ADI; and
(c) an account‑holder has an
entitlement under Subdivision C connected with a protected account the account‑holder
has with the ADI; and
(d) after the operation of
section 16AI of this Act, section 553C of the Corporations Act
2001 and, if relevant, section 554B of that Act, there is still a debt
payable by the ADI to the account‑holder, or a claim of the account‑holder
against the ADI, based on a right to be paid an amount by the ADI in connection
with the protected account.
16AQ
Liquidator may admit debt or claim without normal proof
(1) The liquidator may admit the debt or
claim even if it has not been proved by the account‑holder in accordance
with the Corporations Act 2001 and regulations made under that Act.
(2) However, the liquidator must act in
accordance with the regulations (if any) made for the purposes of this
subsection in deciding whether to admit or reject the debt or claim, and the
extent to which to admit or reject the debt or claim.
Note: This section overrides any requirements
imposed on the liquidator by the Corporations Act 2001 and regulations
under that Act in relation to proof of the debt or claim and a decision whether
to admit or reject the debt or claim: see section 70B of this Act.
16AR
How liquidator must pay distributions to account‑holder
(1) This section applies if, in the winding
up of the ADI, a distribution attributable to the protected account is payable
to the account‑holder and the protected account was of a kind prescribed
by the regulations for the purposes of this subsection.
(2) The liquidator must pay the distribution
(so far as it is attributable to the account) into an account of the same kind
that is held by the account‑holder with an ADI (except a declared ADI).
(3) If the account‑holder does not hold
an account of that kind, the liquidator must establish, on behalf of the
account‑holder, an account of that kind with an ADI (except a declared
ADI) for the payment of the distribution in accordance with
subsection (2).
(4) Subsection (3) empowers the
liquidator to establish the account:
(a) whether or not the account‑holder
consents to the establishment of the account; and
(b) despite any other law of the
Commonwealth relating to the establishment of such an account.
16AS
APRA may disclose relevant personal information to liquidator
Information about account‑holder’s entitlement
(1) APRA may disclose to the liquidator
personal information about the fact that the account‑holder has an
entitlement under Subdivision C, and the amount of that entitlement, for the
purpose of enabling the liquidator to decide whether to admit or reject the
debt or claim in whole or in part.
Information relevant to section 16AR
(2) APRA may disclose to the liquidator
personal information about the account‑holder for the purpose of enabling
the liquidator to determine whether subsection 16AR(2) or (3) applies and, if
it does, for complying with it.
Subdivision F—Disclosure of information relating to new accounts
16AT
APRA or liquidator to disclose information to ADI
(1) This section applies if, on behalf of an
account‑holder with an entitlement under Subdivision C:
(a) APRA establishes an account with
an ADI under section 16AH; or
(b) a liquidator establishes an
account with an ADI under section 16AR.
(2) In the circumstances prescribed by the
regulations, whichever of APRA and the liquidator established the account must
disclose to the ADI the information (if any) that:
(a) is connected with the
establishment of the account; and
(b) is prescribed by the regulations
for the purposes of this paragraph.
(3) The regulations may prescribe different
information in relation to different circumstances for disclosure.
(4) The information prescribed by the
regulations may be personal information about the account‑holder (if he
or she is an individual). This does not limit the information that may be
prescribed by the regulations.
Subdivision G—Exceptions to Part IV of the Trade Practices Act 1974
16AU
Exceptions to Part IV of the Trade Practices Act 1974
For the purposes of subsection 51(1) of
the Trade Practices Act 1974, the following things are specified and
specifically authorised:
(a) anything done in the exercise of
powers, or performance of functions, under this Division, or regulations made
for the purposes of this Division, except Subdivision E;
(b) anything done to enable or
facilitate the exercise of those powers or performance of those functions;
(c) anything incidental to the
exercise of those powers or performance of those functions.
Division 2A—Auditors of ADIs and authorised NOHCs and their subsidiaries
16B Auditors
to give information to APRA on request
Duty to give information when required
(1) APRA may, by notice in writing, require a
person who is, or has been, an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or
authorised NOHC; or
(d) if an ADI is a subsidiary of a
foreign corporation (whether or not the ADI is itself a foreign ADI):
(i) another subsidiary (a relevant
Australian‑incorporated subsidiary) of the foreign
corporation (other than a body mentioned in paragraph (a), (b) or (c)),
being a subsidiary that is incorporated in Australia; or
(ii) another subsidiary (a relevant
foreign‑incorporated subsidiary) of the foreign corporation
(other than a body mentioned in paragraph (a), (b) or (c)), being a
subsidiary that is not incorporated in Australia and carries on business in
Australia;
to provide information, or to produce books, accounts or
documents, to APRA about the ADI, authorised NOHC, subsidiary of the ADI or
authorised NOHC, or relevant Australian‑incorporated subsidiary, or about
the Australian operations of the relevant foreign‑incorporated
subsidiary, if APRA considers that the provision of the information, or the production of the books, accounts or
documents, will assist APRA in performing its functions under this Act.
(1A) A person is guilty of an offence if:
(a) under subsection (1), APRA
requires the person to provide information or to produce books, accounts or
documents; and
(b) the person fails to comply with
the requirement.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose a fine instead of, or in addition to, a term of imprisonment.
The maximum fine a court may impose is worked out as provided in that
subsection.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the maximum fine worked out as
mentioned in Note 2.
16BA
Requirement for auditors to give information about ADIs
Persons to whom requirements apply
(1) This section applies to a person who is
or has been an auditor of a body corporate that is:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or an
authorised NOHC; or
(d) if an ADI is a subsidiary of a
foreign corporation (whether or not the ADI is itself a foreign ADI):
(i) another subsidiary (a relevant
Australian‑incorporated subsidiary) of the foreign corporation
(other than a body mentioned in paragraph (a), (b) or (c)), being a
subsidiary that is incorporated in Australia; or
(ii) another subsidiary (a relevant
foreign‑incorporated subsidiary) of the foreign corporation
(other than a body mentioned in paragraph (a), (b) or (c)), being a
subsidiary that is not incorporated in Australia and carries on business in
Australia.
Matters requiring immediate notice
(2) If the person has reasonable grounds for
believing that:
(a) the body corporate is insolvent or
there is a significant risk that the body corporate will become insolvent; or
(b) an existing or proposed state of
affairs may materially prejudice the interests of:
(i) if the body corporate
is an ADI or a subsidiary of an ADI—the depositors of the ADI; or
(ii) if the body corporate
is an authorised NOHC or a subsidiary of an authorised NOHC—the depositors of
any ADI that is a subsidiary of the authorised NOHC; or
(iii) if the body corporate
is a relevant Australian‑incorporated subsidiary or a relevant foreign‑incorporated
subsidiary of a foreign corporation—the depositors of any ADI that is a
subsidiary of the foreign corporation;
the person must immediately notify APRA in writing of the
matter.
Offences in relation to matters requiring immediate
notice
(3) A person commits an offence if the person
contravenes subsection (2).
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if the person
contravenes subsection (2). This is an offence of strict liability.
Penalty: 60 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Defence if matter already notified
(5) Subsections (3) and (4) do not apply
to a person in relation to a matter referred to in subsection (2) if:
(a) the person becomes aware of the
matter because the person is informed of it by a director or senior manager of the
body corporate; and
(b) the director or senior manager
informs the person that the body corporate has notified APRA in writing of the
matter; and
(c) the person has no reason to
disbelieve the director or senior manager.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal
Code.
Matters requiring notice as soon as practicable
(6) If the
person has reasonable grounds for believing that:
(a) the
body corporate has failed or will fail to comply with:
(i) a provision of this
Act, the regulations or the Financial Sector (Collection of Data) Act 2001;
or
(ii) if the body corporate
is an ADI or authorised NOHC—a prudential standard; or
(iii) if the body corporate
is an ADI or authorised NOHC—a direction under Division 1BA of
Part II; or
(iv) if the body corporate
is an ADI—a condition of the body corporate’s section 9 authority; or
(v) if the body corporate
is an authorised NOHC—a condition of the body corporate’s NOHC authority; and
(b) the failure to comply is or will
be significant (see subsection (7));
the person must give APRA a written report about the
failure as soon as practicable, and in any event no later than 10 business
days.
(7) For the purposes of paragraph (6)(b),
a failure to comply is or will be significant if the failure is
or will be significant having regard to any one or more of the following:
(a) the number or frequency of similar
failures;
(b) the impact the failure has or will
have on the body corporate’s ability to conduct its business;
(c) the extent to which the failure
indicates that the body corporate’s arrangements to ensure compliance with this
Act, the prudential standards or the regulations might be inadequate;
(d) the actual or potential financial
loss arising or that will arise from the failure:
(i) if the body corporate
is an ADI—to the depositors of the body corporate; or
(ii) to the body corporate;
(e) any matters prescribed by the
regulations for the purposes of this paragraph.
Offences in relation to matters requiring notice as
soon as practicable
(8) A person commits an offence if the person
contravenes subsection (6).
Penalty: Imprisonment for 6 months.
(9) A person commits an offence if the person
contravenes subsection (6). This is an offence of strict liability.
Penalty: 60 penalty units.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Defence if failure already notified
(10) Subsections (8) and (9) do not apply
to a person in relation to a failure to comply referred to in
subsection (6) if:
(a) a director or senior manager of
the body corporate informs the person that the body corporate has informed APRA
in writing of the failure; and
(b) the person has no reason to
disbelieve the director or senior manager.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (10). See subsection 13.3(3) of the Criminal
Code.
Offence in relation to subsections (5) and (10)
(11) A person commits an offence if:
(a) the person is a director or senior
manager of a body corporate referred to in subsection (1); and
(b) the person knows that there are
reasonable grounds for believing a thing referred to in subsection (2) or
(6); and
(c) the person informs the auditor of
the body corporate that the body corporate has informed APRA in writing of the
thing; and
(d) the body corporate has not done
so.
Penalty: Imprisonment for 12 months.
16C
Auditor may provide information to APRA
A person
who is, or has been, an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or
authorised NOHC; or
(d) if an ADI is a subsidiary of a
foreign corporation (whether or not the ADI is itself a foreign ADI):
(i) another subsidiary (a relevant
Australian‑incorporated subsidiary) of the foreign
corporation (other than a body mentioned in paragraph (a), (b) or (c)),
being a subsidiary that is incorporated in Australia; or
(ii) another subsidiary (a relevant
foreign‑incorporated subsidiary) of the foreign
corporation (other than a body mentioned in paragraph (a), (b) or (c)),
being a subsidiary that is not incorporated in Australia and carries on
business in Australia;
may provide information,
or produce books, accounts or documents, to APRA about the ADI,
authorised NOHC, subsidiary of the ADI or authorised NOHC, or relevant
Australian‑incorporated subsidiary, or about the Australian operations of
the relevant foreign‑incorporated subsidiary, if the person considers
that the provision of the information, or
the production of the books, accounts or documents, to APRA will assist
APRA in performing its functions under this Act or the Financial Sector (Collection of Data) Act 2001.
Division 2B—Removal of auditors of ADIs
17
APRA may remove an auditor of an ADI
(1) This section applies to a person who is
an auditor of an ADI.
(2) APRA may direct (in writing) that an ADI
remove the person from the position if APRA is satisfied that the person:
(a) has failed to perform adequately
and properly the functions and duties of the position as required under this
Act or the prudential standards; or
(b) does not meet one or more of the
criteria for fitness and propriety set out in the prudential standards; or
(c) either:
(i) for a person who is a
disqualified person only because he or she was disqualified under
section 21—is disqualified from being or acting as an auditor of the ADI;
or
(ii) otherwise—is a
disqualified person.
(3) Before directing an ADI to remove a
person, APRA must give written notice to:
(a) the person; and
(b) the ADI;
giving each of them a reasonable opportunity to make
submissions on the matter.
(4) If a submission is made to APRA in response to the notice, APRA must have
regard to the submission and may discuss any matter contained in the submission
with such persons as it considers appropriate for the purpose of assessing the
truth of the matter.
(5) A notice given under subsection (3)
to a person or an ADI must state that any submissions made in response to the
notice may be discussed by APRA with other persons as mentioned in subsection (4).
(6) A direction takes effect on the day
specified in it, which must be not earlier than 7 days after it is made.
(7) If APRA directs an ADI to remove a
person, APRA must give a copy of the direction to the person and to the ADI.
(7A) An ADI
must comply with a direction under this section.
Note: For
enforcement of the direction, see section 11CG.
(7B) The
power of an ADI to comply with a direction under this section may be exercised
by giving a written notice to the person who is the subject of the direction.
(7C) Subsection (7B)
does not, by implication, limit any other powers of an ADI to remove a person.
(8) Part VI applies to a direction given by APRA under this section.
18
Referring matters to professional associations for auditors
(1) If APRA is of the opinion that an auditor
of a relevant body corporate (see subsection (2)):
(a) has failed, whether within or
outside Australia, to perform adequately and properly his or her duties or
functions as an auditor under:
(i) this Act, the
regulations or the prudential standards; or
(ii) any other law of the
Commonwealth, a State or a Territory; or
(b) is otherwise not a fit and proper
person to be the auditor of a relevant body corporate;
APRA may refer the details of the matter to either or both
of the following:
(c) the Companies Auditors and
Liquidators Disciplinary Board established by Division 1 of Part 11
of the Australian Securities and Investments Commission Act 2001;
(d) those members of the professional
association of the auditor whom APRA believes will be involved in considering
or taking any disciplinary or other action concerning the matter against the
auditor.
(2) For the purposes of this section, each of
the following is a relevant body corporate:
(a) an ADI;
(b) an authorised NOHC;
(c) a subsidiary of an ADI or
authorised NOHC;
(d) if an ADI is a subsidiary of a
foreign corporation (whether or not the ADI is itself a foreign corporation)—a
subsidiary of that foreign corporation that is incorporated in, or carries on
business in, Australia.
(3) If APRA refers details of a matter under
this section, APRA must also give written notice of the referral (including the
nature of the matter) to the auditor.
Division 2C—Enforceable undertakings
18A
Enforceable undertakings
(1) APRA may accept a written undertaking
given by a person in connection with a matter in relation to which APRA has a
power or function under this Act.
(2) The person may, with APRA’s consent, vary
or withdraw the undertaking.
(3) If APRA considers that a person who has
given an undertaking has breached any of the terms of the undertaking, APRA may
apply to the Federal Court of Australia for an order under subsection (4).
(4) If the Federal Court is satisfied that a
person who has given an undertaking has breached any of the terms of the
undertaking, the Court may make any or all of the following orders:
(a) an order directing the person to
comply with the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person obtained (whether directly or indirectly) and that is
reasonably attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
(5) For the purposes of this section, treat a
reference in this section to a matter in relation to which APRA has a power or
function under this Act as including a matter in relation to which APRA has a
power or function under the First Home Saver Accounts Act 2008 in
respect of ADIs.
Division 3—Governance
19
Disqualified persons must not act for ADIs or authorised NOHCs
(1) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person is or acts as one of
the following:
(i) a director or senior
manager of an ADI (other than a foreign ADI);
(ii) a senior manager of
the Australian operations of a foreign ADI;
(iii) a director or senior
manager of an authorised NOHC;
(iv) an auditor of an ADI or
an authorised NOHC; and
(c) for a person who is a disqualified
person only because he or she was disqualified under section 21—the person
is disqualified from being or acting as that director, senior manager or
auditor (as the case requires).
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is a disqualified
person; and
(b) the person is or acts as one of
the following:
(i) a director or senior
manager of an ADI (other than a foreign ADI);
(ii) a senior manager of
the Australian operations of a foreign ADI;
(iii) a director or senior
manager of an authorised NOHC;
(iv) an auditor of an ADI or
an authorised NOHC; and
(c) for a person who is a disqualified
person only because he or she was disqualified under section 21—the person
is disqualified from being or acting as that director, senior manager or
auditor (as the case requires).
Penalty: 60 penalty units.
(3) An offence against subsection (2) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) A body
corporate commits an offence if:
(a) a person is a disqualified person;
and
(b) the person is or acts as one of the
following:
(i) if the body corporate
is an ADI (other than a foreign ADI)—a director or senior manager of the body
corporate;
(ii) if the body corporate
is a foreign ADI—a senior manager of the Australian operations of the body
corporate;
(iii) if the body corporate
is an authorised NOHC—a director or senior manager of the body corporate;
(iv) if the body corporate
is an ADI or an authorised NOHC—an auditor of the body corporate; and
(c) for a person who is a disqualified
person only because he or she was disqualified under section 21—the person
is disqualified from being or acting as that director, senior manager or
auditor (as the case requires); and
(d) in any case—the body corporate
allows the person to be or act as a director, senior manager or auditor (as the
case requires).
Penalty: 250 penalty units.
(5) A body corporate commits an offence if:
(a) a person is a disqualified person;
and
(b) the person is or acts as one of
the following:
(i) if the body corporate
is an ADI (other than a foreign ADI)—a director or senior manager of the body
corporate;
(ii) if the body corporate
is a foreign ADI—a senior manager of the Australian operations of the body
corporate;
(iii) if the body corporate
is an authorised NOHC—a director or senior manager of the body corporate;
(iv) if the body corporate
is an ADI or an authorised NOHC—an auditor of the body corporate; and
(c) for a person who is a disqualified
person only because he or she was disqualified under section 21—the person
is disqualified from being or acting as that director, senior manager or
auditor (as the case requires); and
(d) in any case—the body corporate
allows the person to be or act as a director, senior manager or auditor (as the
case requires).
Penalty: 60 penalty units.
(6) An offence against subsection (5) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) A failure to comply with this section
does not affect the validity of an appointment or transaction.
(9) Subsections (1)
to (8) have no effect until the end of the 3‑month period that begins at
the commencement of this section.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
20 Who
is a disqualified person?
(1) A person is a disqualified person
if, at any time (whether before or after the commencement of this section):
(a) the person has been convicted of
an offence against or arising out of:
(i) this Act; or
(ii) the Financial
Sector (Collection of Data) Act 2001; or
(iii) the Corporations
Act 2001, the Corporations Law that was previously in force, or any law of
a foreign country that corresponds to that Act or to that Corporations Law; or
(b) the person has been convicted of
an offence against or arising out of a law in force in Australia, or the law of
a foreign country, where the offence related or relates to dishonest conduct,
or to conduct relating to a company that carries on business in the financial
sector; or
(c) the person has been or becomes
bankrupt; or
(d) the person has applied to take the
benefit of a law for the relief of bankrupt or insolvent debtors; or
(e) the person has compounded with his
or her creditors; or
(f) the Federal Court of Australia
has disqualified the person under section 21; or
(g) the person has been disqualified
under the law of a foreign country from managing, or taking part in the
management of, an entity that carries on the business of banking or insurance
or otherwise deals in financial matters.
Note: The Federal Court of Australia may determine
that a person is not a disqualified person (see section 22).
(2) A reference in subsection (1) to a
person who has been convicted of an offence includes a reference to a person in
respect of whom an order has been made relating to the offence under:
(a) section 19B of the Crimes
Act 1914; or
(b) a corresponding provision of a law
of a State, a Territory or a foreign country.
(3) Nothing in this section affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
21
Court power of disqualification
(1) On application by APRA, the Federal Court
of Australia may, by order, disqualify a person from being or acting as a
person referred to in subsection (2), for a period that the Court
considers appropriate, if the Court is satisfied that:
(a) the person is not a fit and proper
person to be or act as such a person; and
(b) the disqualification is justified.
(2) For the purposes of subsection (1),
the Court may disqualify a person from being or acting as one or more of the
following:
(a) a director or senior manager of:
(i) a particular ADI; or
(ii) a class of ADIs; or
(iii) any ADI;
(other than a particular foreign
ADI, a class of foreign ADIs or any foreign ADI);
(b) a senior manager of the Australian
operations of:
(i) a particular foreign
ADI; or
(ii) a class of foreign
ADIs; or
(iii) any foreign ADI;
(c) a director or senior manager of:
(i) a particular
authorised NOHC; or
(ii) a class of authorised
NOHCs; or
(iii) any authorised NOHC;
(d) an auditor of:
(i) a particular ADI or a
particular authorised NOHC; or
(ii) a class of ADIs or a
class of authorised NOHCs; or
(iii) any ADI or any
authorised NOHC.
(3) In deciding whether it is satisfied as
mentioned in paragraph (1)(a), the Court may take into account:
(a) any matters specified in the
regulations for the purposes of this paragraph; and
(b) any criteria for fitness and
propriety set out in the prudential standards; and
(c) any other matters the Court
considers relevant.
(4) In deciding whether the disqualification
is justified as mentioned in paragraph (1)(b), the Court may have regard
to:
(a) if the application is for the
person to be disqualified from being or acting as a director or senior
manager—the person’s conduct in relation to the management, business or
property of any corporation; and
(b) if the application is for the
person to be disqualified from being or acting as an auditor—the person’s
conduct in relation to the functions or duties of the person as required under
this Act and the prudential standards; and
(c) in any case—any other matters the
Court considers relevant.
(5) As soon as practicable after the Court
disqualifies a person under this section, APRA must cause particulars of the
disqualification:
(a) to be given:
(i) if the person is, or
is acting as, a person referred to in subparagraph (2)(a)(i)—to the ADI
concerned; or
(ii) if the person is, or
is acting as, a person referred to in subparagraph (2)(b)(i)—to the
foreign ADI concerned; or
(iii) if the person is, or
is acting as, a person referred to in subparagraph (2)(c)(i)—to the
authorised NOHC concerned; or
(iv) if the person is, or is
acting as, a person referred to in subparagraph (2)(d)(i)—to the ADI or
authorised NOHC concerned; and
(b) to be published in the Gazette.
22
Court power to revoke or vary a disqualification etc.
(1) A disqualified person, or APRA, may apply
to the Federal Court of Australia for:
(a) if the person is a disqualified
person only because he or she was disqualified under section 21—a
variation or a revocation of the order made under that section; or
(b) otherwise—an order that the person
is not a disqualified person.
(2) If the Court revokes an order under
paragraph (1)(a) or makes an order under paragraph (1)(b), then,
despite section 20, the person is not a disqualified person.
(3) At least 21 days before commencing the
proceedings, written notice of the application must be lodged:
(a) if the disqualified person makes
the application—by the person with APRA; or
(b) if APRA makes the application—by
APRA with the disqualified person.
(4) An order under paragraph (1)(b) may
be expressed to be subject to exceptions and conditions determined by the
Court.
23
APRA may remove a director or senior manager of an ADI or authorised NOHC
(1) This section applies to a person who is:
(a) a director or senior manager of an
ADI (other than a foreign ADI); or
(b) a senior manager of the Australian
operations of a foreign ADI; or
(c) a director or senior manager of an
authorised NOHC.
(2) APRA may direct (in writing) that the ADI
or authorised NOHC remove the person from the position if APRA is satisfied
that the person:
(a) either:
(i) for a person who is a
disqualified person only because he or she was disqualified under
section 21—is disqualified from being or acting as a director or senior
manager of the ADI or NOHC; or
(ii) otherwise—is a
disqualified person; or
(b) does not meet one or more of the
criteria for fitness and propriety set out in the prudential standards.
(3) Before directing an ADI or authorised
NOHC to remove a person, APRA must give written notice to:
(a) the person; and
(b) the ADI or NOHC;
giving each of them a reasonable opportunity to make
submissions on the matter.
(4) If a submission is made to APRA in response to the notice, APRA must have
regard to the submission and may discuss any matter contained in the submission
with such persons as it considers appropriate for the purpose of assessing the
truth of the matter.
(5) A notice given under subsection (3)
to a person, an ADI or an authorised NOHC must state that any submissions made
in response to the notice may be discussed by APRA with other persons as
mentioned in subsection (4).
(6) A direction takes effect on the day
specified in it, which must be not earlier than 7 days after it is signed.
(7) If APRA directs an ADI or authorised NOHC
to remove a person, APRA must give a copy of the direction to the person and to
the ADI or NOHC.
(7A) An ADI
or authorised NOHC must comply with a direction under this section.
Note: For
enforcement of the direction, see section 11CG.
(7B) The
power of an ADI to comply with a direction under this section may be exercised
on behalf of the ADI as set out in the table:
|
Power to comply with a direction
|
|
Item
|
Who may exercise the power
|
How the power may be exercised
|
|
1
|
The chair of the board
of directors of the ADI
|
by signing a written
notice.
|
|
2
|
A majority of the
directors of the ADI (excluding any director who is the subject of the
direction)
|
by jointly signing a
written notice.
|
(7C) The
power of an authorised NOHC to comply with a direction under this section may
be exercised on behalf of the NOHC as set out in the table:
|
Power to comply with a direction
|
|
Item
|
Who may exercise the power
|
How the power may be exercised
|
|
1
|
The chair of the board
of directors of the NOHC
|
by signing a written
notice.
|
|
2
|
A majority of the
directors of the NOHC (excluding any director who is the subject of the
direction)
|
by jointly signing a
written notice.
|
(7D) Subsections (7B)
and (7C) do not, by implication, limit any other powers of an ADI or authorised
NOHC to remove a person.
(8) Part VI applies to a direction given by APRA under this section.
Division 4—Mobilization of foreign currency
32
Interpretation
In this Division:
excess receipts of foreign currency, in
relation to an ADI as at a date, means the amount by which the amount of that
ADI’s surplus foreign currency as at that date exceeds the amount (if any) of
its surplus foreign currency as at the commencement of this Part.
sterling means currency that is legal tender
in the United Kingdom.
surplus foreign currency, in relation to an
ADI, means the amount by which the amount of that ADI’s assets outside
Australia attributable to, or acquired by virtue of, its Australian business
exceeds the amount of its liabilities outside Australia attributable to, or
incurred by virtue of, its Australian business.
33
Transfer of foreign currency to Reserve Bank
(1) The Reserve Bank may, from time to time,
by notice in writing, require each ADI to transfer to the Reserve Bank an
amount of sterling equivalent to such proportion as is specified in the notice
of that ADI’s excess receipts of foreign currency as at the close of business
on a date specified in the notice, not being more than 21 days before the date
on which the notice is given.
(2) The proportion specified in a notice
under subsection (1) shall be the same in respect of each ADI.
(3) Where, as at the close of business on a
date specified in a notice under subsection (1), an ADI has not
transferred an amount of sterling that it has been required to transfer in pursuance
of any previous notice under that subsection, the excess receipts of foreign
currency to which that amount of sterling is equivalent shall not, for the
purpose of calculating the amount of sterling required to be transferred in
pursuance of the first‑mentioned notice, be taken into account as part of
the excess receipts of foreign currency of that ADI.
(4) An ADI is
guilty of an offence if:
(a) the ADI receives a notice under subsection (1);
and
(b) the ADI does not comply with the
notice within:
(i) 7 days after receiving
the notice; or
(ii) if a longer period for
compliance is specified by the Reserve Bank—the period so specified.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(4A) An offence against subsection (4) is
an indictable offence.
(4B) If an ADI does or fails to do an act in
circumstances that give rise to the ADI committing an offence against subsection (4),
the ADI is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the ADI committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(5) An ADI shall be deemed to have complied
with the requirements of a notice under subsection (1) if it transfers to
the Reserve Bank an amount of sterling equivalent to the specified proportion
of that ADI’s excess receipts of foreign currency, as shown in that ADI’s books
of account, as at the close of business on the date in question.
(6) Where an ADI’s assets outside Australia
attributable to, or acquired by virtue of, its Australian business include
foreign currency that is not freely convertible into sterling, the Reserve Bank
shall make such adjustment in the amount of sterling required to be transferred
by that ADI to the Reserve Bank under this section as appears to the Reserve
Bank to be necessary in the circumstances.
34
Payment for transferred foreign currency
The Reserve Bank shall pay to an ADI
transferring sterling in compliance with a notice under section 33 such
amount in Australian currency as is agreed upon between the Reserve Bank and
the ADI transferring the sterling or, in default of agreement, as is determined
in an action for compensation by the ADI against the Reserve Bank.
35 Sale
of foreign currency by Reserve Bank
The Reserve Bank may sell foreign
currency to an ADI:
(a) where the Reserve Bank is
satisfied that the ADI has complied with the provisions of this Division and is
likely to suffer a shortage of foreign currency; or
(b) if the Reserve Bank considers
that, for any other reason, it is desirable to do so.
Division 5—Advances
36
Advance policy
(1) Where the Reserve Bank is satisfied that
it is necessary or expedient to do so in the public interest, the Reserve Bank
may determine the policy in relation to advances to be followed by ADIs.
(1A) An ADI is guilty of an offence if:
(a) the Reserve Bank has made a
determination under subsection (1) of a policy that applies to the ADI;
and
(b) the ADI fails to follow the policy.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1B) An offence against subsection (1A) is
an indictable offence.
(2) Without limiting the generality of subsection (1),
the Reserve Bank may give directions as to the classes of purposes for which
advances may or may not be made by ADIs.
(2A) An ADI is guilty of an offence if:
(a) the Reserve Bank has given a
direction under subsection (2) that applies to the ADI; and
(b) the ADI fails to comply with the directions.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(2B) An offence against subsection (2A) is
an indictable offence.
(3) Nothing in
this section:
(a) authorizes the Reserve Bank to
make a determination or give a direction with respect to an advance made, or
proposed to be made, to a particular person; or
(b) affects the validity of a
transaction entered into in relation to an advance or affects the right of an
ADI to recover an advance or enforce the security given in respect of an
advance.
Part IIA—ADI mergers (operation of State and Territory laws)
38A
Operation of certain State and Territory laws relating to ADI mergers
(1) Any law of the Commonwealth with which a
provision of a law of a State or Territory referred to in Schedule 1
would, but for this subsection, be inconsistent has effect subject to that
provision, or shall be deemed to have had effect subject to that provision, as
the case may be, on and from the day that is the prescribed day in relation to
that provision.
(2) Without prejudice to its effect apart
from this subsection, each provision of a law of a State or Territory referred
to in Schedule 1 has or shall be deemed to have had, as the case may be,
by force of this subsection, on and from the day that is the prescribed day in
relation to that provision, the effect that it would have, or would have had,
if that law bound the Crown in right of the Commonwealth, of the Australian
Capital Territory, of the Northern Territory and of Norfolk Island.
(3) If, at any time after the commencement of
this Part, a law of a State or Territory is passed or made for the purpose of,
or for the purpose of making provision consequent upon or in relation to, the
merger of 2 or more ADIs, the Treasurer may, in his or her discretion, by
signed writing published in the Gazette, declare that law to be a law to
which this subsection applies.
(4) Where a declaration is made under subsection (3)
in relation to a law of a State or Territory:
(a) any law of the Commonwealth with
which a provision of that law of a State or Territory would, but for this
paragraph, be inconsistent has effect, subject to that provision, or shall be
deemed to have had effect subject to that provision, as the case may be, on and
from the day that is the prescribed day in relation to that provision; and
(b) without prejudice to its effect
apart from this paragraph, each provision of that law of a State or Territory
has, or shall be deemed to have had, as the case may be, by force of this
paragraph, on and from the day that is the prescribed day in relation to that
provision, the effect that it would have, or would have had, if that law bound
the Crown in right of the Commonwealth, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
(5) A reference in this section to the
prescribed day in relation to a provision of a law of a State or Territory is a
reference to the day on which that provision comes or came into operation.
Part III—Foreign exchange, foreign investment etc.
39
Power to make regulations
(1) Where the Governor‑General
considers it expedient to do so for purposes related to:
(a) foreign exchange or the foreign
exchange resources of Australia;
(b) the protection of the currency or
the protection of the public credit or revenue of Australia; or
(c) foreign
investment in Australia, Australian investment outside Australia, foreign
ownership or control of property in Australia or of Australian property outside
Australia or Australian ownership or control of property outside Australia or
of foreign property in Australia;
the Governor‑General may make regulations, not
inconsistent with this Act, in accordance with this section.
(2) The regulations authorized to be made by
this section are regulations (being regulations with respect to matters with respect
to which the Parliament has power to make laws) making provision for or in
relation to:
(a) rates of exchange;
(b) the control or prohibition of the
buying, borrowing, selling, lending or exchanging in Australia of, or other
dealing in Australia with, foreign currency by or on behalf of any person, and
of the buying, borrowing, selling, lending or exchanging outside Australia of,
or other dealing outside Australia with, foreign currency by or on behalf of a
person who is a resident;
(c) the control or prohibition of any
transaction that has the effect of or involves a purchase, borrowing, sale,
loan or exchange of, or that otherwise relates to, foreign currency, being a
transaction that takes place in whole or in part in Australia or to which a person
who is a resident is a party;
(d) the control or prohibition of the
buying, borrowing, selling, lending or exchanging outside Australia of, or
other dealing outside Australia with, Australian currency by or on behalf of
any person, and of the buying, borrowing, selling, lending or exchanging in
Australia, or other dealing in Australia with, Australian currency by or on
behalf of a person who is not a resident;
(e) the control or prohibition of any
transaction that has the effect of or involves a purchase, borrowing, sale,
loan or exchange of, or that otherwise relates to, Australian currency, being a
transaction that takes place in whole or in part outside Australia or to which
a person who is not a resident is a party;
(f) the control or prohibition of the
taking or sending out of Australia, and of the bringing or sending into Australia,
of Australian currency or foreign currency;
(g) requiring any person who is a
resident and who has power to sell, or to procure the sale of, any foreign
currency, or any person (whether a resident or not) who has power to sell in
Australia, or to procure the sale in Australia of, any foreign currency, to
sell, or to procure the sale of, that currency as prescribed;
(h) requiring any person who is not a
resident and who has power to sell, or to procure the sale of, any Australian
currency, or any person (whether a resident or not) who has power to sell
outside Australia, or to procure the sale outside Australia of, any Australian
currency, to sell, or to procure the sale of, that currency as prescribed;
(i) the control or prohibition of the
taking, sending or transfer of any securities to a place outside Australia
(including the transfer of securities from a register in Australia to a
register outside Australia), and of the bringing, sending or transfer of any
securities to Australia from a place outside Australia (including the transfer
of securities from a register outside Australia to a register in Australia);
(j) the control or prohibition of the
buying, borrowing, selling, lending or exchanging of, or other dealing with,
property that is in Australia, or of Australian securities that are outside
Australia, by or on behalf of a person who is not a resident;
(k) the control or prohibition of any
transaction that has the effect of or involves a purchase, borrowing, sale,
loan or exchange of, or that otherwise relates to, property that is in Australia,
or of Australian securities that are outside Australia, being a transaction to
which a person who is not a resident is a party;
(l) the control or prohibition of the
buying, borrowing, selling, lending or exchanging of, or other dealing with,
property that is outside Australia, or of foreign securities that are in
Australia, by or on behalf of a person who is a resident;
(m) the control or prohibition of any
transaction that has the effect of or involves a purchase, borrowing, sale,
loan or exchange of, or that otherwise relates to, property that is outside Australia,
or of foreign securities that are in Australia, being a transaction to which a
person who is a resident is a party;
(n) requiring any person who is a
resident and by whom moneys are payable to a person who is not a resident to
pay those moneys within such time as is fixed by or under the regulations;
(o) the control or prohibition of the
importation or exportation of goods;
(p) the obtaining by the Reserve Bank
(or by a person authorized by the Bank for the purpose) of information, and the
examination by the Bank (or by a person authorized by the Bank for the purpose)
of accounts, books, documents or other papers, for purposes related to the
exercise of the Bank’s powers or the performance of the Bank’s functions under
the regulations;
(q) prescribing penalties not
exceeding a fine of 1,000 penalty units, or imprisonment for a period not
exceeding 5 years, for offences against the regulations made under this
section; and
(r) empowering a court to order the
forfeiture, or the disposal in accordance with the directions of the Reserve
Bank, of Australian currency, foreign currency, goods or other property in
respect of which an offence against the regulations made under this section has
been committed.
(3) Without limiting the generality of the
power of the Governor‑General to make regulations under this section, the
regulations may:
(a) for any purpose of the
regulations, prohibit the doing of any act or thing (including the importation
or exportation of goods) specified in the regulations either absolutely or
subject to conditions, being conditions which may prohibit the doing of the act
or thing without the authority of the Reserve Bank or except in pursuance of a
licence granted under the regulations;
(b) make provision for or in relation
to terms and conditions subject to which such authorities or licences shall or
may be granted, being terms and conditions which may require the deposit of
money with the Reserve Bank; and
(c) make provision for or in relation
to the granting of exemptions, either unconditionally or subject to conditions
determined by the Reserve Bank, from the application of any provision of the
regulations.
(4) Regulations under this section may
provide:
(a) that the regulations, or a
particular provision of the regulations specified in the regulations, shall
apply, without modification or with such modifications as are prescribed, to
and in relation to a resident included in a prescribed class of persons as if
the person were not a resident; and
(b) that the regulations, or a
particular provision of the regulations specified in the regulations, shall
apply, without modification or with such modifications as are prescribed, to
and in relation to a person who is not a resident but is included in a
prescribed class of persons, as if the person were a resident.
(5) Regulations under this section may
provide:
(a) that, where a body corporate that
is not a resident has a place of business in Australia, the body corporate
shall be deemed, for the purposes of the regulations or a particular provision
of the regulations specified in the regulations, to be a resident in relation
to the affairs of the body corporate conducted by the body corporate at or
through that place of business, including any business carried on, transactions
entered into and acts and things done by the body corporate at or through that
place of business; and
(b) that, where a body corporate that
is a resident has a place of business outside Australia, the body corporate
shall be deemed, for the purposes of the regulations or a particular provision
of the regulations specified in the regulations, not to be a resident in
relation to the affairs of the body corporate conducted by the body corporate
at or through that place of business, including any business carried on,
transactions entered into and acts and things done by the body corporate at or
through that place of business.
(6) Regulations under this section may
provide that no act or thing done, or contract or other transaction entered
into, is invalid or unenforceable by reason only that the provisions of the
regulations have not, or a particular provision of the regulations specified in
the regulations has not, been complied with, but regulations so made shall not
be construed as having the effect of preventing a person from being convicted
of an offence against the regulations by reason of having failed to comply with
a provision of the regulations.
(7) Regulations under this section may
provide that, in the exercise of its powers or the performance of its functions
under the regulations, or under a particular provision of the regulations
specified in the regulations, the Reserve Bank is subject to the directions of
the Treasurer.
(8) In this section:
Australian currency includes notes, coins,
postal notes, money orders, bills of exchange, promissory notes, drafts, letters
of credit and travellers’ cheques payable or expressed in Australian money, and
also includes rights, and instruments of title, to Australian money.
Australian securities means securities or
other property included in a class of securities or property specified in the
regulations as Australian securities.
foreign currency includes notes, coins,
postal notes, money orders, bills of exchange, promissory notes, drafts,
letters of credit and travellers’ cheques payable or expressed otherwise than
in Australian money, and also includes rights and instruments of title, to
money other than Australian money.
foreign securities means securities or other
property included in a class of securities or property specified in the
regulations as foreign securities.
property includes securities and rights under
securities.
resident means:
(a) a person, not being a body
corporate, who is ordinarily resident in Australia; and
(b) a body corporate which is
incorporated in Australia.
securities includes shares, stock, bonds,
debentures, debenture stock, treasury bills and notes, and units or sub‑units
of a unit trust, and also includes deposit receipts in respect of the deposit
of securities and documents of title to securities.
(9) Nothing in Part IV shall be taken as
limiting the power of the Governor‑General to make regulations under this
section for or in relation to the control or prohibition of the importation or
exportation of gold, or otherwise with respect to gold.
(10) A reference in this section to property
that is in Australia shall be read as including a reference to a right, not
being property, that is exercisable in Australia, and a reference in this
section to property that is outside Australia shall be read as including a
reference to a right, not being property, that is not exercisable in Australia.
(11) Nothing in subsection (1) shall be
taken to affect, by implication or otherwise, the interpretation or operation
of regulations made under this section.
39A
Extra‑territorial application of regulations
(1) Regulations made under section 39
shall, except where the contrary intention appears, apply both within and
without Australia.
(2) A provision of the Judiciary Act 1903 by
which a court of a State is invested with jurisdiction with respect to offences
against the laws of the Commonwealth has effect, in relation to offences
against the regulations made under section 39 of this Act not committed
within any State, as if that jurisdiction were so invested without limitation
as to locality.
(3) Subject to the Constitution, jurisdiction
is conferred on the several courts of a Territory, within the limits of their
several jurisdictions other than limits as to locality, with respect to
offences against the regulations made under section 39 not committed
within a State or within another Territory.
(4) The trial on indictment of an offence
against the regulations made under section 39 not committed within a State
may be held by a court of competent jurisdiction at any place where the court
may sit.
39B
Granting of authorities by Reserve Bank subject to taxation clearance
(1) Where regulations made under section 39
contain a provision prohibiting the doing of an act or thing without the
authority of the Reserve Bank and an application is made to the Bank for the authority
of the Bank to do that act or thing, then:
(a) if the act or thing is of a kind
specified in a notice in force under subsection (2) of this section—the
Bank shall not grant that authority unless there is produced to the Bank, in
respect of that act or thing, a tax clearance certificate issued under section 14C
of the Taxation Administration Act 1953 in respect of that act or thing;
or
(b) in
any other case—the Bank may refuse to grant that authority unless there is
produced to the Bank such a certificate;
but the foregoing shall not be taken as limiting the
discretion of the Bank to refuse to grant any such authority on any other
ground.
(2) The Treasurer may, by notice in writing
published in the Gazette, direct that acts or things of a kind specified
in the notice are, on and after the date of publication of the notice or such
later date as is specified in the notice, acts or things of a kind to which
this section applies.
Part IV—Gold
40
Operation of Part
(1) This Part shall not be in operation
except as provided by this section.
(2) Where the Governor‑General is
satisfied that it is expedient so to do, for the protection of the currency or
of the public credit of the Commonwealth, the Governor‑General may, by
Proclamation, declare that this Part, or such of the provisions of this Part as
are specified in the Proclamation, shall come into operation, and this Part, or
the provisions so specified, shall thereupon come into operation.
(3) Where the Governor‑General is
satisfied that it is no longer expedient, for the protection of the currency or
of the public credit of the Commonwealth, that this Part, or any of the
provisions of this Part, should remain in operation, the Governor‑General
may, by Proclamation, declare that this Part, or such of the provisions of this
Part as are specified in the Proclamation, shall cease to be in operation, and
thereupon this Part, or the provisions so specified, shall cease to be in
operation.
41
Transfer of gold out of Australia
(1) A person shall not, except with the
consent in writing of the Reserve Bank, take or send any gold out of Australia.
(2) A person is guilty of an offence if:
(a) the person contravenes subsection (1);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of this
subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3) An offence against subsection (2) is
an indictable offence.
42
Delivery of gold
(1) Subject to this Part, a person who has
any gold in the person’s possession or under the person’s control, not being:
(a) gold coins the total value of the
gold content of which does not exceed the prescribed amount; or
(b) gold
lawfully in the possession of that person for the purpose of being worked or
used by that person in connexion with the person’s profession or trade;
shall deliver the gold to the Reserve Bank, or as
prescribed, within one month after the gold comes into the person’s possession
or under the person’s control or, if the gold is in the person’s possession or
under the person’s control on any date on which this Part comes into operation,
within one month after that date.
(1A) A person is guilty of an offence if:
(a) the person fails to comply with subsection (1);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of this
subsection.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(2) Where a person who has gold lawfully in
the person’s possession for the purpose of being worked or used by the person
in connexion with the person’s profession or trade ceases to have that purpose
in respect of that gold, the person shall deliver the gold to the Reserve Bank,
or as prescribed, within one month after the person has ceased to have that
purpose in respect of that gold.
(3) A person is guilty of an offence if:
(a) the person fails to comply with subsection (2);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of this
subsection.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
43
Vesting of gold delivered
All gold delivered in pursuance of
section 42 shall thereupon vest in the Reserve Bank absolutely, free from
any mortgage, charge, lien, trust or other interest in or affecting the gold,
and the Reserve Bank shall pay for the gold, to the person delivering the gold,
on behalf of all persons having any interest in the gold, an amount determined
in accordance with section 44 and the Reserve Bank shall not be under any
liability to any other person claiming any interest in the gold.
44
Payment for gold
The amount to be paid for any gold
delivered in pursuance of section 42 shall be an amount determined in
accordance with such price as is fixed and published by the Reserve Bank or, at
the option of the person delivering the gold, such amount as is determined in
an action for compensation against the Reserve Bank.
45
Limitation of sale and purchase of gold
(1) Subject to
this Part:
(a) a person shall not sell or
otherwise dispose of gold to a person other than the Reserve Bank or a person
authorized in writing by the Reserve Bank to purchase gold; and
(b) a person, other than the Reserve
Bank or a person so authorized, shall not buy or otherwise obtain gold from any
person.
(1A) A person is guilty of an offence if:
(a) the person fails to comply with subsection (1);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of this
subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1B) An offence against subsection (1A) is
an indictable offence.
(2) A person may buy gold from the Reserve
Bank or from a person authorized in writing by the Reserve Bank to sell gold,
and the Reserve Bank or a person so authorized may sell gold to a person, for
the purpose of its being worked or used by the purchaser in connexion with the
person’s profession or trade.
(3) A person authorized by the Reserve Bank
under this section shall comply with such directions relating to gold as are
given to the person by the Reserve Bank.
(4) A person is guilty of an offence if:
(a) the person fails to comply with subsection (3);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of this
subsection.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(5) An offence against subsection (4) is
an indictable offence.
46
Limitation on working of gold
(1) A person shall not work or use in
manufacture any gold, not being gold lawfully in the person’s possession for
the purpose of being worked or used by the person in connexion with the
person’s profession or trade.
(2) A person is guilty of an offence if:
(a) the person fails to comply with subsection (1);
and
(c) there is no instrument in force
under section 48 exempting the person from the application of subsection (1).
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3) An offence against subsection (2) is
an indictable offence.
47
Application of Part
(1) This Part does not apply to wrought gold,
not being wrought gold worked or manufactured in contravention of this Part.
(2) In this section, wrought gold
means gold and gold alloys which on view have apparently been worked or
manufactured for professional or trade purposes and includes the waste products
arising from the working or manufacturing of gold and gold alloys for
professional or trade purposes.
48
Exemptions
The Reserve Bank may, by instrument in
writing, and either wholly or to the extent specified in the instrument, exempt
a person from the application of the whole or any of the provisions of this
Part and, so long as the exemption continues, that person is exempt
accordingly.
Part V—Interest rates
50
Control of interest rates
(1) The Reserve Bank may, with the approval
of the Treasurer, make regulations:
(a) making provision for or in
relation to the control of rates of interest payable to or by ADIs, or to or by
other persons in the course of any banking business carried on by them;
(b) making provision for or in
relation to the control of rates of discount chargeable by ADIs, or by other
persons in the course of any banking business carried on by them;
(c) providing that interest shall not
be payable in respect of an amount deposited with an ADI, or with another
person in the course of banking business carried on by the person, and
repayable on demand or after the end of a period specified in the regulations;
and
(d) prescribing penalties, for
offences against the regulations, not exceeding:
(i) if the offender is a
natural person—a fine of $5,000; or
(ii) if the offender is a
body corporate—a fine of $25,000.
Part VI—Reconsideration and Review of decisions
51A
Definitions
In this Part:
decision has the same meaning as in the
Administrative Appeals Tribunal Act 1975.
reviewable decision of APRA means a decision
of APRA to which, under this Act or the First Home Saver Accounts Act 2008,
this Part applies.
51B
Reconsideration of decisions
(1) A person affected by a reviewable
decision of APRA who is dissatisfied with the decision may, by notice in
writing given to APRA, within the period of 21 days after the day on which the
decision first comes to the notice of the person, or within such further period
as APRA allows, request APRA to reconsider the decision.
(2) The request must set out the reasons for
making the request.
(3) Upon receiving the request, APRA must
reconsider the decision and may, subject to subsection (4), confirm or
revoke the decision or vary the decision in such manner as APRA thinks fit.
(4) If APRA does not confirm, revoke or vary
a decision before the end of the period of 21 days after the day on which APRA
received the request under subsection (1) to reconsider the decision, APRA
is taken, at the end of that period, to have confirmed the decision under subsection (3).
(5) If APRA confirms, revokes or varies a
decision before the end of the period referred to in subsection (4), APRA
must, by notice served on the person who made the request:
(a) tell the person of the result of
APRA’s reconsideration of the decision; and
(b) set out the findings on material
questions of fact; and
(c) refer to the evidence or other
material on which those findings were based; and
(d) give APRA’s reasons for
confirming, revoking or varying the decision, as the case may be.
(6) When APRA serves on a person a notice
containing information of a kind mentioned in paragraph (5)(b) or (c),
APRA may include in the notice conditions to be complied with in relation to
the notice or any information disclosed in the notice.
(7) A person commits an offence if the person
fails to comply with a condition imposed under subsection (6).
Maximum penalty: Imprisonment for 2 years.
(8) Strict liability applies to the physical
element of the offence in subsection (7) that the condition is imposed
under subsection (6).
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
51C
Review of decisions
(1) Applications may be made to the
Administrative Appeals Tribunal for review of decisions of APRA that have been
confirmed or varied under subsection 51B(3).
(2) If a decision is taken, because of the
operation of subsection 51B(4), to be confirmed, section 29 of the Administrative
Appeals Tribunal Act 1975 applies as if the prescribed time for making
application for review of the decision were the period beginning on the day on
which the decision is taken to be confirmed and ending on the 28th day after
that day.
(3) If a person makes a request under
subsection 51B(1) in respect of a reviewable decision of APRA, section 41
of the Administrative Appeals Tribunal Act 1975 applies as if the making
of the request were the making of an application to the Administrative Appeals
Tribunal for a review of that decision.
51D
Statements to accompany notification of decisions
(1) If a
reviewable decision of APRA is made and notice in writing of the decision is
given to a person affected by the decision, the notice is to include a
statement to the effect that:
(a) the person may, if dissatisfied
with the decision, seek a reconsideration of the decision by APRA in accordance
with subsection 51B(1); and
(b) a person whose interests are
affected by the decision may, subject to the Administrative Appeals Tribunal
Act 1975, if dissatisfied with a decision made by APRA upon that
reconsideration confirming or varying the first‑mentioned decision, apply
to the Administrative Appeals Tribunal for a review of the decision so
confirmed or varied.
(2) A notice given to a person under subsection (1)
may impose conditions relating to the disclosure of any information setting out
reasons for the decision that is contained in, or in a document accompanying,
the notice.
(3) A person commits an offence if the person
fails to comply with a condition imposed under subsection (2).
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) If APRA confirms or varies a decision
under subsection 51B(3) and gives to a person notice in writing of the
confirmation or variation of the decision, the notice is to include a statement
to the effect that a person whose interests are affected by the decision may,
subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied
with the decision so confirmed or varied, apply to the Administrative Appeals
Tribunal for review of the decision.
(5) Any failure to comply with the
requirements of subsection (1) or (4) in relation to a decision does not
affect the validity of the decision.
Part VIA—Protections in relation to information
Division 1—Protection for whistleblowers
52A
Disclosures qualifying for whistleblower protection
(1) This section applies to a disclosure of
information made by a person (the discloser) who is, in relation
to a body corporate that is an ADI, an authorised NOHC or a subsidiary of an
ADI or authorised NOHC, any of the following:
(a) an officer of the body corporate;
(b) an employee of the body corporate;
(c) a person who has a contract for
the supply of services or goods to the body corporate;
(d) an employee of a person who has a
contract for the supply of services or goods to the body corporate.
(2) The disclosure of the information by the
discloser qualifies for protection under this Division if:
(a) the disclosure is made to any of
the following:
(i) APRA;
(ii) the auditor, or a
member of an audit team conducting an audit, of the body corporate or a related
body corporate;
(iii) a director or senior
manager of the body corporate or a related body corporate;
(iv) a person authorised by
the body corporate to receive disclosures of the kind made; and
(b) the discloser informs the person
to whom the disclosure is made of the discloser’s name before making the
disclosure; and
(c) both:
(i) the information
concerns misconduct, or an improper state of affairs or circumstances, in
relation to the body corporate; and
(ii) the discloser
considers that the information may assist a person referred to in
paragraph (a) to perform the person’s functions or duties in relation to
the body corporate or a related body corporate; and
(d) the discloser makes the disclosure
in good faith.
(3) For the purposes of this section, a body
corporate is a related body corporate of another body corporate
if:
(a) in the case of an ADI—the other
body corporate is the authorised NOHC of the ADI or a subsidiary of the ADI or
authorised NOHC; or
(b) in the case of an authorised NOHC
of an ADI—the other body corporate is the ADI or a subsidiary of the ADI or
authorised NOHC; or
(c) in the case of a subsidiary of an
ADI or authorised NOHC—the other body corporate is the ADI, the authorised NOHC
or another subsidiary of the ADI or authorised NOHC.
(4) In this section, officer has
the same meaning as it has in the Corporations Act 2001.
52B
Whistleblower protection for disclosures that qualify
(1) If a person makes a disclosure that
qualifies for protection under this Division:
(a) the person is not subject to any
civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may
be enforced, and no contractual or other right may be exercised, against the
person on the basis of the disclosure.
(2) Without limiting subsection (1):
(a) the person has qualified privilege
in respect of the disclosure; and
(b) a contract to which the person is
a party must not be terminated on the basis that the disclosure constitutes a
breach of the contract.
(3) Without limiting paragraphs (1)(b)
and (2)(b), if a court is satisfied that:
(a) a person (the employee)
is employed in a particular position under a contract of employment with
another person (the employer); and
(b) the employee makes a disclosure
that qualifies for protection under this Division; and
(c) the employer purports to terminate
the contract of employment on the basis of the disclosure;
the court may order that the employee be reinstated in
that position or a position at a comparable level.
(4) If an individual makes a disclosure of
information that qualifies for protection under this Division, the information
is not admissible in evidence against the individual in criminal proceedings or
in proceedings for the imposition of a penalty, other than proceedings in
respect of the falsity of the information.
52C
Victimisation of whistleblowers prohibited
Actually causing detriment to another person
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct causes any
detriment to another person; and
(c) the person intends that his or her
conduct cause detriment to the other person; and
(d) the person engages in his or her
conduct because the other person made a disclosure that qualifies for
protection under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
Threatening to cause detriment to another person
(2) A person (the first person)
commits an offence if:
(a) the first person makes a threat to
another person (the second person) to cause any detriment to the
second person or to a third person; and
(b) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat
because a person:
(i) made a disclosure that
qualifies for protection under this Division; or
(ii) may make a disclosure
that would qualify for protection under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
Threats
(3) For the purposes of subsection (2),
a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence under
subsection (2), it is not necessary to prove that the person threatened
actually feared that the threat would be carried out.
Definition
(5) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to do an act.
52D
Right to compensation
If:
(a) a person:
(i) commits an offence
under subsection 52C(1) or (2); or
(ii) commits an offence
under Part 2.4 of the Criminal Code in relation to subsection
52C(1) or (2); and
(b) another person suffers damage
because of the conduct constituting the offence or because of the
contravention;
the person is liable to compensate the other person for
the damage.
52E
Confidentiality requirement for company, company officers and employees and
auditors
(1) A person (the offender)
commits an offence under this subsection if:
(a) a person (the discloser)
makes a disclosure of information that qualifies for protection under this
Division; and
(b) the
disclosure is made to:
(i) the auditor of, or a
member of an audit team conducting an audit of, the body corporate or a related
body corporate within the meaning of subsection 52A(3); or
(ii) a director or senior
manager of the body corporate or a related body corporate within the meaning of
subsection 52A(3); or
(iii) a person authorised by
the body corporate to receive disclosures of that kind; and
(c) the offender is:
(i) the auditor, or a
member of an audit team conducting an audit, of the body corporate or a related
body corporate; or
(ii) a director or senior
manager of the body corporate or a related body corporate; or
(iii) a person authorised by
the body corporate to receive disclosures of that kind; or
(iv) the body corporate or a
related body corporate; or
(v) an officer or employee
of the body corporate or a related body corporate; and
(d) the offender discloses any of the
following information (the confidential information):
(i) the information
referred to in paragraph (a);
(ii) the identity of the
discloser;
(iii) information that is
likely to lead to the identification of the discloser; and
(e) the confidential information is
information that the offender obtained directly or indirectly because of the
disclosure referred to in paragraph (a); and
(f) either:
(i) the offender is the
person to whom the disclosure referred to in paragraph (a) is made; or
(ii) the offender is a
person to whom the confidential information is disclosed in contravention of
this section and the offender knows that the disclosure of the confidential
information to the offender was unlawful or made in breach of confidence; and
(g) the
disclosure referred to in paragraph (d) is not authorised under
subsection (2).
Penalty: 25 penalty units.
(2) The disclosure referred to in
paragraph (1)(d) is authorised under this subsection if:
(a) it is made to APRA; or
(b) it is made to a member of the
Australian Federal Police (within the meaning of the Australian Federal
Police Act 1979); or
(c) it is made to someone else with
the consent of the discloser.
(3) In this section, officer
has the same meaning as it has in the Corporations Act 2001.
Division 2—Self‑incrimination
52F
Self‑incrimination
(1) A person is not excused from complying
with a requirement under this Act or the Financial Sector (Collection of
Data) Act 2001 to give information to APRA on the ground that doing so
would tend to incriminate the person or make the person liable to a penalty.
(2) However, if the person is an individual,
the information given by the individual in compliance with the requirement is
not admissible in evidence against the individual in criminal proceedings or in
proceedings for the imposition of a penalty, other than proceedings in respect
of the falsity of the information, if:
(a) before giving the information, the
individual claims that giving the information might tend to incriminate the
individual or make the individual liable to a penalty; and
(b) giving the information might in
fact tend to incriminate the individual or make the individual liable to a
penalty.
Part VII—Miscellaneous
61
APRA may conduct investigations
(1) APRA may appoint a person to investigate
and report on prudential matters in relation to:
(a) a body corporate that is:
(i) an ADI; or
(ii) an authorised NOHC; or
(iii) a subsidiary of an ADI
or of an authorised NOHC; or
(b) if a body corporate that is an ADI
is a subsidiary of a foreign corporation (whether or not the ADI is itself a
foreign ADI):
(i) another subsidiary of
the foreign corporation (other than a body mentioned in paragraph (a),
being a subsidiary that is incorporated in Australia; or
(ii) the Australian
operations of another subsidiary of the foreign corporation (other than a body
mentioned in paragraph (a), being a subsidiary that is not incorporated in
Australia and carries on business in Australia;
if it is satisfied that such a report is necessary. The
appointment must be in writing and must specify the prudential matters that are
to be the subject of the investigation and report.
(2) If APRA has appointed a person under this
section to investigate and report on prudential matters in relation to a body
corporate, the body corporate must give the person access to its books,
accounts and documents and must give the person such information and facilities
as the person requires to conduct the investigation and produce the report.
(3) A body corporate commits an offence if:
(a) under subsection (1), APRA
has appointed a person to investigate and report on prudential matters in
relation to the body corporate; and
(b) the body corporate:
(i) does not give the
person access to its books, accounts and documents; or
(ii) fails to comply with a
requirement made under subsection (2) for the provision of information or facilities.
Maximum penalty: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(5) If a body corporate does or fails to do
an act in circumstances that give rise to the body corporate committing an
offence against subsection (3), the body corporate commits an offence
against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the body corporate committing the
offence continue (including the day of conviction for any such offence or any
later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(6) Nothing in this section is intended to
limit the operation of any other provision of this Act.
62
Supply of information
(1) APRA may require persons to provide
information as follows:
(a) an ADI may be required to give
APRA information in respect of the ADI or in respect of any member of a
relevant group of bodies corporate of which the ADI is a member;
(b) an authorised NOHC may be required
to give APRA information in respect of the NOHC or in respect of any member of
a relevant group of bodies corporate of which the NOHC is a member;
(c) a subsidiary of an ADI or an
authorised NOHC may be required to give APRA information in respect of the subsidiary
or in respect of any member of a relevant group of bodies corporate of which
the subsidiary is a member;
(ca) if an ADI is a subsidiary of a
foreign corporation (whether or not the ADI is itself a foreign ADI):
(i) another subsidiary of
the foreign corporation (other than a body mentioned in paragraph (a), (b)
or (c) that is incorporated in Australia may be required to give APRA
information in respect of the subsidiary; or
(ii) another subsidiary of
the foreign corporation (other than a body mentioned in paragraph (a), (b)
or (c)) that is not incorporated in Australia and carries on business in
Australia may be required to give APRA information in respect of its Australian
operations;
(d) any other person who carries on
any banking business in Australia may be required to give APRA information in
connection with the person’s banking business.
The requirement to supply information may include a
requirement to supply books, accounts or documents.
(1A) A person is guilty of an offence if:
(a) under subsection (1), APRA
requires the person to provide information, books, accounts or documents; and
(b) the person fails to comply with
the requirement.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1B) An offence against subsection (1A) is
an indictable offence.
(1C) If a person fails to comply with a
requirement under subsection (1) in circumstances that give rise to the
person committing an offence against subsection (1A), the person is guilty
of an offence against subsection (1A) in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(2) A requirement under subsection (1)
must not require information, books, accounts or documents to be given with
respect to the affairs of an individual customer of an ADI unless the
information, books, accounts or documents are in respect of prudential matters relating to:
(a) the
ADI; or
(b) any
member of a relevant group of bodies corporate of which the ADI is a member.
62A
Notices to APRA
Matters requiring immediate notice
(1) A member of a relevant group of bodies
corporate commits an offence if:
(a) it becomes aware that it, another
member of the group, or the group as a whole, may not be in a sound financial
position; and
(b) it fails to notify APRA in writing
of the matter immediately after it becomes aware of the matter.
Penalty: 200 penalty units.
Defence if matter already notified
(1A) Subsection (1) does not apply in relation
to a matter if:
(a) the member of the group becomes
aware of the matter because it is informed of it by the auditor of the member;
and
(b) the auditor informs the member
that the auditor has notified APRA in writing of the matter; and
(c) the member has no reason to
disbelieve the auditor.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (1A). See subsection 13.3(3) of the Criminal
Code.
Matters requiring notice as soon as practicable
(1B) A member of a relevant group of bodies
corporate commits an offence if:
(a) it becomes aware that:
(i) it, another member of
the group, or the group as a whole, has breached or will breach a
prudential standard applying to it, the other member or the group as a whole;
or
(ii) another member of the
group has breached or will breach a provision of this Act or the regulations,
or a direction under Division 1BA of Part II or a condition of any
authority granted under this Act to the other member; and
(b) the breach is or will be
significant (see subsection (1C)); and
(c) it fails to give APRA a written
report about the breach as soon as practicable, and in any case no later than
10 business days, after becoming aware of the breach.
Penalty: 200 penalty units.
(1C) For the purposes of paragraph (1B)(b),
a breach is significant if the breach is or will be significant
having regard to any one or more of the following factors:
(a) the number or frequency of similar
breaches;
(b) the impact the breach has or will
have on the member’s or other member’s ability to conduct its business;
(c) the extent to which the breach
indicates that the member’s or other member’s arrangements to ensure compliance
with this Act, the regulations, the prudential standards or a direction or
condition might be inadequate;
(d) the actual or potential financial
loss arising or that will arise from the breach:
(i) to the depositors of
the ADI or any ADI that is a member of the relevant group of bodies corporate;
or
(ii) to the member or other
member;
(e) any matters prescribed by the
regulations for the purposes of this paragraph.
Defence if auditor notifies breach
(1D) Subsection (1B) does not apply in
relation to a breach if:
(a) the auditor of the member of the
group gives APRA a written report about the breach; and
(b) the report is given before, or
within 10 business days after, the member becomes aware of the breach.
Note: The defendant bears an evidential burden in
relation to the matters in subsection (1D). See subsection 13.3(3) of the Criminal
Code.
(2) If an
individual:
(a) commits an offence against subsection (1)
or (1B) because of Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4
of the Criminal Code in relation to an offence against subsection (1)
or (1B);
he or she is punishable, on conviction, by a fine not
exceeding 40 penalty units.
(3) A notification or report given to APRA of
a matter mentioned in paragraph (1)(a) or (1B)(a) must not include
information, books, accounts or documents with respect to the affairs of an
individual customer of an ADI unless the information, books, accounts or
documents are in respect of prudential matters relating to:
(a) the
ADI; or
(b) any
member of a relevant group of bodies corporate of which the ADI is a member.
(4) For the purposes of this section, treat a
reference in this section to this Act as including a reference to the First
Home Saver Accounts Act 2008.
62B
Involving APRA in applications to appoint external administrators of ADIs
(1) Before a person other than APRA makes an
application to a court under Chapter 5 of the Corporations Act 2001
for the appointment of an external administrator of an ADI, the person must
give APRA written notice that the person proposes to make the application.
(2) APRA is entitled to be heard on the
application.
(3) After receiving the notice, APRA may
request the person to provide details of the proposed application.
Offence
(4) A person (other than APRA) commits an
offence if:
(a) the person makes an application to
a court under Chapter 5 of the Corporations Act 2001 for the
appointment of an external administrator of an ADI; and
(b) before making the application, the
person did not give APRA written notice indicating that the person proposed to
make the application.
Penalty: 60 penalty units.
(5) An offence against subsection (4) is
an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
62C
Involving APRA in applications by liquidator
(1) Before making an application to a court
in relation to a matter arising under the winding‑up of an ADI, a
liquidator must give APRA written notice that the liquidator proposes to make
the application.
(2) The notice must include details of the
proposed application.
(3) APRA is entitled to be heard on the
application.
63
Restructuring of ADIs
(1AA) If consent has been given under this section
to an arrangement, agreement or reconstruction, the Treasurer must arrange for
notice of the consent to be published in the Gazette as soon as
practicable.
(1) An ADI, other than a foreign ADI, is
guilty of an offence if:
(a) the ADI:
(i) enters into an
arrangement or agreement for any sale or disposal of its business by
amalgamation or otherwise, or for the carrying on of business in partnership
with another ADI; or
(ii) effects a
reconstruction of the ADI; and
(b) the Treasurer did not give prior
consent in writing to the ADI entering into the arrangement or agreement or
effecting the reconstruction.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1A) An offence
against subsection (1) is an indictable offence.
(2) Any such arrangement, agreement or
reconstruction, and any such sale or disposal in pursuance of any such
arrangement or agreement, entered into without the prior consent of the
Treasurer is void and of no effect.
(3) The consent of the Treasurer under subsection (1)
shall not be unreasonably withheld.
(3A) In making a decision whether to consent to
an arrangement, agreement or reconstruction, the Treasurer must take the
national interest into account.
(4) A foreign
ADI is guilty of an offence if:
(a) there is a proposal that involves
the ADI:
(i) entering into an
arrangement or agreement for any sale or disposal of its business by
amalgamation or otherwise, or for the carrying on of business in partnership
with another ADI; or
(ii) effecting a
reconstruction of the ADI; and
(b) the ADI does not give the
Treasurer reasonable notice, in writing, of the proposal.
Maximum penalty: 200 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(4A) An offence against subsection (4) is
an indictable offence.
(5) The Treasurer may, in writing, delegate
all or any of his or her powers under this section and section 64 to:
(a) APRA, an APRA member or an APRA
staff member; or
(aa) ASIC, a member of ASIC or a staff
member (as defined in subsection 5(1) of the Australian Securities and
Investments Commission Act 2001) only in the case of a demutualisation of
an ADI; or
(b) an officer of the Department.
(6) A reference in this section to a
reconstruction of an ADI includes a reference to a demutualisation of an ADI.
(7) The regulations may define the meaning of
demutualisation for the purposes of this section. If the
regulations do so, demutualisation has, in this section, the meaning
given by the regulations.
(8) The Treasurer may, by legislative
instrument, determine guidelines as to acceptable standards of disclosure of
information by an ADI (other than a foreign ADI) to its members in respect of a
proposed demutualisation of the ADI.
(9) The Treasurer must consider whether an
ADI has complied with the guidelines (if any) in deciding whether to give a
consent, for the purposes of paragraph (1)(b), to the ADI effecting a
demutualisation.
(10) In making a determination under subsection (8),
the Treasurer must consult with APRA and ASIC.
(12) Subsections (6) to (11) do not limit
the generality of the rest of this section. In particular, those subsections do
not limit the matters that the Treasurer may take into account in deciding
whether to give a consent, for the purposes of paragraph (1)(b), to an ADI
effecting a demutualisation.
64
Conditions on consent to restructure an ADI
(1) The Treasurer’s consent under subsection
63(1) is subject to the conditions (if any) imposed by the Treasurer on the
consent.
(2) The Treasurer may, by written notice
given to the person who has been given the consent:
(a) impose conditions, or further
conditions, on the consent; or
(b) revoke or vary any condition
imposed on the consent; or
(c) revoke the consent if the
Treasurer is satisfied that there has been a contravention of a condition to
which the consent is subject.
(2A) The Treasurer must arrange for a copy of a
notice that has been given under subsection (2) to be published in the Gazette
as soon as practicable.
(3) The Treasurer’s powers under subsection (2)
may be exercised on the Treasurer’s own initiative. The Treasurer’s powers
under paragraph (2)(a) or (b) may be exercised on application made to the
Treasurer by the person who has been given the consent.
65
ADIs and authorised NOHCs may be
directed to comply with Act
(1) Where an ADI or an authorised NOHC is
convicted of an offence against this Act or the regulations, a Full Court of
the Federal Court of Australia may, upon the application of the Attorney‑General
by motion, direct compliance by the ADI or NOHC, within a period specified by
the Court, with the provisions of this Act or the regulations with which the
ADI or NOHC has failed to comply.
(2) In default of compliance by the ADI or
NOHC within the specified period with a direction given in pursuance of subsection (1),
the Federal Court of Australia may authorize APRA to assume control of, and to
carry on, the business of the ADI or NOHC.
(3) The provisions of Subdivision B of
Division 2 of Part II have effect, so far as they are applicable, as
if they also extended to APRA being in control of the business of the ADI or
NOHC under subsection (2) of this section, and as if they covered
authorised NOHCs in the same way as they cover ADIs.
(4) Where APRA has assumed control of the
business of the ADI or NOHC under subsection (2), APRA shall remain in
control of, and shall continue to carry on, the business of the ADI or NOHC
until such time as the Federal Court of Australia is satisfied that it is no
longer necessary for APRA to remain in control of the business of the ADI or
NOHC and authorizes APRA to cease to control the business of the ADI or NOHC.
65A
Injunctions
Restraining injunctions
(1) If a person has engaged, is engaging or
is proposing to engage, in conduct that constituted, constitutes or would
constitute:
(a) a contravention of a provision of
section 7, 8, 66, 66A or 67, or a condition imposed under section 64;
or
(b) attempting to contravene the
provision or condition; or
(c) aiding, abetting, counselling or
procuring a person to contravene the provision or condition; or
(d) inducing or attempting to induce,
whether by threats, promises or otherwise, a person to contravene the provision
or condition; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of the provision or condition; or
(f) conspiring with others to
contravene the provision or condition;
the Federal Court of Australia may grant an injunction in
accordance with subsection (2).
(2) The injunction:
(a) may restrain the person from
engaging in the conduct; and
(b) may also require that person to do
a particular act or thing, if the Court thinks it desirable to do so.
The Court may grant the injunction on such terms as it
thinks appropriate.
(3) The power of the Court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any other person if the person engages
in conduct of that kind.
Performance injunctions
(4) If a person has refused or failed, is
refusing or failing, or is proposing to refuse or fail, to do an act or thing
that the person is required:
(a) by a provision of section 7,
8, 66, 66A or 67 to do; or
(b) by a condition on a consent given
under subsection 63(1);
the Court may grant an injunction requiring the person to
do that act or thing. It may grant the injunction on such terms as the Court
thinks appropriate.
(5) The power of the Court to grant an
injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the
Court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing; and
(c) whether or not there is an
imminent danger of substantial damage to any other person if the person refuses
or fails to do that act or thing.
Who may apply for an injunction
(6) The Court may only grant an injunction on
the application of:
(a) APRA—in all cases; or
(b) the Treasurer—in the case of a
contravention of a condition imposed under section 64; or
(c) ASIC or a member of the ADI—in the
case of a contravention of a condition imposed under section 64 that has
been imposed in relation to a demutualisation of an ADI.
In this subsection, demutualisation has the
same meaning as in section 63.
Consent injunctions
(7) If an application for an injunction under
subsection (1) or (4) has been made, the Court may, if the Court thinks it
appropriate, grant an injunction by consent of all the parties to the
proceedings, whether or not the Court is satisfied that the subsection applies.
Interim injunctions
(8) The Court may grant an interim injunction
pending determination of an application under subsection (1).
Variation or discharge of injunctions
(9) The Court may discharge or vary an
injunction granted under subsection (1), (4) or (7).
Damages undertakings
(10) APRA, ASIC and the Treasurer cannot be
required, as a condition of granting an interim injunction, to give an
undertaking as to damages.
Damages orders
(11) If the Court has power under this section
to grant an injunction restraining a person from engaging in particular conduct,
or requiring a person to do a particular act or thing, the Court may, either in
addition to or in substitution for the grant of the injunction, order that
person to pay damages to any other person.
(12) The powers conferred on the Court by this
section are in addition to any other of its powers, and do not derogate from
its other powers.
65B
Civil penalties
Schedule 2 (Civil penalties) has
effect.
66
Restriction on use of certain words and expressions
(1) A person is guilty of an offence if:
(a) the person carries on a financial
business, whether or not in Australia; and
(b) the person assumes or uses, in Australia,
a restricted word or expression in relation to that financial business; and
(c) neither subsection (1AB) nor subsection (1AC)
allows that assumption or use of that word or expression; and
(d) APRA did not consent to that
assumption or use of that word or expression; and
(e) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: For the meanings of restricted word or
expression, assume or use and financial business,
see subsection (4).
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1AA) If a person
assumes or uses a word or expression in circumstances that give rise to the
person committing an offence against subsection (1), the person is guilty
of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(1AB) It is not an offence against subsection (1)
for the Reserve Bank to assume or use the words bank, banker
or banking in relation to its financial business.
(1AC) It is not an offence against subsection (1)
for an ADI to assume or use the word banking in referring to the
fact that it has been granted an authority under this Act.
Note: For example, an ADI may, in its letterhead,
refer to itself as being authorised under the Banking Act 1959 to carry
on banking business.
(1B) A consent may be expressed to apply to a
particular person or to persons included in a class of persons.
(2) APRA may, at any time:
(a) impose conditions, or additional
conditions, on a consent; or
(b) vary or revoke conditions imposed
on a consent; or
(c) revoke a consent.
(2A) The form of the granting of a consent, or
the taking of action under subsection (2) in relation to a consent, is to
be as follows:
(a) if the consent applies to a
particular person—notice in writing served on the person;
(b) if the consent applies to a class
of persons—notice in writing published in the Gazette.
(2B) If APRA:
(a) grants
a consent; or
(b) takes action under subsection (2)
in relation to a consent;
APRA must give ASIC notice of the granting of the consent
or the taking of the action.
(2C) Part VI applies to the following
decisions made under this section:
(a) a decision to refuse consent to a
particular person;
(b) a decision to impose conditions,
or additional conditions, on a consent that applies to a particular person;
(c) a decision to vary conditions
imposed on a consent that applies to a particular person;
(d) a decision to revoke a consent
that applies to a particular person.
(3) A person is guilty of an offence if:
(a) the person has been given a
consent under this section; and
(b) the person contravenes a condition
to which the consent is subject; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3A) If a person does or fails to do an act in
circumstances that give rise to the person committing an offence against subsection (3),
the person is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(4) In this
section:
(a) a reference to a restricted word
or expression is a reference to:
(i) the word bank,
banker or banking; or
(ii) the expression building
society, credit union or credit society; or
(iii) any other word or
expression specified in a determination in force under subsection (5); or
(iv) any other word or
expression (whether or not in English) that is of like import to a word or
expression covered by any of the previous subparagraphs; and
(b) a reference to a word or
expression being assumed or used includes a reference to the word or expression
being assumed or used:
(i) as part of another
word or expression; or
(ii) in combination with
other words, letters or other symbols; and
(c) a reference to a financial
business is a reference to a business that:
(i) consists of, or
includes, the provision of financial services; or
(ii) relates, in whole or
in part, to the provision of financial services.
(5) APRA may, by legislative instrument,
determine that a specified word or expression is to be a restricted word or
expression for the purposes of this section.
66A
Restriction on use of expressions authorised deposit‑taking
institution and ADI
(1) A person, other than an ADI, is guilty of
an offence if:
(a) the person carries on a financial
business, whether or not in Australia; and
(b) the person assumes or uses, in Australia,
the expression authorised deposit‑taking institution, or ADI,
in relation to that financial business; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: For the meanings of assume or use
and financial business, see subsection (2).
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1A) If a person assumes or uses an expression
in circumstances that give rise to the person committing an offence against subsection (1),
the person is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(2) In this
section:
(a) a reference to an expression being
assumed or used includes a reference to the expression being assumed or used:
(i) as part of another
expression; or
(ii) in combination with
other words, letters or other symbols; and
(b) a reference to a financial
business is a reference to a business that:
(i) consists of, or
includes, the provision of financial services; or
(ii) relates, in whole or
in part, to the provision of financial services.
(3) However,
this section does not prohibit the use of the letters ADI as part of another
word.
Note: For example, the letters adi
appear in the word traditional. Use of the word traditional
is not prohibited by this section.
67
Restriction on establishment or maintenance of representative offices of
overseas banks
(1) A person, other than an ADI, is guilty of
an offence if:
(a) the person carries on banking
business in a foreign country but does not carry on banking business in Australia;
and
(b) the person establishes or
maintains an office in Australia wholly or partly in connection with the
carrying on of that banking business in that foreign country; and
(c) APRA did not consent, in writing,
to the establishment or maintenance of that office; and
(d) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(1A) If a person establishes or maintains an
office in circumstances that give rise to the person committing an offence
against subsection (1), the person is guilty of an offence against that
subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(2) APRA may, at any time, by notice in writing
served on the person concerned:
(a) impose conditions, or additional
conditions, on a consent;
(b) vary or revoke conditions imposed
on a consent; or
(c) revoke a consent.
(3) A person is guilty of an offence if:
(a) the person has been given a
consent under this section; and
(b) the person contravenes a condition
to which the consent is subject; and
(c) there is no determination in force
under section 11 that this subsection does not apply to the person.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(4) If a person does or fails to do an Act in
circumstances that give rise to the person committing an offence against subsection (3),
the person is guilty of an offence against that subsection in respect of:
(a) the first day on which the offence
is committed; and
(b) each subsequent day (if any) on
which the circumstances that gave rise to the person committing the offence
continue (including the day of conviction for any such offence or any later
day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences
against this Act or the regulations.
(5) Part VI applies to the following
decisions made under this section:
(a) a decision to refuse consent;
(b) a decision to impose conditions,
or additional conditions, on a consent;
(c) a decision to vary conditions
imposed on a consent;
(d) a decision to revoke a consent.
68
Bank holidays
(1) The Treasurer may, by notice published in
the Gazette, declare a day specified in the notice to be a bank holiday.
(2) An ADI is not, on a day so declared to be
a bank holiday, compellable to make a payment or to do any other act that the
ADI would not be compellable to make or do on a Sunday and the obligation to
make the payment or to do the act shall be deemed to be an obligation to make
the payment or to do the act on the next day which is not a Sunday, a bank
holiday or a public holiday.
(3) This section does not affect the
operation of any law of a State or Territory relating to bank holidays or
public holidays.
(4) In this
section:
ADI includes the Reserve Bank.
69
Unclaimed moneys
(1) For the purposes of this section, unclaimed
moneys means all principal, interest, dividends, bonuses, profits and
sums of money legally payable by an ADI but in respect of which the time within
which proceedings may be taken for the recovery thereof has expired, and
includes moneys to the credit of an account that has not been operated on
either by deposit or withdrawal for a period of not less than 7 years.
(2) For the purposes of subsection (1),
the debiting of a fee to an account shall be deemed not to be a withdrawal and
the crediting to an account of interest payable by an ADI on that account shall
be deemed not to be a deposit.
(3) An ADI shall, within 3 months after the
31 December in each year, deliver to the Treasurer a statement, complying
with subsection (4) and any regulations under subsection (3), of all
sums of unclaimed moneys, other than unclaimed moneys held in RSAs (within the
meaning of the Retirement Savings Accounts Act 1997) or FHSAs (within
the meaning of the First Home Saver Accounts Act 2008), of not less than
$100 or such higher amount as is prescribed.
Note: The First Home Saver Accounts Act 2008
deals with unclaimed money held in FHSAs.
(3AA) The ADI is guilty of an offence if:
(a) it does not give the Treasurer a
statement as required by subsection (3); and
(b) there is no determination in force
under section 11 that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(3A) The regulations may require the statement
to be delivered in a specified form in a specified kind of disk, tape, film or
other medium.
(4) The
statement shall set out:
(a) the name, and the last‑known
address, of each shareholder, depositor or creditor; and
(b) the amount due; and
(c) in the case of moneys to the
credit of an account—the office or branch of the ADI at which the account was
kept.
(5) The total amount shown in the statement
shall be paid by the ADI to the Commonwealth at the time of the delivery of the
statement.
(5A) The ADI is guilty of an offence if:
(a) it does not pay, at the time of
the delivery of the statement, the amount specified in the statement, as
required by subsection (5); and
(b) there is no determination in force
under section 11 that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(6) Subject to subsection (7), an ADI is,
upon payment to the Commonwealth of an amount as required by this section,
discharged from further liability in respect of that amount.
(7) Where unclaimed moneys have been paid to
the Commonwealth under this section and the Treasurer or an authorized officer
is satisfied that, but for subsection (6), a person would be paid those
unclaimed moneys by the ADI by which they were paid to the Commonwealth (or, if
that ADI is no longer carrying on banking business, by an ADI to which the
business of the first‑mentioned ADI has been sold or disposed of), those
unclaimed moneys shall be paid to that ADI and the ADI shall thereupon pay
those moneys to that person.
(7A) The ADI is
guilty of an offence if:
(a) it does not pay moneys to a person
as required by subsection (7); and
(b) there is no determination in force
under section 11 that this subsection does not apply to the ADI.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows
a court to impose a fine of up to 5 times the penalty stated above.
(8) The Consolidated Revenue Fund is
appropriated for the purposes of, and to the extent necessary to give effect
to, subsection (7).
(9) The Treasurer shall cause particulars of
every sum shown in a statement delivered under this section to be:
(a) published in the Gazette;
or
(b) made available to the public (whether
or not on the payment of a fee) in such other manner as the Treasurer
determines.
(11) The Treasurer or an ADI may apply to the
Federal Court of Australia for a declaration whether any moneys are or are not
unclaimed moneys within the meaning of this section and the Federal Court of
Australia may make a declaration accordingly.
(11A) It is the
intention of the Parliament that a law of a State or Territory has no effect
insofar as it requires an ADI to:
(a) pay unclaimed moneys to, or to an
authority of, a State or Territory; or
(b) lodge a return relating to
unclaimed moneys with, or with an authority of, a State or Territory.
(11B) The Treasurer may, by instrument in
writing, delegate any of his of her functions or powers under this section to:
(a) a Commonwealth authority for which
the Treasurer is the responsible Minister; or
(b) a member, or staff member, of such
an authority.
In this section, Commonwealth authority and responsible
Minister have the respective meanings given by the Commonwealth
Authorities and Companies Act 1997.
(11C) The reference to the Treasurer in paragraph (3AA)(a)
is to be read as including a reference to the authority or person to whom the
Treasurer has delegated his or her function under subsection (3).
(12) In this
section:
authorized officer, means the Secretary to
the Department of the Treasury or an officer of that Department authorized by
the Secretary to act under this section.
69AA
Powers about money of depositors who have died
(1) If a depositor of an ADI dies, the ADI
may apply an amount not exceeding $15,000 held by the ADI that was deposited or
paid up on a withdrawable share by the deceased person:
(a) in payment of the deceased
person’s funeral expenses or debts; or
(b) in payment to the executor of the
deceased person’s will; or
(c) in payment to anyone else who is,
in the ADI’s opinion, entitled to the amount, having regard to the laws of
probate and accepted practice for the administration of deceased estates.
The amount may be applied without production of probate,
of the will or letters of administration of the estate.
(2) No action lies against an ADI for acting,
or failing to act, under subsection (1).
69C
Conduct of directors, servants and agents
(3) Where it is necessary to establish, for the
purposes of this Act or the regulations, the state of mind of a person other
than a body corporate in relation to particular conduct, it is sufficient to
show:
(a) that the conduct was engaged in by
a servant or agent of the person within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
person other than a body corporate by a servant or agent of the person within
the scope of his or her actual or apparent authority shall be deemed, for the
purposes of this Act and the regulations, to have been engaged in also by the
first‑mentioned person unless the first‑mentioned person
establishes that the first‑mentioned person took reasonable precautions
and exercised due diligence to avoid the conduct.
(5) Where:
(a) a person other than a body
corporate is convicted of an offence; and
(b) the person would not have been
convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(6) A reference in subsection (3) to the
state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
Note: For provisions relating to proof of offences
by bodies corporate, see Part 2.5 of the Criminal Code.
69D
Disclosure of information received under Act prohibited in certain
circumstances
Part 6 of the Australian
Prudential Regulation Authority Act 1998 prohibits certain disclosures of
information received under this Act.
69E
Compensation for acquisition of property
(1) If:
(a) apart from this section, the
operation of this Act would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the acquisition would be invalid
because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay to the person
compensation of a reasonable amount as agreed on between the Commonwealth and
the person. If the Commonwealth and the person do not agree on the amount of
the compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the Court determines.
(2) Any damages or compensation recovered or
other remedy given in a proceeding that is commenced otherwise than under this
section is to be taken into account in assessing compensation payable in a
proceeding that is commenced under this section and that arises out of the same
event or transaction.
(3) In this section:
acquisition of property and just terms
have the same respective meanings as in paragraph 51(xxxi) of the Constitution.
69F
Severability
Act also has effect as provided in this section
(1) Without prejudice to its effect apart
from this section, this Act also has effect as provided by this section.
References to a NOHC of an ADI
(2) This Act has, by force of this
subsection, the effect it would have if the Act separately provided as
mentioned in the following paragraphs:
(a) the Act has effect as if a
reference to a NOHC of an ADI were expressly limited to a reference to a NOHC
of an ADI that carries on banking business as mentioned in paragraph (a)
of the banking business definition;
(b) the Act has effect as if a
reference to a NOHC of an ADI were expressly limited to a reference to a NOHC
of an ADI that carries on banking business as mentioned in paragraph (b)
of the banking business definition.
References to a subsidiary of an ADI
(3) This Act has, by force of this
subsection, the effect it would have if the Act separately provided as
mentioned in the following paragraphs:
(a) the Act has effect as if a
reference to a subsidiary of an ADI were expressly limited to a reference to a
subsidiary of an ADI, being a subsidiary that is a corporation to which
paragraph 51(xx) of the Constitution applies;
(b) this Act has effect as if a
reference to a subsidiary of an ADI were expressly limited to a reference to a
subsidiary of an ADI, being an ADI that carries on banking business as
mentioned in paragraph (a) of the banking business definition;
(c) this Act has effect as if a
reference to a subsidiary of an ADI were expressly limited to a reference to a
subsidiary of an ADI, being an ADI that carries on banking business as
mentioned in paragraph (b) of the banking business definition.
References to a subsidiary of a foreign corporation
(3A) This Act has, by force of this subsection,
the effect it would have if the Act separately provided as mentioned in the
following paragraphs:
(a) the Act has effect as if a
reference to a subsidiary of a foreign corporation were expressly limited to a
reference to a subsidiary of a foreign corporation, being a subsidiary that is
a corporation to which paragraph 51(xx) of the Constitution applies;
(b) the Act has effect as if a
reference to a subsidiary of a foreign corporation were expressly limited to a
reference to a subsidiary of a foreign corporation, being a subsidiary that
carries on banking business as mentioned in paragraph (a) of the banking
business definition;
(c) the Act has effect as if a
reference to a subsidiary of a foreign corporation were expressly limited to a
reference to a subsidiary of a foreign corporation, being a subsidiary that
carries on banking business as mentioned in paragraph (b) of the banking
business definition.
References to a body corporate that is a member of a
relevant group of bodies corporate
(3B) This Act has, by force of this subsection,
the effect it would have if the Act separately provided as mentioned in the
following paragraphs:
(a) the Act has effect as if a
reference to a body corporate that is a member of a relevant group of bodies
corporate were expressly limited to a reference to a body corporate, being a
body corporate that is a corporation to which paragraph 51(xx) of the
Constitution applies;
(b) the Act has effect as if a
reference to a body corporate that is a member of a relevant group of bodies
corporate were expressly limited to a reference to a body corporate, being a
body corporate that carries on banking business as mentioned in paragraph (a)
of the banking business definition;
(c) the Act has effect as if a
reference to a body corporate that is a member of a relevant group of bodies
corporate were expressly limited to a reference to a body corporate, being a
body corporate that carries on banking business as mentioned in paragraph (b)
of the banking business definition;
References to a subsidiary of an authorised NOHC
(4) This Act has, by force of this
subsection, the effect it would have if the Act separately provided as
mentioned in the following paragraphs:
(a) the Act has effect as if a
reference to a subsidiary of an authorised NOHC were expressly limited to a
reference to a subsidiary of an authorised NOHC, being a subsidiary that is a
corporation to which paragraph 51(xx) of the Constitution applies;
(b) this Act has effect as if a
reference to a subsidiary of an authorised NOHC were expressly limited to a
reference to a subsidiary of an authorised NOHC, being a NOHC of an ADI that
carries on banking business as mentioned in paragraph (a) of the banking
business definition;
(c) this Act has effect as if a
reference to a subsidiary of an authorised NOHC were expressly limited to a
reference to a subsidiary of an authorised NOHC, being a NOHC of an ADI that
carries on banking business as mentioned in paragraph (b) of the banking
business definition.
Interpretation
(5) In this
section:
banking business definition means the
definition of banking business in subsection 5(1).
70A
Protection from liability
(1) A person is not subject to any liability
to any person in respect of anything done, or omitted to be done, in good faith
and without negligence in the exercise or performance, or the purported
exercise or performance, of powers, functions or duties under this Act.
(2) To avoid doubt, any information provided
by a person to APRA under section 16C is taken, for the purposes of subsection (1),
to be provided in the exercise of a power or the performance of a function
under this Act.
(3) Subsection (1) does not apply to a
person referred to in section 58 of the Australian Prudential
Regulation Authority Act 1998 and, to avoid doubt, does not affect the
operation of that section.
70B
Act has effect despite the Corporations Act
This Act has effect despite any
provision of theCorporations Act 2001.
70C
Authorising contracts etc. for protecting depositors’ interests and financial
system stability
Authorising the making of contracts and arrangements
(1) With the Finance Minister’s written
approval, the Minister may authorise the making of contracts and arrangements
by the Commonwealth for the purposes of:
(a) protecting the interests of
depositors of ADIs in ways that are consistent with the continued development
of a viable, competitive and innovative banking industry; or
(b) protecting financial system
stability in Australia.
Specifying amounts to be credited to Special Account
(2) The authorisation must specify the amount
(if any) to be credited to the Financial System Stability Special Account, so
that the total described in subsection (3) does not exceed by more than
$20,000,000,000 the total described in subsection (4).
Note: This ensures that the balance of the Special
Account directly attributable to authorisations under this section cannot
exceed $20,000,000,000 at any time.
(3) The total described in this subsection is
the total of all the amounts specified under subsection (2) in
authorisations made under this section (taking account of any amendments of
those authorisations).
(4) The total described in this subsection is
the total of all the amounts taken under subsection 21(2) of the Financial
Management and Accountability Act 1997 to be debited from the Financial
System Stability Special Account for expenditure for the purpose described in
paragraph 70G(a) of this Act.
Note: That purpose is making a payment under a
contract or arrangement whose making was authorised under this section.
Amending specification of amount to be credited
(5) The Minister may amend an authorisation
made under this section, but only to change the specification of an amount
under subsection (2), within the limit set out in that subsection.
Authorisation cannot be revoked
(6) The Minister cannot revoke an
authorisation made under this section.
Authorisation or amendment not disallowable or subject
to expiry
(7) An authorisation or amendment made under
this section is a legislative instrument, but neither section 42
(disallowance) nor Part 6 (sunsetting) of the Legislative Instruments
Act 2003 applies to the authorisation or amendment.
When authorisation or amendment takes effect
(8) The authorisation or amendment takes
effect from the time it is made, despite subsections 12(1) and (2) of the Legislative
Instruments Act 2003.
70D
Borrowing funds for payments under authorised contracts etc.
(1) Subsection (2) applies if the
Minister has determined under section 70C an amount to be credited to the
Financial System Stability Special Account.
(2) On behalf of the Commonwealth, the
Minister may, with the Finance Minister’s written approval, borrow money for
not more than 24 months on terms and conditions specified in, or consistent
with, the approval, so that the total unrepaid borrowing under this section is
not more than $20,000,000,000 at any time.
(3) The Finance Minister may delegate, in writing,
to an SES employee or acting SES employee in the Department that is
administered by the Finance Minister, the Finance Minister’s power of approval
for the purposes of subsection (2).
(4) In this section:
borrow includes raise money or obtain credit,
whether by dealing in securities or otherwise, but does not include obtain
credit in a transaction forming part of the day‑to‑day operations
of the Commonwealth.
70E
Financial System Stability Special Account
(1) The Financial System Stability Special Account
is established by this section.
(2) The Account is a Special Account for the
purposes of the Financial Management and Accountability Act 1997.
70F
Credits to the Account
(1) There must be credited to the Account
amounts equal to the following:
(a) the amount specified in an
authorisation under any of the following sections as an amount to be credited
to the Account:
(i) section 70C;
(ii) section 131A of
the Insurance Act 1973;
(iii) section 251A of
the Life Insurance Act 1995;
(b) an amount borrowed under any of
the following sections:
(i) section 70D;
(ii) section 131B of
the Insurance Act 1973;
(iii) section 251B of
the Life Insurance Act 1995.
Note: An Appropriation Act may contain a provision
to the effect that, if any of the purposes of a Special Account is a purpose
that is covered by an item in the Appropriation Act (whether or not the item
expressly refers to the Special Account), then amounts may be debited against
the appropriation for that item and credited to that Special Account.
(2) To avoid doubt, if:
(a) the amount specified in an
authorisation described in paragraph (1)(a) is credited to the Account;
and
(b) the authorisation is later amended
so as to increase the amount;
only the increase, and not the whole of the increased
amount, is to be credited to the Account as a result of the amendment.
Note: Crediting the whole of the increased amount to
the Account would lead to double‑counting of the amount specified in the
authorisation before the amendment.
70G
Purposes of the Account
The purposes of the Account are as
follows:
(a) making a payment under a contract
or arrangement whose making was authorised under section 70C;
(b) making a payment under a contract
or arrangement whose making was authorised under section 131A of the Insurance
Act 1973;
(c) making a payment under a contract
or arrangement whose making was authorised under section 251A of the Life
Insurance Act 1995;
(d) repaying a borrowing, and paying
interest on a borrowing, made under any of the following sections:
(i) section 70D;
(ii) section 131B of
the Insurance Act 1973;
(iii) section 251B of
the Life Insurance Act 1995;
(e) meeting the expenses of
administering the Account.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
70H
Debits to reflect reduced amounts specified in authorisations
If an authorisation under any of the
following sections specifying an amount to be credited to the Account is
amended so as to reduce the amount, an amount equal to the reduction must be
debited from the Account:
(a) section 70C;
(b) section 131A of the Insurance
Act 1973;
(c) section 251A of the Life
Insurance Act 1995.
71
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters which by
this Act are required or permitted to be prescribed, or which are necessary or
convenient to be prescribed for carrying out or giving effect to this Act and,
in particular, prescribing penalties for offences against the regulations
which, except as otherwise provided by this Act, shall not exceed:
(a) if the offender is a natural
person—a fine of 50 penalty units; or
(b) if the offender is a body
corporate—a fine of 250 penalty units.
(2) Without limiting the generality of subsection (1),
the regulations may confer on APRA functions relating to the supervision of
ADIs and NOHCs in relation to prudential matters.
(3) The Governor‑General shall not make
regulations for or in relation to requiring ADIs or NOHCs to observe
requirements in relation to prudential matters except in accordance with the
recommendation of the Treasurer.
(4) Before making a recommendation for the
purposes of subsection (3), the Treasurer shall consult APRA.