Banking Act 1959

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

This Act may be cited as the Banking Act 1959.

2 Commencement

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The following Acts are repealed: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 holds in its name, or keeps in its name, (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.

appointed auditor means an auditor appointed in accordance with the prudential standards.

approved form means a form approved, in writing, by APRA.

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 bond has the meaning given by subsection 26(1).

covered bond liabilities has the meaning given by subsections 26(4) and (5).

covered bond special purpose vehicle has the meaning given by subsection 26(1).

covered financial product has the meaning given by subsection (8).

cover pool has the meaning given by subsection 26(3).

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);

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 Public Governance, Performance and Accountability Act 2013.

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

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.

issuing ADI has the meaning given by subsection 26(6).

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

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.

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.

recapitalisation direction means a direction given by APRA under subsection 13E(1).

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

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 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.

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

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

(d) there is no determination in force under section 11 that this subsection does not apply to the body corporate.

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.

(2A) APRA may, by legislative instrument, set criteria for the granting of an authority to carry on banking business in Australia.

(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 another body corporate 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

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;

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 section 29; 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

(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.

(5A) The notice of revocation of the authority may state that the authority continues in effect in relation to a specified matter or specified period, as though the revocation had not happened, for the purposes of:

(a) a specified provision of this Act or the regulations; or

(b) a specified provision of another law of the Commonwealth that is administered by APRA; or

and the statement has effect accordingly.

(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

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;

(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

(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).

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.

(7) 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.

(1A) APRA may, by legislative instrument, set criteria for the granting of an authority under this section.

(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

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

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;

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:

(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

(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.

(5A) The notice of the revocation of the authority may state that the authority continues in effect in relation to a specified matter or specified period, as though the revocation had not happened, for the purposes of:

(a) a specified provision of this Act or the regulations; or

(b) a specified provision of another law of the Commonwealth that is administered by APRA; or

and the statement has effect accordingly.

(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

(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

(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.

(1AB) Without limiting the prudential matters in relation to which APRA may determine a standard, a standard may provide for matters relating to:

(a) the appointment of auditors; or

(b) the conduct of audits.

(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.

(7BA) A standard may provide for a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time, despite:

(a) section 46AA of the Acts Interpretation Act 1901; and

(b) section 14 of the Legislative Instruments Act 2003.

(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

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) Without limiting subsection (1AA), 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 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.

(1AA) Without limiting subsection (1), APRA may give a body corporate that is an ADI or is an authorised NOHC a direction of a kind specified in subsection (2) if:

(a) APRA has reason to believe that:

(i) a subsidiary of the body corporate is, or is about to become, unable to meet the subsidiary’s liabilities; or

(ii) there is, or there might be, a material risk to the security of the assets of a subsidiary of the body corporate; or

(iii) there has been, or there might be, a material deterioration in the financial condition of a subsidiary of the body corporate; or

(iv) a subsidiary of the body corporate is conducting the subsidiary’s affairs in an improper or financially unsound way; or

(v) a subsidiary of the body corporate is conducting the subsidiary’s affairs in a way that may cause or promote instability in the Australian financial system; and

(b) APRA considers that the direction is reasonably necessary for one or more prudential matters relating to the body corporate.

(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) or (1AA) as a result of which the direction is given.

(1B) In deciding whether to give a direction under subsection (1) or (1AA) to an ADI, APRA may disregard any external support for the ADI.

(1C) The regulations may specify that a particular form of support is not external support for the purposes of subsection (1B).

(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;

(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 or asset 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 or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution.

(2AA) However, APRA must not direct, or give a direction that would cause or require, a covered bond special purpose vehicle to:

(a) deal, or not deal, with an asset to the extent that the asset secures covered bond liabilities of an ADI; or

(b) make a payment, or not make a payment, in relation to a covered bond liability of an ADI.

Note: Covered bond special purpose vehicles hold assets that secure liabilities in relation to covered bonds: see Division 3A of Part II.

(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

(2B) Without limiting the generality of paragraph (2)(p), a direction under that paragraph to a foreign ADI may be any one or more of the following:

(a) a direction that the ADI act in a way that:

(i) a particular asset, or a particular class of assets, of the ADI is returned to the control (however described) of the part of the ADI’s banking business that is carried on in Australia; or

(ii) a particular liability, or a particular class of liabilities, of the ADI ceases to be the responsibility (however described) of the part of the ADI’s banking business that is carried on in Australia;

(b) a direction that the ADI not act in a way that:

(i) a particular asset, or a particular class of assets, of the ADI ceases to be under the control (however described) of the part of the ADI’s banking business that is carried on in Australia; or

(ii) a particular liability, or a particular class of liabilities, of the ADI becomes the responsibility (however described) of the part of the ADI’s banking business that is carried on in Australia.

(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;

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 or section 29 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;

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), or because of a direction under section 29, 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 or section 29. 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 or section 29.

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 or section 29. 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 or section 29 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 or section 29 in respect of a particular ADI or authorised NOHC; or

(b) any directions made during a specified period under Subdivision A or B or section 29 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 or section 29, 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, 23 or 29.

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, 23 or 29; 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.

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, 23 or 29 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

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).

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.

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.

(6) To avoid doubt, this section applies to an ADI that is, or becomes, an externally‑administered body corporate (within the meaning of the Corporations Act 2001) in the same way as this section applies to any other ADI.

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; or

(iv) it is likely that the ADI will be unable to carry on banking business in Australia consistently with the stability of the financial system in Australia; or

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 liabilities (if any) in Australia in relation to protected accounts that account‑holders keep with the ADI;

(d) fourth, the ADI’s debts (if any) to the Reserve Bank;

(e) fifth, the ADI’s liabilities (if any) under an industry support contract that is certified under section 11CB;

(f) sixth, the ADI’s other liabilities (if any) 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).

(3A) The assets of an ADI are taken for the purposes of subsection (3) not to include any interest in an asset (or a part of an asset) in a cover pool for which the ADI is the issuing 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 and any assets or other amount excluded by the prudential standards for the purposes of this subsection) 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.

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) For the purposes of subsection (4):

(a) the ADI’s deposit liabilities are taken not to include an amount equal to the total of the face values of all of the covered bonds issued by the ADI; and

(b) the assets of the ADI are taken not to include:

(i) any interest in an asset (or a part of an asset) in a cover pool for which the ADI is the issuing ADI; or

(ii) any loan to a covered bond special purpose vehicle that relates to an asset (or a part of an asset) in a cover pool for which the ADI is the issuing ADI.

(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.

(7) To avoid doubt, this section applies to an ADI that is, or becomes, an externally‑administered body corporate (within the meaning of the Corporations Act 2001) in the same way as this section applies to any other ADI.

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.

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

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 AA—Recapitalisation directions by APRA

13D Who this Subdivision applies to

This Subdivision applies to an ADI that:

(a) is a company that:

(i) is registered under the Corporations Act 2001; and

(ii) has a share capital; and

(b) does not have an ADI statutory manager.

13E Recapitalisation direction by APRA

(1) APRA may give an ADI a direction (a recapitalisation direction) that requires the ADI to increase the ADI’s level of capital to the level specified in the direction if:

(a) the ADI informs APRA that:

(i) the ADI considers that the ADI is likely to become unable to meet the ADI’s obligations; or

(ii) the ADI is about to suspend payment; or

(b) APRA considers that, in the absence of external support:

(i) the ADI may become unable to meet the ADI’s 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 the ADI’s depositors; or

(iv) it is likely that the ADI will be unable to carry on banking business in Australia consistently with the stability of the financial system in Australia; or

(i) becomes unable to meet the ADI’s obligations; or

(ii) suspends payment.

(2) In deciding whether to give a recapitalisation direction, APRA must consult with the Australian Competition and Consumer Commission (the ACCC), unless the ACCC notifies APRA, in writing, that the ACCC does not wish to be consulted about:

(a) the direction; or

(b) a class of directions that includes the direction.

(3) The regulations may specify that a particular form of support is not external support for the purposes of paragraph (1)(b).

(4) A recapitalisation direction is not a legislative instrument.

13F Additional contents of a recapitalisation direction

(1) A recapitalisation direction may direct the ADI to issue:

(a) shares, or rights to acquire shares, in the ADI; or

(b) other capital instruments of a kind specified in the direction.

(2) A direction for the purposes of paragraph (1)(a) may specify that the shares or rights must:

(a) be of a kind specified in the direction; or

(b) have the characteristics specified in the direction.

(3) A direction for the purposes of paragraph (1)(b):

(a) must not specify a kind of capital instrument unless that kind of capital instrument is specified in the regulations; and

(b) may specify that the capital instruments must have the characteristics specified in the direction.

13G Compliance with a recapitalisation direction

Giving members of the ADI notice of share issue etc.

(1) As soon as practicable after an ADI issues shares, rights to acquire shares, or other capital instruments, in compliance with a recapitalisation direction, the ADI must give written notice to the persons who were members (under section 231 of the Corporations Act 2001) of the ADI just before the issue.

(2) The notice must:

(a) identify the issue; and

(b) explain the effect of the issue of the shares, rights to acquire shares, or other capital instruments on the members’ interests.

Issue of shares etc. despite other laws etc.

(3) An ADI may issue shares, rights to acquire shares, or other capital instruments, in compliance with a recapitalisation direction despite:

(a) the Corporations Act 2001; and

(b) the ADI’s constitution; 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.

13H APRA must obtain expert’s report on the fair value of shares etc.

(1) APRA must comply with this section before giving a recapitalisation direction that directs an ADI to issue shares, or rights to acquire shares, in the ADI, unless APRA is satisfied that compliance with this section would detrimentally affect:

(a) the depositors with the ADI; or

(b) the stability of the financial system in Australia.

(2) APRA must:

(a) obtain a report on the fair value of the shares, or rights to acquire shares, in the ADI from an expert who is not an associate of the company under Division 2 of Part 1.2 of the Corporations Act 2001; and

(b) consider the report.

(3) The report must set out:

(a) the amount that is, in the expert’s opinion, the fair value for each of those shares or rights; and

(b) the reasons for forming the opinion; and

(i) the ADI; or

(ii) 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 the ADI or person advice, or acts on behalf of the ADI or person, in the proper performance of the functions attaching to the expert’s professional capacity or business relationship with the ADI or person; 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.

13J Determination of the fair value of shares by an expert

(1) In determining the fair value for each share in an ADI for the purposes of paragraph 13H(3)(a), the expert must:

(a) first, assess the value of the ADI as a whole, in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of the ADI; and

(b) then, allocate that value among the classes of shares in the ADI that:

(i) have been issued; or

(ii) APRA proposes to direct be issued (taking into account the relative financial risk, and voting and distribution rights, of the classes); and

(i) have been issued; or

(ii) APRA proposes to direct be issued (without allowing a premium or applying a discount for particular shares in that class).

(2) The Minister may give the expert written notice of assumptions for the valuation of the company.

(3) The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions.

(4) A notice given under subsection (2) or (3) is not a legislative instrument.

13K Determination of the fair value of rights by an expert

(1) In determining the fair value for each right to acquire shares in an ADI for the purposes of paragraph 13H(3)(a), the expert must act in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of that right.

(2) The Minister may give the expert written notice of assumptions for the valuation of such rights.

(3) The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions.

(4) A notice given under subsection (2) or (3) is not a legislative instrument.

13L Ascertaining the fair value of other capital instruments

(1) APRA must comply with this section before giving a recapitalisation direction that directs an ADI to issue capital instruments other than shares, or rights to acquire shares, in the ADI.

(2) APRA must comply with any requirements of the regulations relating to ascertaining the fair value of the capital instruments.

(3) Regulations made for the purposes of this section may specify different requirements in relation to different kinds of capital instruments.

13M Contravention of certain provisions does not affect the validity of recapitalisation direction etc.

A contravention of:

(a) section 13H or subsection 13J(1) or 13K(1); or

(b) section 13L or regulations made for the purposes of that subsection;

does not affect the validity of a recapitalisation direction or anything done in compliance with the direction.

13N Recapitalisation direction 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:

(a) Australian law, including the law of a State or Territory; or

(b) law of a foreign country, including the law of part of a foreign country.

(2) The fact that the ADI is subject to a recapitalisation direction does not allow the contract, or a party to the contract, other than the ADI, to do any of the following:

(a) deny any obligation under the contract;

(b) accelerate any debt under the contract;

13P Supply of information about issue and revocation of recapitalisation directions

Power to publish notice of recapitalisation directions in Gazette

(1) APRA may publish in the Gazette notice of a recapitalisation direction.

(2) The notice must include:

(a) the name of the ADI that is given the direction; and

(b) a summary of the direction.

Requirement to publish notice of revocation of certain recapitalisation directions in Gazette

(3) If APRA publishes notice of a recapitalisation direction and later revokes the direction, APRA must publish in the Gazette notice of that revocation as soon as practicable after the revocation.

(4) Failure to publish notice of the revocation does not affect the validity of the revocation.

Requirement to provide information about recapitalisation direction to Minister and Reserve Bank

(5) If the Minister or the Reserve Bank requests APRA to provide information about:

(a) any recapitalisation directions in respect of a particular ADI; or

(b) any recapitalisation directions made during a specified period in respect of any ADIs;

APRA must comply with the request.

Power to inform Minister and Reserve Bank of recapitalisation direction

(6) APRA may provide any information that APRA considers appropriate to the Minister or the Reserve Bank about any recapitalisation directions, or revocations of recapitalisation directions, in respect of any ADI, at any time.

Requirement to inform Minister and Reserve Bank of revocation of recapitalisation direction if informed of making of direction

(7) If APRA:

(a) provides the Minister or the Reserve Bank with information about a recapitalisation direction; and

(b) later revokes the direction;

APRA must notify that person of the revocation of the direction as soon as practicable after the revocation.

(8) Failure to notify the person does not affect the validity of the revocation.

Secrecy requirements

(9) Information relating to recapitalisation directions and revocations of recapitalisation 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.

13Q Non‑compliance with a recapitalisation direction

(1) An ADI commits an offence if:

(a) the ADI does, or refuses or fails to do, an act; and

(b) doing, or refusing or failing to do, the act results in a contravention of a recapitalisation direction given to the ADI.

Penalty: 50 penalty units.

(2) However, subsection (1) does not apply if:

(a) the ADI made reasonable efforts to comply with the recapitalisation direction; and

(b) the ADI’s contravention is due to circumstances beyond the ADI’s control.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) If an ADI does, or refuses or fails to do, an act in circumstances that give rise to the ADI committing an offence against subsection (1), the ADI 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 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.

(4) An officer of an ADI commits an offence if:

(a) the officer refuses or fails to take reasonable steps to ensure that the ADI complies with a recapitalisation direction given to the ADI; and

(b) the officer’s duties include ensuring that the ADI complies with the direction, or with a class of directions that includes the direction.

Penalty: 50 penalty units.

(5) If an officer of an ADI refuses or fails to take reasonable steps to ensure that the ADI complies with a recapitalisation direction given to the ADI in circumstances that give rise to the officer committing an offence against subsection (4), 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 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) In this section, officer has the meaning given by section 9 of the Corporations Act 2001.

13R Exceptions to Part IV of the Competition and Consumer Act 2010

For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, the following things are specified and specifically authorised:

(a) the acquisition of shares in an ADI as a direct result of:

(i) the issue of the shares in compliance with a recapitalisation direction given to the ADI; or

(ii) the exercise of a right to acquire shares that was issued in compliance with such a recapitalisation direction;

(b) the acquisition of other capital instruments as a direct result of the issue of the other capital instruments in compliance with a recapitalisation direction given to an ADI.

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

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

(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

(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

(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

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;

14AD APRA may require a person to give information etc. for the purposes of this Division

APRA may require person to give information etc.

(1) APRA may require a person, by written notice given to the person, to give APRA information, or documents containing information, relating to the business of an ADI that has an ADI statutory manager if:

(a) in a case where the ADI statutory manager is APRA:

(i) APRA believes, on reasonable grounds, that the person has such information or documents; and

(ii) APRA requires the information or documents for the purposes of this Division; and

(b) in a case where the ADI statutory manager is not APRA:

(i) the ADI statutory manager requests, in writing, that APRA require the person to give the information or documents under this subsection; and

(ii) APRA believes, on reasonable grounds, that the person has such information or documents; and

(iii) APRA is satisfied that the ADI statutory manager requires the information or documents for the purposes of this Division.

(2) The notice:

(a) must specify a period within which the information or documents must be given to APRA; and

(b) may specify the form and manner in which the information or documents must be given to APRA.

(3) The period specified under paragraph (2)(a) must be reasonable in all the circumstances.

Offence

(4) A person commits an offence if:

(a) APRA requires the person to give APRA information or documents under subsection (1); and

(b) the person refuses or fails to give the information or documents as required.

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

Self‑incrimination

(5) A person is not excused from complying with a requirement under subsection (1) to give information or documents on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.

(6) However, in the case of an individual:

(a) the information or document given; and

(b) giving the information or document; and

(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or document;

are 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 or document.

Section 14A not limited

(7) This section does not limit section 14A.

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 or section 29 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

(a) notify APRA as soon as practicable; and

(b) obtain APRA’s written consent before taking the action.

(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.

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

(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;

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

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 Competition and Consumer Act 2010

For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, 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

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

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.

(1A) The interest is payable at:

(a) the rate of interest that is payable according to the terms and conditions of the protected account; or

(b) if APRA considers that that rate is not certain—the rate of interest that APRA declares, in writing, is payable.

(1B) A declaration under paragraph (1A)(b) is not a legislative instrument.

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.

Pooled accounts

(3) If:

(a) one person holds the protected account mentioned in subsection (1); and

(b) the person is the trustee of 2 or more trusts; and

subsection (1) entitles the person to be paid, in connection with that account, the amount worked out under subsection (1).

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 33(3AB) 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).

16AHA Giving information about payments in a financial year

(1) This section applies if one or more amounts are paid to, or applied for the benefit of, one or more account‑holders in a financial year to meet (wholly or partly) the account‑holders’ entitlements under this Subdivision.

Giving each account‑holder an annual statement

(2) Within 14 days after the end of the financial year, APRA must give each of those account‑holders a statement about the amounts paid to, or applied for the benefit of, the account‑holder in the financial year. The statement must:

(a) be in the approved form; and

(b) name the account‑holder; and

(d) state the total of the amounts and the total of the amounts (if any) withheld from them under the Taxation Administration Act 1953; and

(e) specify the financial year to which the statement relates.

Giving the Commissioner of Taxation an annual report

(3) Within 4 months after the end of the financial year, APRA must give the Commissioner a report in the approved form about all the amounts described in subsection (1).

Provisions about statements and reports in approved forms

(4) Division 388 in Schedule 1 to the Taxation Administration Act 1953 applies as if this section were a taxation law for the purposes of that Act.

Note: That Division sets out rules about approved forms and when they can be given.

This section does not limit the Taxation Administration Act 1953

(5) Subsection (4) does not limit the operation of the Taxation Administration Act 1953 in relation to APRA.

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

(1) 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;

Note: APRA may amend or vary the requirement in writing: see subsection 33(3) of the Acts Interpretation Act 1901.

(2) Without limiting subsection (1), APRA may require a liquidator to assist APRA in APRA’s function of paying account holders their entitlements under Subdivision C.

(3) For example, APRA may, by notice issued under subsection (1), require the liquidator to do the things specified in the notice, including:

(a) carrying on the business of the ADI so far as necessary, or doing any other act or thing, to facilitate APRA’s payment to account holders in accordance with Subdivision C; or

(b) seeking the re‑entry of the ADI into a payment system (as defined in section 7 of the Payment Systems (Regulation) Act 1998); or

(4) The liquidator must give compliance with a notice issued under subsection (1) precedence over the other aspects of winding up the ADI, including any requirements under the Corporations Act 2001.

(5) However, the liquidator is not required to comply with a notice issued under subsection (1) unless there is sufficient available property to meet the liquidator’s costs likely to be incurred in complying with the notice in full, unless APRA indemnifies the liquidator for those costs.

(6) The liquidator has the powers that are necessary or convenient to comply with a notice issued under subsection (1).

(7) The liquidator’s costs of complying with a notice issued under subsection (1) are expenses properly incurred by a relevant authority for the purposes of section 556 of the Corporations Act 2001.

(8) A reference in this section to a liquidator’s costs includes:

(a) remuneration, or fees for services, payable to the liquidator for complying with a notice issued under subsection (1); and

(b) expenses incurred by the liquidator in complying with a notice issued under subsection (1).

(9) A reference in this section to a liquidator includes a reference to a provisional liquidator.

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);

(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;

(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;

(ea) preparing or giving a statement or report required by section 16AHA;

(eb) complying with an obligation under a law relating to taxation;

(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 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 Competition and Consumer Act 2010

16AU Exceptions to Part IV of the Competition and Consumer Act 2010

For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, 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;

Division 2A—Auditors of ADIs and authorised NOHCs and their subsidiaries

16AV Appointed auditor’s functions and duties

(1) This section applies if the prudential standards require an auditor to be appointed.

(2) The appointed auditor must perform the functions and duties of an auditor that are set out in the prudential standards.

(3) The appointed auditor must comply with the prudential standards in performing the functions and duties.

(4) The ADI or authorised NOHC to whom the prudential standards apply must make any arrangements that are necessary to enable the appointed auditor to perform the functions and duties.

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

(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.

Penalty: Imprisonment for 6 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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

(d) if an ADI is a subsidiary of a foreign corporation (whether or not the ADI is itself a foreign ADI):

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

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 section 29; 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 an 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

(d) if an ADI is a subsidiary of a foreign corporation (whether or not the ADI is itself a foreign ADI):

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.

16D Appointed auditor must notify APRA of attempts to unduly influence etc. the appointed auditor

(1) If an appointed auditor of an ADI or authorised NOHC is aware of circumstances that amount to:

(a) an attempt by any person to unduly influence, coerce, manipulate or mislead the appointed auditor in connection with the performance of the appointed auditor’s functions or duties; or

(b) an attempt by any person to otherwise interfere with the performance of the appointed auditor’s functions or duties;

the appointed auditor must notify APRA in writing of those circumstances as soon as practicable, and in any case within 28 days, after the appointed auditor becomes aware of those circumstances.

(2) An appointed auditor commits an offence if the appointed auditor contravenes subsection (1).

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

16E Giving false or misleading information to auditor

Offence—person knows the information is false or misleading etc.

(1) A person commits an offence if:

(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and

(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and

(d) the person knows that the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 5 years or 200 penalty units, or both.

Offence—person fails to ensure the information is not false or misleading etc.

(2) A person commits an offence if:

(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and

(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and

(d) the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect; and

(e) the person did not take reasonable steps to ensure that the information:

(i) was not false or misleading in a material particular; or

(ii) was not missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 2 years or 100 penalty units, or both.

Determining whether information is false or misleading

(3) If information is given to the appointed auditor in response to a question asked by the appointed auditor, the information and the question must be considered together in determining whether the information is false or misleading.

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 appointed 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

(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;

(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

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

(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

(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

(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;

(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

(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

(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.

22A Privilege against exposure to penalty—disqualification under section 21

Proceedings

(1) In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:

(a) to answer a question or give information; or

(b) to produce books, accounts or other documents; or

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 21.

(2) Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.

Statutory requirements

(3) A person is not entitled to refuse or fail to comply with a requirement under this Act:

(a) to answer a question or give information; or

(b) to produce books, accounts or other documents; or

Admissibility

(4) Subsections 14A(4), 14AD(6) and 52F(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 21.

Other provisions

(5) Subsections (1) and (3) of this section have effect despite anything in:

(a) clause 5 of Schedule 2; or

(b) any other provision of this Act; or

Definition

(6) In this section:

penalty includes forfeiture.

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

(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.

(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 3A—Covered bonds

24 Guide to this Division

This Division provides for the issue of covered bonds by ADIs.

An ADI issuing covered bonds must provide assets to secure the covered bonds and related liabilities. These assets are held by a covered bond special purpose vehicle. Some of the assets held by the covered bond special purpose vehicle form the cover pool for the covered bonds.

The ADI must not issue covered bonds if the combined value of assets in cover pools securing covered bonds issued by the ADI would exceed 8%, or such other percentage as is prescribed by the regulations, of the value of the ADI’s assets in Australia.

25 Application of Division

This Division does not apply in relation to:

(a) a foreign ADI; or

(b) a bond, note or other debenture, liabilities in relation to which are secured wholly by assets that are not in Australia.

26 Covered bonds

(1) Covered bonds are bonds, notes or other debentures issued by an ADI, liabilities to the holders of which, or their representatives, are:

(a) recoverable from the ADI; and

(b) secured by assets beneficially owned by a covered bond special purpose vehicle.

Purposes of covered bond special purpose vehicle

(2) The purposes of the covered bond special purpose vehicle must relate only to the covered bonds.

Cover pool

(3) The cover pool for the covered bonds consists of the assets beneficially owned by the covered bond special purpose vehicle to the extent that they secure the liabilities to the holders or representatives equally or in priority to any other liabilities.

Note 1: The value of the cover pool will usually exceed the value of the liabilities to the holders or representatives.

Note 2: Assets in cover pools may change from time to time.

Covered bond liabilities

(4) The liabilities to the holders or representatives, and any other liabilities secured by assets beneficially owned by the covered bond special purpose vehicle, are covered bond liabilities of the ADI.

Note: This means that liabilities incurred by the covered bond special purpose vehicle can be covered bond liabilities of the ADI.

(5) However, a liability to the ADI, other than a liability in relation to a derivative or the provision of services, secured in priority to any liability to the holders or representatives is not a covered bond liability of the ADI.

Issuing ADI

(6) The ADI is the issuing ADI for:

(a) the cover pool; and

(b) the covered bond special purpose vehicle.

27 Arrangements involving several ADIs

Aggregated issuing of covered bonds

(1) Two or more ADIs may enter into an arrangement with another entity (the aggregating entity) under which the aggregating entity issues bonds, notes or other debentures secured by covered bonds issued by each of the ADIs to the aggregating entity.

Other arrangements

(2) The regulations may prescribe other arrangements that may be entered into by 2 or more ADIs for the purposes of issuing or dealing with covered bonds.

28 Restrictions on issuing covered bonds—8% rule

An ADI must not issue a covered bond if the combined value of assets in cover pools securing covered bonds issued by the ADI would exceed 8%, or such other percentage as is prescribed by the regulations, of the value of the ADI’s assets in Australia.

29 Restrictions on issuing covered bonds—APRA directions

(1) APRA may direct an ADI not to issue a covered bond.

(2) APRA may, by written notice given to the ADI, give the ADI such a direction if:

(a) APRA has reason to believe that the ADI has contravened:

(i) this Division; or

(ii) another provision of this Act, a prudential requirement regulation or a prudential standard relating to covered bonds; or

(b) APRA has given the ADI a direction under section 11CA.

(3) A notice under subsection (2) is not a legislative instrument.

(4) The direction may deal with the time by which, or period during which, it is to be complied with.

(5) 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.

(6) APRA may, by notice in writing to the ADI, vary the direction if, at the time of the variation, it considers that the variation is necessary and appropriate.

(7) The direction has effect until APRA revokes it by notice in writing to the ADI. APRA may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

(8) Part VI applies to a decision to give a direction under subsection (1).

(9) Information relating to directions and revocations of directions under this section 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 of this Act.

(10) This section does not limit any other powers of APRA to give directions.

30 Cover pool monitors

(1) Each cover pool must have a cover pool monitor.

(2) The cover pool monitor must:

(a) be registered as an auditor under Part 9.2 of the Corporations Act 2001; or

(b) hold an Australian financial services licence under that Act that covers the provision of financial services as the cover pool monitor; or

(c) be exempt under that Act from holding an Australian financial services licence for the provision of financial services as the cover pool monitor.

(3) However, the cover pool monitor must not be:

(a) the issuing ADI for the cover pool; or

(b) an associated entity (within the meaning of the Corporations Act 2001) of the issuing ADI.

(4) The functions of the cover pool monitor are as follows:

(a) to assess the keeping, by the issuing ADI or covered bond special purpose vehicle concerned, of an accurate register of the assets in the cover pool;

(b) to assess compliance by the issuing ADI with sections 31 and 31A;

(c) to make reports relating to the matters in paragraphs (a) and (b) available to the issuing ADI (or any substituted entity) for distribution to the holders of covered bonds or their representatives;

(d) to provide reports relating to the cover pool to APRA on written request by APRA;

(e) such functions (if any) as are prescribed by the regulations.

(5) Copies of reports provided under paragraph (4)(d) must be provided to the issuing ADI (or any substituted entity) and the covered bond special purpose vehicle concerned.

(6) The functions covered by paragraphs (4)(a) to (c) must be performed at least every 6 months.

(7) The functions covered by paragraphs (4)(a) and (b) may be performed by sampling in accordance with auditing standards made under the Corporations Act 2001.

31 Assets that may be in cover pools

(1) An asset in a cover pool must be one of the following:

(a) an at call deposit held with an ADI and convertible into cash within 2 business days;

(b) a bank accepted bill or certificate of deposit that:

(i) matures within 100 days; and

(ii) is eligible for repurchase transactions with the Reserve Bank; and

(iii) was not issued by the ADI that issued the covered bonds secured by the assets in the cover pool;

(d) a loan secured by a mortgage, charge or other security interest over residential property in Australia;

(e) a loan secured by a mortgage, charge or other security interest over commercial property in Australia;

(f) a mortgage insurance policy or other asset related to a loan covered by paragraph (d) or (e);

(g) a contractual right relating to the holding or management of another asset in the cover pool;

(h) a derivative held for one or more of the following purposes:

(i) to protect the value of another asset in the cover pool;

(ii) to hedge risks in relation to another asset in the cover pool;

(iii) to hedge risks in relation to liabilities secured by the assets in the cover pool;

(i) an asset of a kind prescribed by the regulations for the purposes of this paragraph.

(2) Paragraph (1)(i) is not limited by paragraphs (1)(a) to (h).

(3) Despite subsection (1), a cover pool must not contain an asset of a kind prescribed by the regulations for the purposes of this subsection.

31A Maintenance of cover pools

(1) The value of assets in a cover pool must be at least 103%, or such other percentage as is prescribed by the regulations, of the face value of the covered bonds secured by the assets.

Note: An exception to this rule is set out in subsection (5).

(2) The value of assets covered by paragraph 31(1)(b) (bank accepted bills or certificates of deposit) in a cover pool must not exceed 15% of the face value of the covered bonds secured by the assets.

Note: An exception to this rule is set out in subsection (6).

(3) For the purposes of subsection (1), if the sum of:

(a) the outstanding principal amount of a loan secured by a residential property; and

(b) the outstanding principal amounts of any prior or equal ranking loans secured by the property;

exceeds 80%, or such other percentage as is prescribed by the regulations, of the value of the property (as determined by the most recent valuation of the property), then the value of the loan is reduced by the amount of the excess.

(4) For the purposes of subsection (1), if the sum of:

(a) the outstanding principal amount of a loan secured by a commercial property; and

(b) the outstanding principal amounts of any prior or equal ranking loans secured by the property;

exceeds 60%, or such other percentage as is prescribed by the regulations, of the value of the property (as determined by the most recent valuation of the property), then the value of the loan is reduced by the amount of the excess.

Exceptions

(5) Subsection (1) does not apply to the extent that compliance would be inconsistent with a direction given by APRA.

(6) Subsection (2) does not apply to the extent that compliance would be inconsistent with the need to deal with an asset to satisfy a call on security in relation to a covered bond.

31B Protection of certain contractual rights

Directions by APRA

(1) Subsection 11CD(1A) (direction not grounds for denial of obligations) does not prevent the exercise of a contractual right in relation to an asset that secures liabilities to holders of covered bonds, or their representatives, if payments under the covered bonds to the holders or representatives are not made.

ADI statutory manager in control

(2) Section 15C (ADI statutory manager being in control not grounds for denial of obligations) does not prevent the exercise of a contractual right in relation to an asset that secures liabilities to holders of covered bonds, or their representatives, if payments under the covered bonds to the holders or representatives are not made.

31C Powers and obligations of ADI statutory manager or external administrator

To the extent that an asset secures covered bond liabilities of an ADI, an ADI statutory manager or an external administrator has:

(a) no powers in relation to the asset apart from the contractual powers of the ADI; and

(b) the contractual obligations of the ADI in relation to the asset.

31D Prudential standards—treatment of assets and liabilities

(1) This section applies for the purposes of applying:

(a) prudential standards in relation to assets in cover pools securing covered bonds issued by an ADI; and

(b) any other prudential standard in relation to the ADI.

(2) Treat those assets as assets of the ADI to the extent that the total value of those assets at the time does not exceed 8%, or such other percentage as is prescribed by regulations made for the purposes of section 28, of the ADI’s assets in Australia.

(3) Disregard any liability of the ADI to a covered bond special purpose vehicle that relates to an asset, or a part of an asset, that is to be treated as an asset of the ADI under subsection (2).

(4) Disregard any liability of a covered bond special purpose vehicle to the ADI that relates to an asset, or a part of an asset, that is to be treated as an asset of the ADI under subsection (2).

31E Prudential standards for covered bonds

(1) A prudential standard may provide for any matter relating to covered bonds, including the following:

(a) the issuing of covered bonds;

(b) assets in cover pools;

Note: Prudential standards are made under section 11AF.

(2) A prudential standard relating to covered bonds may:

(a) require that the following together satisfy particular requirements in relation to prudential matters:

(i) an ADI;

(ii) one or more covered bond special purpose vehicles that beneficially own assets securing covered bond liabilities of the ADI; and

(b) impose, in relation to assets, or parts of assets, in cover pools that are not treated as assets of an ADI under section 31D, requirements that are different from requirements imposed in relation to assets, or parts of assets, in cover pools that are treated as assets of the ADI under that section; and

(c) impose, in relation to a liability of an ADI to a covered bond special purpose vehicle that is not covered by subsection 31D(3), requirements that are different from requirements imposed in relation to liabilities that are covered by that subsection; and

(d) impose, in relation to a liability of a covered bond special purpose vehicle to an ADI that is not covered by subsection 31D(4), requirements that are different from requirements imposed in relation to liabilities that are covered by that subsection.

(3) This section does not limit the prudential matters in relation to which APRA may determine standards under section 11AF.

31F APRA may direct covered bond special purpose vehicles to return certain assets

(1) APRA may, by written notice given to a covered bond special purpose vehicle, direct the covered bond special purpose vehicle to return to its issuing ADI an asset to the extent that, at the time the direction is given, the asset does not secure covered bond liabilities of the issuing ADI.

(2) Subsection (1) applies only if APRA may give the issuing ADI a direction under section 11CA.

(3) A notice under subsection (1) is not a legislative instrument.

(4) The direction may deal with the time by which, or period during which, it is to be complied with.

(5) The covered bond special purpose vehicle has power to comply with the direction despite anything in its constitution or any contract or arrangement to which it is a party.

(6) APRA may, by notice in writing to the covered bond special purpose vehicle, vary the direction if, at the time of the variation, it considers that the variation is necessary and appropriate.

(7) The direction has effect until APRA revokes it by notice in writing to the covered bond special purpose vehicle. APRA may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

(8) Part VI applies to a decision to give a direction under subsection (1).

(10) This section does not limit any other powers of APRA to give directions.

(11) If a direction is given under subsection (1), this Act applies in relation to the direction as if:

(a) the covered bond special purpose vehicle were an ADI; and

(b) the direction were given under section 29.

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.

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.

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.

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.

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

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

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

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

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

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

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

(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).

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).

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;

(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) an 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

(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

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

(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

(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) an 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

(i) an 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

(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

60 Keeping of financial records

Financial records must be kept in Australia etc.

(1) If an ADI is required, under section 286 of the Corporations Act 2001, to keep financial records (within the meaning of that Act), the ADI must keep the records:

(a) in the English language, or in a form in which the records are readily accessible and readily convertible into writing in the English language; and

(b) either:

(i) in Australia; or

(ii) if APRA gives written approval and the ADI meets the conditions (if any) specified in the approval—in another country specified in the approval.

(2) The approval may be given subject to specified conditions.

Notification of address where financial records are kept

(3) An ADI must notify APRA, in the approved form, of the address where the ADI’s financial records are kept:

(a) if, immediately before the commencement of this section, the ADI has a section 9 authority—within 28 days after that commencement; or

(b) otherwise—within 28 days after the ADI is granted a section 9 authority.

(4) If:

(a) an ADI has notified APRA of the address where the ADI’s financial records are kept; and

(b) the ADI moves the financial records to a new address;

the ADI must notify APRA, in the approved form, of the new address where the financial records are kept.

(5) The notification must be given within 28 days after the day on which the financial records are moved to the new address.

Offence

(6) An ADI commits an offence if the ADI contravenes subsection (1).

Penalty: 200 penalty units.

Merits review

(7) Part VI applies to the following decisions:

(a) a refusal to give an approval under paragraph (1)(b);

(b) a decision to give the approval subject to conditions.

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.

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

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.

(7) To avoid doubt, this section applies to a body corporate that is, or becomes, an externally‑administered body corporate (within the meaning of the Corporations Act 2001) in the same way as this section applies to any other body corporate.

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.

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.

(3) To avoid doubt, this section applies to a person that is, or becomes, an externally‑administered body corporate (within the meaning of the Corporations Act 2001) in the same way as this section applies to any other person.

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 an auditor of the member; and

(b) the auditor informs the member that the auditor has notified APRA in writing of the matter; and

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 section 29, 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) an 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.

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.

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:

(i) a provision of this Act, the regulations or the prudential standards; or

(ii) a condition imposed or specified under this Act; or

(iii) a direction by APRA under this Act; or

(b) attempting to contravene the provision, condition or direction; or

(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the provision, condition or direction; or

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the provision, condition or direction; or

(f) conspiring with others to contravene the provision, condition or direction;

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 this Act, the regulations or the prudential standards to do; or

(b) by a condition imposed or specified under this Act to do; or

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 this section.

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

(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.

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

(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;

(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

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

(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

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

(d) there is no determination in force under section 11 that this subsection does not apply to the person.

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

(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

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;

(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:

(a) 3 years; or

(b) if a greater number of years is specified in the regulations—that greater number of years;

beginning:

(d) if another time is ascertained in accordance with the regulations—at that other time.

(1AA) Subsection (1) has effect subject to subsections (1A), (1B), (1C), (1D) and (1E).

(1A) However, farm management deposits (within the meaning of the Income Tax Assessment Act 1997) are not unclaimed moneys.

(1B) However, moneys to the credit of an account specified in the regulations are unclaimed moneys if, and only if, the conditions specified in the regulations are satisfied.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(1C) However, deposits specified in the regulations are unclaimed moneys if, and only if, the conditions specified in the regulations are satisfied.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(1D) Subsection (1) does not apply to an account specified in the regulations.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(1E) Subsection (1) does not apply to a deposit specified in the regulations.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(2) For the purposes of this section, 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 must, 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 (3A), of all sums of unclaimed moneys of not less than $100 (or such other amount as is prescribed) as at the end of the year, other than unclaimed moneys:

(a) held in RSAs (within the meaning of the Retirement Savings Accounts Act 1997); or

(b) held in FHSAs (within the meaning of the First Home Saver Accounts Act 2008); or

(c) held in accounts with the ADI that are operated on either by deposit or withdrawal between the end of the year and the day the statement is delivered to the Treasurer.

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.

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 required to be paid under subsection (5); and

(5) The ADI must, at the time of the delivery of the statement, pay the Commonwealth an amount equal to the total of all sums of unclaimed moneys covered by subsection (3) in relation to the ADI, as at the end of the year.

(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 required by subsection (5); and

(b) there is no determination in force under section 11 that this subsection does not apply to the ADI.

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.

(7AA) If unclaimed moneys are paid to an ADI under subsection (7) on or after 1 July 2013:

(a) the Commonwealth must also pay to the ADI the amount of interest (if any) worked out in accordance with the regulations; and

(b) the ADI must pay that amount to the person.

(7AB) Regulations made for the purposes of paragraph (7AA)(a) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate.

(7AC) Interest under paragraph (7AA)(a) does not accrue in relation to a period before 1 July 2013.

(7A) The ADI is guilty of an offence if:

(a) it does not pay moneys to a person as required by subsection (7) or (7AA); and

(b) there is no determination in force under section 11 that this subsection does not apply to the ADI.

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.

(7B) If an ADI satisfies the Treasurer that an amount paid by the ADI under subsection (5) exceeds the amount that should have been paid under that subsection, the Treasurer must refund the amount of the excess.

(8) The Consolidated Revenue Fund is appropriated for the purposes of, and to the extent necessary to give effect to, subsections (7), (7AA) and (7B).

(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 or her functions or powers under this section to:

(a) a corporate Commonwealth entity for which the Treasurer is the responsible Minister; or

(b) a member, or staff member, of such an entity.

(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 of the Department of the Treasury or an officer of that Department authorized by the Secretary to act under this section.

corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

responsible Minister has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

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 the Corporations 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 80(3) of the Public Governance, Performance and Accountability Act 2013 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 Public Governance, Performance and Accountability Act 2013.

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 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with 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;

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.

Endnotes

Endnote 1—About the endnotes

The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments

Endnote 6—Modifications

Endnote 7—Misdescribed amendments

Endnote 8—Miscellaneous

If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.

Abbreviation key—Endnote 2

The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.

Uncommenced amendments—Endnote 5

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.

Modifications—Endnote 6

If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.

Misdescribed amendments—Endnote 7

An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.

Miscellaneous—Endnote 8

Endnote 8 includes any additional information that may be helpful for a reader of the compilation.

Endnote 2—Abbreviation key

ad = added or inserted	pres = present
am = amended	prev = previous
c = clause(s)	(prev) = previously
Ch = Chapter(s)	Pt = Part(s)
def = definition(s)	r = regulation(s)/rule(s)
Dict = Dictionary	Reg = Regulation/Regulations
disallowed = disallowed by Parliament	reloc = relocated
Div = Division(s)	renum = renumbered
exp = expired or ceased to have effect	rep = repealed
hdg = heading(s)	rs = repealed and substituted
LI = Legislative Instrument	s = section(s)
LIA = Legislative Instruments Act 2003	Sch = Schedule(s)
mod = modified/modification	Sdiv = Subdivision(s)
No = Number(s)	SLI = Select Legislative Instrument
o = order(s)	SR = Statutory Rules
Ord = Ordinance	Sub‑Ch = Sub‑Chapter(s)
orig = original	SubPt = Subpart(s)
par = paragraph(s)/subparagraph(s) /sub‑subparagraph(s)

Endnote 3—Legislation history

Act	Number and year	Assent	Commencement	Application, saving and transitional provisions
Banking Act 1959	6, 1959	23 Apr 1959	14 Jan 1960 (see Gazette 1960, p. 47)
Banking Act 1965	127, 1965	18 Dec 1965	14 Feb 1966	—
Statute Law Revision (Decimal Currency) Act 1966	93, 1966	29 Oct 1966	1 Dec 1966	—
Banking Act 1967	84, 1967	8 Nov 1967	8 Nov 1967	—
Banking Act 1973	116, 1973	26 Oct 1973	ss. 1–3, 5, 6 and 11: Royal Assent Remainder: 1 Nov 1973	—
Banking Act (No. 2) 1973	193, 1973	17 Dec 1973	17 Dec 1973	—
Statute Law Revision Act 1973	216, 1973	19 Dec 1973	31 Dec 1973	ss. 9(1) and 10
as amended by
Statute Law Revision Act 1974	20, 1974	25 July 1974	31 Dec 1973	—
Banking Act 1974	132, 1974	9 Dec 1974	23 Dec 1974 (see Gazette 1974, No. 103D)	ss. 4–6
Australian Rural Bank Act 1977	156, 1977	10 Nov 1977	Part III (ss. 12–19): 22 Sept 1978 (see Gazette 1978, No. S185) Remainder: Royal Assent	—
as amended by
Primary Industry Bank Amendment Act 1978	78, 1978	22 June 1978	22 June 1978	—
Jurisdiction of Courts (Miscellaneous Amendments) Act 1979	19, 1979	28 Mar 1979	Parts II–XVII (ss. 3–123): 15 May 1979 (see Gazette 1979, No. S86) Remainder: Royal Assent	s. 124
Statute Law (Miscellaneous Amendments) Act (No. 2) 1982	80, 1982	22 Sept 1982	Part XII (ss.31–33): 1 Oct 1982 (see Gazette 1982, No. S202) (a)	—
Commonwealth Banks Amendment Act 1984	76, 1984	25 June 1984	29 June 1984 (see Gazette 1984, No. S241)	—
Banking Legislation Amendment Act 1986	166, 1986	18 Dec 1986	ss. 9–11 and Part III (ss. 13–17): 30 Nov 1988 (see Gazette 1988, No. S362) Remainder: 15 Jan 1987	—
Primary Industry Bank Repeal Act 1987	105, 1987	10 Nov 1987	10 Nov 1987	—
Banking Legislation Amendment Act 1989	129, 1989	7 Nov 1989	ss. 1–3, 26, 29–33, 35, 38 and 40: Royal Assent s. 23(1): 4 May 1989 s. 39: 23 Jan 1988 Remainder: 28 Dec 1989 (see Gazette 1989, No. S383)	ss. 5(2), 20(2)–(4), 27 and 28
Commonwealth Banks Restructuring Act 1990	118, 1990	28 Dec 1990	s. 62: (b)	s. 5
Bank Integration Act 1991	210, 1991	24 Dec 1991	s. 32: 1 Jan 1993 (see Gazette 1992, No. GN36, p. 2415) (c) Remainder: Royal Assent	—
Banking Legislation Amendment Act 1992	193, 1992	21 Dec 1992	ss. 4(2), 5(1), 16, 17, 19–21 and 35: 5 Feb 1993 (see s. 2(2), (6) and Gazette 1993, No. GN4, p. 359) ss. 4(3) and 5(2): 1 July 1994 (see Gazette 1994, No. GN25) Remainder: Royal Assent	ss. 15–18
Banking (State Bank of South Australia and Other Matters) Act 1994	69, 1994	9 June 1994	ss. 3, 4, 5(1) and 6(1): 1 July 1994 (see Gazette 1994, No. GN25) ss. 5(2) and 6(2): 22 June 1995 (see Gazette 1995, No. GN24) Remainder: Royal Assent	ss. 3, 58 and 61
Banking (Queensland Industry Development Corporation) Amendment Act 1995	99, 1995	15 Sept 1995	15 Sept 1995	—
Commonwealth Bank Sale Act 1995	161, 1995	16 Dec 1995	Schedule (items 3–6): (d)	—
Statute Law Revision Act 1996	43, 1996	25 Oct 1992	Schedule 2 (items 20, 21): (e)	—
Retirement Savings Accounts (Consequential Amendments) Act 1997	62, 1997	28 May 1997	2 June 1997 (see s. 2 and Gazette 1997, No. S202)	—
Financial Laws Amendment Act 1997	107, 1997	30 June 1997	Schedule 1: Royal Assent (f)	—
Financial Sector Reform (Amendments and Transitional Provisions) Act 1998	54, 1998	29 June 1998	Schedule 2 (items 1–85, 87–159): 1 July 1998 (see Gazette 1998, No. S316) (g) Schedule 2 (item 86): 1 July 1999 (see Gazette 1999, No. S289) (g) Schedule 19 (items 1–19): Royal Assent	Sch. 19 (items 1–19)
as amended by
Statute Law Revision Act 2006	9, 2006	23 Mar 2006	Schedule 2 (item 18): (k)	—
Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999	44, 1999	17 June 1999	Schedules 2 and 8: Royal Assent (h)	Sch. 8 (items 7–9, 22, 23)
Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 2000	24, 2000	3 April 2000	Schedule 2: Royal Assent (i) Schedule 12 (items 1–3): 3 Apr 2000 (i)	Sch. 12 (items 1–3)
Financial Sector Legislation Amendment Act (No. 1) 2000	160, 2000	21 Dec 2000	Schedule 1 (item 21): Royal Assent Remainder: 18 Jan 2001	Sch. 1 (item 19)
Corporations (Repeals, Consequentials and Transitionals) Act 2001	55, 2001	28 June 2001	ss. 4–14 and Schedule 3 (items 69–78): 15 July 2001 (see Gazette 2001, No. S285) (j)	ss. 4–14
Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001	121, 2001	24 Sept 2001	ss. 1–3: Royal Assent Remainder: 1 July 2002 (see s. 2(2) and Gazette 2002, No. GN24)	Sch. 2 (item 18) and Sch. 3 (items 1–4)
Australian Prudential Regulation Authority Amendment Act 2003	42, 2003	24 June 2003	Schedules 1–3: 1 July 2003 (see Gazette 2003, No. S230) Remainder: Royal Assent	Sch. 3
Financial Sector Legislation Amendment Act (No. 1) 2003	116, 2003	27 Nov 2003	Schedule 2: 28 Nov 2003	—
Statute Law Revision Act 2006	9, 2006	23 Mar 2006	Schedule 1 (item 7): (k)	—
Financial Sector Legislation Amendment (Trans‑Tasman Banking Supervision) Act 2006	147, 2006	6 Dec 2006	6 Dec 2006	—
Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007	154, 2007	24 Sept 2007	Schedule 1 (items 10–51, 291, 296) and Schedule 4 (items 6–9): Royal Assent Schedule 1 (items 158–166): 1 Jan 2008	Sch. 1 (items 291, 296) and Sch. 4 (item 9)
Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008	25, 2008	26 May 2008	Schedule 1 (items 1–9), Schedule 2 (items 1–6) and Schedule 4 (items 1–14, 43): Royal Assent	Sch. 1 (item 9), Sch. 2 (item 6) and Sch. 4 (item 4
First Home Saver Accounts (Consequential Amendments) Act 2008	45, 2008	25 June 2008	Schedule 3 (items 10–15): 26 June 2008	—
Statute Law Revision Act 2008	73, 2008	3 July 2008	Schedule 4 (item 89): 4 July 2008	—
First Home Saver Accounts (Further Provisions) Amendment Act 2008	92, 2008	30 Sept 2008	Schedule 2 (items 2, 3): 1 Oct 2008	—
Financial System Legislation Amendment (Financial Claims Scheme and Other Measures) Act 2008	105, 2008	17 Oct 2008	Schedule 1 (items 1–17, 61, 62): (l) Schedule 2 (items 1–23): 18 Oct 2008	Sch. 1 (items 61, 62) and Sch. 2 (items 6, 10, 13, 15, 19, 21)
Tax Laws Amendment (2009 Measures No. 2) Act 2009	42, 2009	23 June 2009	Schedule 1 (items 1–3): Royal Assent	Sch. 1 (item 2)
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Act 2009	75, 2009	27 Aug 2009	Schedule 2 (items 1–6, 14): 28 Aug 2009	Sch. 2 (item 14)
Tax Laws Amendment (2009 Measures No. 4) Act 2009	88, 2009	18 Sept 2009	Schedule 5 (item 245): Royal Assent	—
Statute Law Revision Act 2010	8, 2010	1 Mar 2010	Schedule 1 (item 5): Royal Assent	—
Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Act 2010	82, 2010	29 June 2010	Schedule 1 (items 1–25, 27–46) and Schedule 6 (items 1–29): 27 July 2010 Schedule 1 (item 26): (m)	Sch. 1 (item 46)
as amended by
Statute Law Revision Act 2012	136, 2012	22 Sept 2012	Schedule 2 (item 15): (n)	—
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010	103, 2010	13 July 2010	Schedule 6 (items 1, 38, 39, 159): 1 Jan 2011	—
Statute Law Revision Act 2011	5, 2011	22 Mar 2011	Schedule 7 (item 29): 19 Apr 2011	—
Acts Interpretation Amendment Act 2011	46, 2011	27 June 2011	Schedule 2 (items 285–288) and Schedule 3 (items 10, 11): 27 Dec 2011	Sch. 3 (items 10, 11)
Banking Amendment (Covered Bonds) Act 2011	125, 2011	17 Oct 2011	17 Oct 2011	—
Tax Laws Amendment (2011 Measures No. 7) Act 2011	147, 2011	29 Nov 2011	Schedule 5 (items 21–23): Royal Assent	Sch. 5 (item 23)
Treasury Legislation Amendment (Unclaimed Money and Other Measures) Act 2012	176, 2012	4 Dec 2012	Schedule 1 (items 1–7): 1 July 2013 Schedule 1 (item 8): 5 Dec 2012	Sch. 1 (item 8)
Banking Amendment (Unclaimed Money) Act 2013	90, 2013	28 June 2013	Schedule 1: (o) Remainder: Royal Assent	Sch. 1 (items 8–10)
Statute Law Revision Act (No. 1) 2014	31, 2014	27 May 2014	Sch 8 (item 8): 24 June 2014	—
Tax Laws Amendment (2014 Measures No. 1) Act 2014	34, 2014	30 May 2014	Sch 1 (items 1, 2): 30 May 2014	—
Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014	62, 2014	30 June 2014	Sch 8 (items 1–9): 1 July 2014 (s 2(1) item 6)	—

Number and year	FRLI registration or gazettal	Commencement	Application, saving and transitional provisions
1989 No. 357	7 Dec 1989	21 Dec 1989	—

(a) The Banking Act 1959 was amended by Part XII (sections 31–33) only of the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982, subsection 2(4) of which provides as follows:

(4) Parts XII and XIX shall come into operation on such respective dates as are fixed by Proclamation.

(b) The Banking Act 1959 was amended by section 62 only of the Commonwealth Banks Restructuring Act 1990, subsection 2(3) of which provides as follows:

(3) Each of the remaining provisions of this Act commences on a day, or at a time, fixed by Proclamation in relation to the provisions concerned.

In pursuance of subsection 2(3) the date of commencement was 31 December 1990 (see Gazette 1990, No. S346 and Victorian Government Gazette, No. S73, 31.12.90).

32. On the succession day for the Commonwealth Bank and the Commonwealth Savings Bank, the Acts referred to in Schedule 3 are amended as set out in that Schedule.

The succession day was 1 January 1993 (see Gazette 1992, No. GN36, p. 2415).

(d) The Banking Act 1959 was amended by the Schedule (items 3–6) only of the Commonwealth Bank Sale Act 1995, subsection 2(2) of which provides as follows:

(2) Part 3, and all the items of the Schedule (except items 1, 12, 16, 17, 21, 22, 23, 26, 27, 31, 37 and 48), commence at the transfer time.

The transfer time occurred on 19 July 1996.

(e) The Banking Act 1959 was amended by Schedule 2 (items 20 and 21) only of the Statute Law Revision Act 1996, subsection 2(2) of which provides as follows:

(2) Each item in Schedule 2 commences or is taken to have commenced (as the case requires) at the time specified in the note at the end of the item.

Items 20 and 21 are taken to have commenced immediately after the commencement of section 26 of the Banking Legislation Amendment Act 1989.

Section 26 of the Banking Legislation Amendment Act 1989 commenced on 7 November 1989.

(f) The Banking Act 1959 was amended by Schedule 1 only of the Financial Laws Amendment Act 1997, subsection 2(1) of which provides as follows:

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(g) The Banking Act 1959 was amended by Schedule 2 (items 1–159) only of the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998, subsections 2(2)(b), (3) and (4) of which provide as follows:

(2) The following provisions of this Act commence on the commencement of the Australian Prudential Regulation Authority Act 1998:

(b) Schedule 2, other than item 86;

(3) Subject to subsection (4), item 86 of Schedule 2 commences on a day to be fixed by Proclamation.

(h) The Banking Act 1959 was amended by Schedule 2 only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, subsection 3(1) of which provides as follows:

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(i) The Banking Act 1959 was amended by Schedule 2 only of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 2000, subsections 2(1), (12) and (13) of which provide as follows:

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(12) Part 1 of Schedule 12 commences:

(a) after all of the Acts listed in subsection (13) have received the Royal Assent; and

(b) on the day that is the last day on which any of those Acts received the Royal Assent.

(13) These are the relevant Acts for the purposes of paragraph (12)(a):

(a) this Act;

(b) each of the Acts referred to in the definition of Validation Act in item 1 of Schedule 12 to this Act.

(j) The Banking Act 1959 was amended by Schedule 3 (items 69–78) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:

(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.

(k) Subsection 2(1) (items 5 and 33) of the Statute Law Revision Act 2006 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
5. Schedule 1, item 7	Immediately after the commencement of item 98 of Schedule 2 to the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998.	1 July 1998
33. Schedule 2, item 18	Immediately after the time specified in the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 for the commencement of item 99 of Schedule 2 to that Act.	1 July 1998

(l) Subsection 2(1) (items 2 and 3) of the Financial System Legislation Amendment (Financial Claims Scheme and Other Measures) Act 2008 provides as follows:

Provision(s)	Commencement	Date/Details
2. Schedule 1	Immediately after the provision(s) covered by table item 3.	18 October 2008
3. Schedules 2 to 5	The day after this Act receives the Royal Assent.	18 October 2008

(m) Subsection 2(1) (item 3) of the Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Act 2010 provides as follows:

Provision(s)	Commencement	Date/Details
3. Schedule 1, item 26	The later of: (a) the same time as the provision(s) covered by table item 2; and (b) immediately after the commencement of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	1 January 2011 (paragraph (b) applies)

Provision(s)

Commencement

Date/Details

3. Schedule 1, item 26

The later of:

(a) the same time as the provision(s) covered by table item 2; and

(b) immediately after the commencement of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

1 January 2011

(paragraph (b) applies)

(n) Subsection 2(1) (item 15) of the Statute Law Revision Act 2012 provides as follows:

Provision(s)	Commencement	Date/Details
15. Schedule 2, item 15	Immediately after the time specified in the Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Act 2010 for the commencement of item 1 of Schedule 6 to that Act.	27 July 2010

(o) Subsection 2(1) (item 2) of the Banking Amendment (Unclaimed Money) Act 2013 provides as follows:

Provision(s)	Commencement	Date/Details
2. Schedule 1	The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 1 of Schedule 1 to the Treasury Legislation Amendment (Unclaimed Money and Other Measures) Act 2012.	1 July 2013 (paragraph (b) applies)

Provision(s)

Commencement

Date/Details

2. Schedule 1

The later of:

(a) the start of the day after this Act receives the Royal Assent; and

(b) immediately after the commencement of item 1 of Schedule 1 to the Treasury Legislation Amendment (Unclaimed Money and Other Measures) Act 2012.

1 July 2013 (paragraph (b) applies)

Endnote 4—Amendment history

Provision affected	How affected
Part I
s. 3 ....................	rep. No. 116, 1973
Subhead. to s. 5(1) ..........	ad. No. 105, 2008
Subhead. to s. 5(2) ..........	ad. No. 105, 2008
Subhead. to s. 5(3) ..........	ad. No. 105, 2008
s. 5 ....................	am. No. 84, 1967; No. 116, 1973; No. 156, 1977 (as am. by No. 78, 1978); No. 76, 1984; No. 105, 1987; No. 129, 1989; No. 118, 1990; No. 210, 1991; No. 193, 1992; No. 69, 1994; Nos. 99 and 161, 1995; No. 54, 1998; No. 44, 1999; No. 24, 2000; No. 55, 2001; Nos. 42 and 116, 2003; No. 147, 2006; No. 154, 2007; No. 105, 2008; No. 82, 2010; No. 125, 2011; No 31 and 62, 2014
s. 6 ....................	am. No. 116, 1973; No. 193, 1992; No. 69, 1994; No. 99, 1995; No. 54, 1998
s. 6A ...................	ad. No. 116, 1973
	am. No. 129, 1989; No. 46, 2011
s. 6B....................	ad. No. 44, 1999
Part II
Division 1
s. 7.....................	am. No. 93, 1966; No. 129, 1989
	rs. No. 44, 1999
	am. No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 8.....................	am. No. 93, 1966; No. 129, 1989
	rs. No. 44, 1999
	am. No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Note to s. 8...............	ad. No. 54, 1998
	rs. No. 44, 1999
s. 9 ....................	am. No. 93, 1966; No. 116, 1973; No. 129, 1989; No. 193, 1992; No. 69, 1994; No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 25, 2008; No. 82, 2010 (as am. by No. 136, 2012)
Note to s. 9(2) .............	ad. No. 54, 1998
s. 9A ...................	ad. No. 84, 1967
	am. No. 116, 1973
	rep. No. 193, 1992
	ad. No. 54, 1998
	am. No. 121, 2001; No. 116, 2003; No. 147, 2006; No. 25, 2008; No. 82, 2010; No. 125, 2011
ss. 9B, 9C................	ad. No. 54, 1998
Heading to s. 10............	am. No. 54, 1998
s. 10 ...................	am. No. 93, 1966; No. 84, 1967; No. 156, 1977 (as am. by No. 78, 1978); No. 105, 1987; No. 129, 1989; No. 193, 1992; No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Heading to s. 11............	rs. No. 54, 1998
s. 11 ...................	am. No. 93, 1966; No. 129, 1989; No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 25, 2008; No. 8, 2010; No. 82, 2010 (as am. by No. 136, 2012)
Division 1AA
Div. 1AA of Part II..........	ad. No. 54, 1998
s. 11AA.................	ad. No. 54, 1998
	am. No. 44, 1999; No. 154, 2007; No. 25, 2008; No. 82, 2010 (as am. by No. 136, 2012)
s. 11AB..................	ad. No. 54, 1998
	am. No. 121, 2001; No. 116, 2003; No. 147, 2006; No. 25, 2008; No. 82, 2010
ss. 11AC, 11AD............	ad. No. 54, 1998
Division 1A
Heading to Div. 1A of Part II	rs. No. 54, 1998
Div. 1A of Part II ...........	ad. No. 129, 1989
s. 11AF..................	ad. No. 54, 1998
	am. No. 44, 1999; No. 116, 2003; No. 154, 2007; No. 25, 2008; No. 82, 2010
Heading to s. 11A...........	am. No. 54, 1998
s. 11A...................	ad. No. 129, 1989
	am. No. 54, 1998
Heading to s. 11B...........	am. No. 54, 1998
s. 11B...................	ad. No. 129, 1989
	am. No. 54, 1998
s. 11C...................	ad. No. 129, 1989
Division 1BA
Div. 1BA of Part II..........	ad. No. 54, 1998
Subdivision A
Heading to Subdiv. A of Div. 1BA of Part II	rs. No. 44, 1999
s. 11CA..................	ad. No. 54, 1998
	am. No. 44, 1999; No. 160, 2000; Nos. 55 and 121, 2001; No. 116, 2003; No. 147, 2006; Nos. 25 and 45, 2008; No. 82, 2010; No. 125, 2011
Subdivision B
Heading to Subdiv. B of Div. 1BA of Part II	rs. No. 44, 1999
Heading to s. 11CB..........	am. No. 44, 1999
s. 11CB..................	ad. No. 54, 1998
	am. No. 44, 1999; No. 25, 2008
Heading to s. 11CC..........	am. No. 44, 1999
s. 11CC..................	ad. No. 54, 1998
	am. No. 44, 1999; No. 25, 2008
Subdivision C
s. 11CD..................	ad. No. 54, 1998
	am. No. 116, 2003; No. 105, 2008; No. 125, 2011
s. 11CE..................	ad. No. 54, 1998
	am. No. 125, 2011
s. 11CF..................	ad. No. 54, 1998
s. 11CG..................	ad. No. 54, 1998
	am. No. 44, 1999; No. 55, 2001; No. 116, 2003; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012); No. 125, 2011
Division 1B
Heading to Div. 1B of Part II	rs. No. 54, 1998
Div. 1B of Part II ...........	ad. No. 193, 1992
s. 11D...................	ad. No. 193, 1992
	am. No. 54, 1998
	rep. No. 82, 2010
Heading to s. 11E...........	am. No. 54, 1998
s. 11E...................	ad. No. 193, 1992
	am. No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Heading to s. 11F...........	am. No. 54, 1998
s. 11F...................	ad. No. 193, 1992
	am. No. 54, 1998
Division 2
Subdivision A
Heading to Subdiv. A of Div. 2 of Part II	ad. No. 54, 1998
Heading to s. 12............	am. No. 54, 1998
s. 12....................	am. No. 54, 1998; No. 147, 2006
s. 13 ...................	am. No. 116, 1973; No. 129, 1989
	rs. No. 54, 1998
	am. No. 44, 1999; No. 160, 2000; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Subhead. to s. 13A(1) ........	am. No. 160, 2000
Subhead. to s. 13A(4) ........	ad. No. 105, 2008
s. 13A...................	ad. No. 54, 1998
	am. No. 44, 1999; No. 160, 2000; No. 154, 2007; No. 105, 2008; No. 82, 2010 (as am. by No. 136, 2012); No. 125, 2011
s. 13B...................	ad. No. 54, 1998
	am. No. 44, 1999; No. 160, 2000; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 13BA..................	ad. No. 105, 2008
s. 13C...................	ad. No. 54, 1998
	am. No. 55, 2001
Subdivision AA
Subdiv. AA of Div. 2 of Part II	ad. No. 82, 2010
ss. 13D–13H..............	ad. No. 82, 2010
ss. 13J–13N...............	ad. No. 82, 2010
ss. 13P, 13Q...............	ad. No. 82, 2010
Heading to s. 13R...........	am. No. 82, 2010
s. 13R...................	ad. No. 82, 2010
	am. No. 82, 2010
s. 14 ...................	am. No. 93, 1966; No. 116, 1973; No. 19, 1979; No. 129, 1989
	rep. No. 54, 1998
Subdivision B
Subdiv. B of Div. 2 of........ Part II	ad. No. 54, 1998
s. 14A...................	ad. No. 54, 1998
	am. No. 44, 1999; No. 116, 2003; No. 154, 2007; No. 105, 2008; No. 82, 2010 (as am. by No. 136, 2012)
ss. 14AA–14AC............	ad. No. 105, 2008
s. 14AD.................	ad. No. 82, 2010
s. 14B...................	ad. No. 54, 1998
	am. No. 125, 2011
Subhead. to s. 14C(4) ........	am. No. 55, 2001
s. 14C...................	ad. No. 54, 1998
	am. No. 55, 2001
s. 14D...................	ad. No. 54, 1998
s. 14DAA................	ad. No. 105, 2008
s. 14DA.................	ad. No. 147, 2006
s. 14E...................	ad. No. 54, 1998
s. 14F...................	ad. No. 54, 1998
	am. No. 55, 2001; No. 105, 2008; No. 82, 2010
s. 15....................	am. No. 129, 1989
	rs. No. 54, 1998
	am. No. 55, 2001
s. 15A...................	ad. No. 54, 1998
	am. No. 55, 2001; No. 105, 2008
s. 15B...................	ad. No. 54, 1998
	am. No. 105, 2008
s. 15C...................	ad. No. 54, 1998
	rs. No. 105, 2008
s. 15D...................	ad. No. 105, 2008
s. 16....................	am. No. 93, 1966; No. 129, 1989
	rs. No. 54, 1998
s. 16A...................	ad. No. 54, 1998
Heading to s. 16AA..........	am. No. 103, 2010
s. 16AA.................	ad. No. 105, 2008
	am. No. 103, 2010
Division 2AA
Div. 2AA of Part II..........	ad. No. 105, 2008
Subdivision A
ss. 16AB, 16AC............	ad. No. 105, 2008
Subdivision B
ss. 16AD, 16AE............	ad. No. 105, 2008
Subdivision C
s. 16AF..................	ad. No. 105, 2008
	am. No. 82, 2010
s. 16AG.................	ad. No. 105, 2008
Note to s. 16AG(3) ..........	am. No. 46, 2011
s. 16AH.................	ad. No. 105, 2008
s. 16AHA................	ad. No. 42, 2009
s. 16AI..................	ad. No. 105, 2008
Subdivision D
s. 16AJ..................	ad. No. 105, 2008
	am. No. 82, 2010
s. 16AK.................	ad. No. 105, 2008
	am. No. 42, 2009; No. 82, 2010
ss. 16AL–16AN............	ad. No. 105, 2008
s. 16AO.................	ad. No. 105, 2008
	am. No. 82, 2010
Subdivision E
ss. 16AP–16AS.............	ad. No. 105, 2008
Subdivision F
s. 16AT..................	ad. No. 105, 2008
Subdivision G
Heading to Subdiv. G of Div. 2AA of Part II	rs. No. 103, 2010
Heading to s. 16AU..........	am. No. 103, 2010
s. 16AU.................	ad. No. 105, 2008
	am. No. 103, 2010
Division 2A
Div. 2A of Part II...........	ad. No. 54, 1998
s. 16AV.................	ad. No. 82, 2010
Heading to s. 16B...........	rs. No. 154, 2007
s. 16B...................	ad. No. 54, 1998
	am. No. 44, 1999; No. 121, 2001; No. 116, 2003; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 16BA..................	ad. No. 154, 2007
	am. No. 82, 2010; No. 125, 2011
s. 16C...................	ad. No. 54, 1998
	am. No. 121, 2001
	rs. No. 116, 2003
ss. 16D, 16E...............	ad. No. 82, 2010
Division 2B
Div. 2B of Part II...........	ad. No. 116, 2003
s. 17 ...................	am. No. 84, 1967; No. 116, 1973; No. 156, 1977 (as am. by No. 78, 1978); No. 105, 1987
	rs. No. 129, 1989
	rep. No. 54, 1998
	ad. No. 116, 2003
	am. No. 25, 2008; No. 82, 2010
s. 18....................	rs. No. 129, 1989
	rep. No. 54, 1998
	ad. No. 116, 2003
	rs. No. 154, 2007
Division 2C
Div. 2C of Part II...........	ad. No. 154, 2007
s. 18A...................	ad. No. 154, 2007
	am. No. 45, 2008
Division 3
Div. 3 of Part II ............	rs. No. 129, 1989
	rep. No. 54, 1998
	ad. No. 116, 2003
Heading to s. 19............	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
s. 19....................	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
	am. No. 25, 2008
s. 20....................	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
	am. No. 25, 2008
Note to s. 20(1) ............	am. No. 25, 2008
s. 21....................	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
	rs. No. 25, 2008
Heading to s. 22............	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
	rs. No. 25, 2008
s. 22 ...................	am. No. 116, 1973
	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 116, 2003
	rs. No. 25, 2008
s. 22A...................	ad. No. 82, 2010
s. 23....................	rs. No. 129, 1989
	am. No. 54, 1998; No. 44, 1999
	rep. No. 54, 1998
	ad. No. 116, 2003
	am. No. 25, 2008
Division 3A
Div. 3A of Part II ...........	ad. No. 125, 2011
s. 24....................	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 125, 2011
s. 25 ...................	am. No. 116, 1973; No. 216, 1973 (as am. by No. 20, 1974)
	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 54, 1998
	ad. No. 125, 2011
s. 26 ...................	am. No. 93, 1966; No. 116, 1973
	rep. No. 129, 1989
	ad. No. 125, 2011
s. 27 ...................	am. No. 127, 1965
	rep. No. 129, 1989
	ad. No. 125, 2011
ss. 28, 29 ................	rep. No. 129, 1989
	ad. No. 125, 2011
ss. 30, 31 ................	am. No. 116, 1973
	rep. No. 129, 1989
	ad. No. 125, 2011
ss. 31A–31F...............	ad. No. 125, 2011
Division 4
s. 32....................	am. No. 54, 1998
s. 33 ...................	am. No. 93, 1966; No. 116, 1973; No. 129, 1989; No. 54, 1998 (as am. by No. 9, 2006); No. 44, 1999; No. 9, 2006; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 34 ...................	am. No. 129, 1989; No. 54, 1998
s. 35....................	am. No. 54, 1998
Division 5
s. 36 ...................	am. No. 93, 1966; No. 84, 1967; No. 116, 1973; No. 156, 1977 (as am. by No. 78, 1978); No. 105, 1987; No. 129, 1989; No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Div. 6 of Part II ............	rep. No. 129, 1989
s. 37 ...................	am. No. 93, 1966; No. 116, 1973
	rep. No. 129, 1989
s. 38 ...................	rep. No. 129, 1989
Part IIA
Heading to Part IIA..........	rs. No. 54, 1998
Part IIA..................	ad. No. 80, 1982
Heading to s. 38A...........	am. No. 44, 1999
s. 38A ..................	ad. No. 80, 1982
	am. No. 107, 1997; No. 54, 1998
Part III
Part III..................	rs. No. 132, 1974
s. 39 ...................	am. No. 93, 1966; No. 193, 1973
	rs. No. 132, 1974
	am. No. 129, 1989; No. 107, 1997
s. 39A...................	ad. No. 132, 1974
	am. No. 129, 1989
s. 39B ..................	ad. No. 132, 1974
	am. No. 129, 1989
	rep. No. 88, 2009
Part IV
s. 40 ...................	(3) exp. 30 January 1976 (see s. 40(3) and Gazette 1976, No. S17)
	am. No. 129, 1989
s. 41....................	am. No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 42 ...................	am. No. 129, 1989; No. 43, 1996; No. 107, 1997; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 43 ...................	am. No. 129, 1989
s. 44 ...................	am. No. 116, 1973
s. 45....................	am. No. 129, 1989; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 46....................	am. No. 129, 1989; No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 49 ...................	am. No. 93, 1966; No. 116, 1973
	rep. No. 129, 1989
Part V
s. 50 ...................	am. No. 93, 1966; No. 129, 1989; No. 54, 1998
Part VI
Heading to Part VI..........	rs. No. 44, 1999
	rep. No. 121, 2001
	ad. No. 116, 2003
Part VI ..................	rs. No. 129, 1989
	rep. No. 121, 2001
	ad. No. 116, 2003
s. 51A...................	ad. No. 116, 2003
	am. No. 45, 2008
s. 51B...................	ad. No. 116, 2003
	am. No. 82, 2010 (as am. by No. 136, 2012)
s. 51C...................	ad. No. 116, 2003
	am. No. 25, 2008
s. 51D...................	ad. No. 116, 2003
	am. No. 82, 2010 (as am. by No. 136, 2012)
Heading to s. 51............	am. No. 54, 1998
	rep. No. 121, 2001
s. 51 ...................	am. No. 84, 1967; No. 116, 1973; No. 156, 1977 (as am. by No. 78, 1978); No. 105, 1987
	rs. No. 129, 1989
	am. No. 54, 1998
	rep. No. 121, 2001
s. 52 ...................	am. Statutory Rules 1962 No. 92; No. 93, 1966; No. 166, 1986
	rs. No. 129, 1989
	rep. No. 54, 1998
Part VIA
Part VIA.................	ad. No. 154, 2007
Division 1
s. 52A...................	ad. No. 154, 2007
	am. No. 82, 2010
ss. 52B–52D..............	ad. No. 154, 2007
s. 52E...................	ad. No. 154, 2007
	am. No. 82, 2010
Division 2
s. 52F...................	ad. No. 154, 2007
s. 53 ...................	am. Statutory Rules 1962 No. 92; No. 93, 1966; No. 116, 1973
	rep. No. 129, 1989
s. 54 ...................	am. No. 93, 1966; No. 166, 1986
	rep. No. 129, 1989
s. 55 ...................	am. No. 166, 1986
	rep. No. 129, 1989
ss. 56, 57 ................	rep. No. 129, 1989
s. 58 ...................	am. No. 166, 1986
	rep. No. 129, 1989
s. 59....................	rep. No. 129, 1989
Part VII
s. 60....................	rep. No. 129, 1989
	ad. No. 82, 2010
s. 61 ...................	am. No. 93, 1966
	rs. No. 129, 1989; No. 54, 1998
	am. No. 44, 1999
	rs. No. 116, 2003
	am. No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 62 ...................	am. No. 93, 1966; No. 129, 1989
	rs. No. 54, 1998
	am. No. 44, 1999; No. 160, 2000; No. 121, 2001; No. 116, 2003; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
Subhead. to s. 62A(1) ........	ad. No. 154, 2007
s. 62A...................	ad. No. 116, 2003
	am. No. 154, 2007; No. 45, 2008; No. 82, 2010; No. 125, 2011
ss. 62B, 62C...............	ad. No. 105, 2008
Heading to s. 63............	am. No. 54, 1998
s. 63 ...................	am. No. 93, 1966; No. 116, 1973; No. 129, 1989; No. 69, 1994; No. 54, 1998; No. 44, 1999; Nos. 24 and 160, 2000; No. 55, 2001; No. 42, 2003; No. 154, 2007; No. 73, 2008; No. 82, 2010 (as am. by No. 136, 2012)
s. 63A ..................	ad. No. 84, 1967
	am. No. 129, 1989
	rep. No. 193, 1992
s. 63B ..................	ad. No. 156, 1977 (as am. by No. 78, 1978)
	rep. No. 105, 1987
s. 64 ...................	am. No. 93, 1966; No. 129, 1989
	rep. No. 54, 1998
	ad. No. 160, 2000
Heading to s. 65............	am. No. 54, 1998
s. 65 ...................	am. No. 116, 1973; No. 19, 1979; No. 129, 1989; No. 54, 1998
s. 65A ..................	ad. No. 160, 2000
	am. No. 75, 2009
s. 65B...................	ad. No. 105, 2008
Heading to s. 66............	rs. No. 54, 1998
s. 66....................	am. No. 93, 1966
	rs. No. 129, 1989
	am. No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 25, 2008; No. 82, 2010 (as am. by No. 136, 2012)
s. 66A...................	ad. No. 54, 1998
	am. No. 44, 1999; No. 154, 2007; No. 82, 2010 (as am. by No. 136, 2012)
s. 67....................	am. No. 93, 1966
	rs. No. 129, 1989
	am. No. 54, 1998; No. 44, 1999; No. 154, 2007; No. 25, 2008; No. 82, 2010 (as am. by No. 136, 2012)
s. 68 ...................	am. No. 116, 1973; No. 44, 1999
s. 69 ...................	am. No. 93, 1966; No. 84, 1967; No. 116, 1973; No. 156, 1977 (as am. by No. 78, 1978); No. 19, 1979; No. 105, 1987; No. 129, 1989; No. 193, 1992; No. 62, 1997; No. 44, 1999; No. 160, 2000; No. 154, 2007; No. 92, 2008; No. 82, 2010 (as am. by No. 136, 2012); Nos. 5 and 147, 2011; No. 176, 2012; No. 90, 2013; No 34 and 62, 2014
Note to s. 69(3) ............	ad. No. 92, 2008
s. 69AA.................	ad. No. 54, 1998
s. 69A ..................	ad. No. 129, 1989
	am. No. 193, 1992; No. 107, 1997; No. 54, 1998
	rep. No. 44, 1999
s. 69B ..................	ad. No. 129, 1989
	rep. No. 107, 1997
s. 69C ..................	ad. No. 129, 1989
	am. No. 44, 1999
Note to s. 69C .............	ad. No. 44, 1999
s. 69D ..................	ad. No. 193, 1992
	rs. No. 107, 1997
	am. No. 54, 1998
s. 69E...................	ad. No. 54, 1998
s. 69F...................	ad. No. 54, 1998
	am. No. 116, 2003
s. 70 ...................	am. No. 116, 1973; No. 129, 1989
	rep. No. 69, 1994
s. 70A ..................	ad. No. 129, 1989
	rs. No. 54, 1998; No. 116, 2003
Heading to s. 70B ...........	am. No. 55, 2001
s. 70B...................	ad. No. 54, 1998
	am. No. 55, 2001
Subhead to s 70C(2).........	rs No 62, 2014
s 70C...................	ad. No. 105, 2008
	am No 62, 2014
Note to s 70C(2)............	am No 62, 2014
s 70D...................	ad. No. 105, 2008
s 70E...................	ad. No. 105, 2008
	am No 62, 2014
s 70F...................	ad. No. 105, 2008
Note to s 70F(1)............	am No 62, 2014
s 70G...................	ad. No. 105, 2008
Note to s 70G..............	rs No 62, 2014
s 70H...................	ad. No. 105, 2008
s. 71 ...................	am. No. 93, 1966; No. 129, 1989; No. 107, 1997; No. 54, 1998; No. 44, 1999
The Schedules
First Schedule .............	am. No. 216, 1973 (as am. by No. 20, 1974)
	rs. No. 129, 1989; No. 193, 1992
	rep. No. 54, 1998
Second Schedule ...........	am. Statutory Rules 1962 No. 92; No. 127, 1965; No. 93, 1966; No. 84, 1967; No. 116, 1973; No. 76, 1984
	rep. No. 129, 1989
Schedule 1
Heading to Third Schedule	rep. No. 54, 1998
Heading to Schedule 1........	ad. No. 54, 1998
	rs. No. 44, 1999
Third Schedule ............	ad. No. 80, 1982
Schedule 2
Schedule 2................	ad. No. 105, 2008
Part 1
cc. 1–5..................	ad. No. 105, 2008
Part 2
cc. 6–9..................	ad. No. 105, 2008

Endnote 5—Uncommenced amendments [none]

Endnote 6—Modifications [none]

Endnote 7—Misdescribed amendments [none]

Endnote 8—Miscellaneous [none]