Australian Prudential Regulation Authority Act 1998

Part 3 substituted by No 42 of 2003, s 3 and Sch 1 item 20, effective 1 July 2003. Act No 42 of 2003 contained the following transitional proviions:

Schedule 3 - Transitional provisions

Definitions  
1
In this Schedule:

amended Act
means the Australian Prudential Regulation Authority Act 1998 as in force after the commencement of the amendments.

commencement of the amendments
means the commencement of the amendments made by Schedule 1.

old Act
means the Australian Prudential Regulation Authority Act 1998 as in force immediately before the commencement of the amendments.

APRA's corporate existence is continued  
2(1)
The body corporate that was, immediately before the commencement of the amendments, the Australian Prudential Regulation Authority ( APRA ) continues in existence after that commencement by force of this item under the corporate structure provided for by the amended Act.

Note: Rights, liabilities and obligations as between APRA and other people, and things done by or on behalf of APRA, or in relation to APRA, are therefore not affected by the restructure of APRA.

2(2)
However, this does not imply that any person who, immediately before the commencement of the amendments, was a member of APRA's Board, or was APRA's Chief Executive Officer, continues to hold office after that commencement.

Note: These people cease to hold office on the commencement of the amendments because of the repeal of the provisions under which they were appointed.

Continued protection from liability  
3
Section 58 of the old Act continues to apply in relation to conduct, before the commencement of the amendments, of APRA's Board, a member of APRA's Board or an agent of a member of APRA's Board.

Note: The reference to a member of APRA's Board covers APRA's Chief Executive Officer.

Continued effect of certain delegations  
4(1)
A delegation in force, immediately before the commencement of the amendments, under subsection 15(1) or (2) of the old Act continues to have effect after that commencement as if it were a delegation under APRA's seal under that subsection of the amended Act. If the delegation was to one or more members of APRA's Board, it continues to have effect as if it were a delegation to any APRA member.

4(2)
A direction in force, immediately before the commencement of the amendments, under subsection 15(3) of the old Act continues to have effect after that commencement, in relation to a delegation to which subitem (1) applies, as if it were a direction given by APRA under that subsection of the amended Act.

4(3)
A delegation to one or more members of APRA's Board in force, immediately before the commencement of the amendments, under a provision amended by Schedule 2 continues to have effect after that commencement as if it were a delegation under the amended provision to any APRA member.

Note: Delegations in favour of APRA, or APRA staff members, are not affected by the Schedule 2 amendments.

Continued effect of determinations of terms and conditions for staff and consultants  
5
A determination of terms and conditions in force, immediately before the commencement of the amendments, under subsection 45(2) or 47(2) of the old Act continues to have effect after that commencement as if it were a determination by APRA under that subsection of the amended Act. Continued effect of approvals under paragraph 56(5)(b)  
6
An approval in force, immediately before the commencement of the amendments, under paragraph 56(5)(b) of the old Act continues to have effect after that commencement as if it were an approval by APRA under that paragraph of the amended Act. Continued or extended effect of certain regulations  
7(1)
Regulations in force, immediately before the commencement of the amendments, under paragraph (k) of the definition of Act covered by this section in subsection 56(1) of the old Act continue to have effect after that commencement as if they were made under paragraph (o) of the definition of prudential regulation framework law in subsection 3(1) of the amended Act, but only as that paragraph applies for the purposes of section 56 of the amended Act.

7(2)
Regulations in force, immediately before the commencement of the amendments, under paragraph 56(5)(a) of the old Act have effect after that commencement (in addition to the effect they continue to have for that paragraph of the amended Act) as if they were also made under subsection 10A(1) of the amended Act.
Delegations by ASIC to APRA staff members  
8(1)
Subsection 102(2A) of the Australian Securities and Investments Commission Act 2001 has effect after the commencement of the amendments as if the reference in that subsection to the Chief Executive Officer of APRA were instead a reference to APRA.

8(2)
For the purposes of that subsection as it continues to have effect, an agreement to a delegation, in force under that subsection immediately before the commencement of the amendments, continues to have effect after that commencement as if it were given by APRA.

Part 3 formerly read:

PART 3 - APRA'S BOARD

Division 1 - Establishment, functions, powers and membership

ESTABLISHMENT OF BOARD  
16
There is to be a Board of management of APRA. BOARD'S FUNCTIONS  
17
The Board has the following functions:

(a) to determine APRA's policies (including goals, priorities, strategies and administrative policies); and

(b) to ensure that APRA performs its functions properly, efficiently and effectively; and

(c) to ensure that APRA's operations are conducted having regard to its purpose as stated in section 8. THE BOARD'S POWERS  
18
The Board has power to do anything that is necessary or convenient to be done for or in connection with the performance of its functions. MEMBERSHIP  
19(1)
The Board consists of the following members:

(a) a Chair;

(b) the CEO;

(c) 2 members, each of whom is either the Governor or the Deputy Governor of the Reserve Bank or an officer of the Reserve Bank Service; and

(d) 1 member who is also an ASIC member or an ASIC staff member; and

(e) 4 other members.

Note 1: Section 18B of the Acts Interpretation Act 1901 deals with the title of the Chair.

Note 2: The exercise of the Board's powers and performance of its functions is not affected merely because of a vacancy or vacancies in the membership of the body (see subsection 33(2B) of the Acts Interpretation Act 1901 ).

19(2)
A person cannot be appointed as a Board member if that person is a director, officer or employee of a body regulated by APRA.
DELEGATION BY THE BOARD  
20(1)
The Board may, by resolution, delegate any of its functions or powers to a Board member or an APRA staff member.

20(2)
The delegate must comply with any directions of the Board when exercising powers under the delegation.

20(3)
A delegation under this section:

(a) may be revoked by resolution of the Board (whether or not constituted by the people who constituted the Board when the power was delegated); and

(b) continues in force despite any change in the Board's membership.

20(4)
A certificate signed by the Chair stating any matter in relation to a delegation under this section is prima facie evidence of the matter.

20(5)
A document that appears to be a certificate under subsection (4) is taken to be such a certificate and to have been properly given, unless the contrary is established.

Note: For further information about delegations, see sections 34AA to 34A of the Acts Interpretation Act 1901 .

Division 2 - Meetings and resolutions without meetings

TIMES AND PLACES OF MEETINGS  
21(1)
The Board must hold such meetings as are necessary for the efficient performance of its functions.

21(2)
Meetings are to be held at such times and places as the Board or the Chair determines.
PRESIDING AT MEETINGS  
22(1)
The Chair must preside at all meetings of the Board at which he or she is present.

22(2)
If the Chair is not present at a meeting, the Board members present must appoint one of their number to preside.
QUORUM  
23
Five Board members constitute a quorum at a meeting of the Board. VOTING AT MEETINGS  
24(1)
A question arising at a meeting of the Board is to be determined by a majority of the votes of the Board members present and voting.

24(2)
The person presiding at a meeting has:

(a) a deliberative vote; and

(b) if necessary, also a casting vote.
CONDUCT OF MEETINGS  
25
The Board may regulate proceedings at its meetings as it considers appropriate. However, proceedings at a meeting must not be inconsistent with this Division.

Note 1: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings.

Note 2: Requirements relating to disclosure of interests are contained in section 21 of the Commonwealth Authorities and Companies Act 1997 .

BOARD RESOLUTIONS WITHOUT MEETINGS  
26
A resolution is taken to have been passed at a meeting of the Board if:

(a) the Board has determined:

(i) that resolutions may be passed in accordance with this section; and

(ii) the method of indicating agreement with a resolution passed in accordance with this section; and

(b) without meeting, a majority of the Board members indicate agreement with the resolution in accordance with the method determined by the Board; and

(c) that majority would have constituted a quorum at a meeting of the Board; and

(d) all Board members were informed of the proposed resolution, or reasonable efforts were made to inform all Board members of the proposed resolution.

Division 3 - Terms and conditions of Board members (other than the CEO)

APPOINTMENT AND PERIOD OF APPOINTMENT  
27(1) Ordinary members.  

The ordinary members are to be appointed by the Treasurer by written instrument.

Note: The Chair is one of the ordinary members and is appointed by the Treasurer as the Chair.

27(2)
The ordinary members hold office on a part-time basis, for the period specified in the instrument of appointment. The period must not exceed 5 years.

27(3) Representative members.  

The Reserve Bank representative members are to be appointed by the Governor of the Reserve Bank by instrument in writing.

Note: The Governor of the Reserve Bank may appoint himself or herself.

27(4)
The ASIC representative member is to be appointed by the Chairperson of ASIC by instrument in writing.

Note: The Chairperson of ASIC may appoint himself or herself.

27(5)
The representative members hold office on a part-time basis.
REMUNERATION AND ALLOWANCES  
28(1)
A Board member (other than the CEO) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Board member is to be paid the remuneration that is determined by the Treasurer.

28(2)
A Board member (other than the CEO) is to be paid the allowances that are prescribed.

28(3)
This section has effect subject to the Remuneration Tribunal Act 1973 .
LEAVE OF ABSENCE  
29
The Board may grant leave of absence to each of the Board members (other than the CEO) on the terms and conditions that the Board determines. RESIGNATION  
30(1) Ordinary members.  

An ordinary member may resign his or her appointment by giving the Treasurer a written resignation.

30(2) Reserve Bank representative members.  

A Reserve Bank representative member may resign his or her appointment by giving the Governor of the Reserve Bank a written resignation.

30(3) ASIC representative members.  

An ASIC representative member may resign his or her appointment by giving the Chairperson of ASIC a written resignation.

TERMINATION OF APPOINTMENT  
31(1) All members other than the CEO.  

The appointment of a Board member (other than the CEO) is immediately terminated if the member becomes a director, officer or employee of a body regulated by APRA.

31(2) Ordinary members.  

The Treasurer may terminate the appointment of an ordinary member:

(a) for misbehaviour or physical or mental incapacity; or

(b) if the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(c) if the member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or

(d) if the member engages in paid employment that, in the Treasurer's opinion, conflicts with the proper performance of the duties of his or her office; or

(e) if the member fails, without reasonable excuse, to comply with section 27F or 27J of the Commonwealth Authorities and Companies Act 1997 .

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History

S 31(2)(e) amended by No 156 of 1999, s 2 Sch 10 item 53, by substituting ``27F or 27J'' for ``21'', effective 13 March 2000.

31(3) Reserve Bank representative members.  

The Governor of the Reserve Bank may at any time terminate the appointment of a Reserve Bank representative member.

31(4)
The appointment of a Reserve Bank representative member is immediately terminated if the member ceases to be any of the following:

(a) the Governor of the Reserve Bank;

(b) the Deputy Governor of the Reserve Bank;

(c) an officer of the Reserve Bank Service.

31(5) ASIC representative member.  

The Chairperson of ASIC may at any time terminate the appointment of an ASIC representative member.

31(6)
The appointment of an ASIC representative member is immediately terminated if the member ceases to be an ASIC member or a member of the staff of ASIC.
OTHER TERMS AND CONDITIONS  
32
The ordinary members hold office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Treasurer. ACTING BOARD MEMBERS  
33(1) Ordinary members.  

The Treasurer may appoint a person to act as an ordinary member:

(a) during a vacancy in the office of an ordinary member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when an ordinary member is absent from duty or from Australia, or is for any reason unable to perform the duties of the office.

33(2) Reserve Bank representative members.  

The Governor of the Reserve Bank may appoint a person to act as a Reserve Bank representative member:

(a) during a vacancy in the office of a Reserve Bank representative member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when a Reserve Bank representative member is absent from duty or from Australia, or is for any reason unable to perform the duties of the office.

33(3) ASIC representative members.  

The Chairperson of ASIC may appoint a person to act as an ASIC representative member:

(a) during a vacancy in the office of an ASIC representative member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when an ASIC representative member is absent from duty or from Australia, or is for any reason unable to perform the duties of the office.

33(4) Validity of acts - ordinary and representative members.  

Anything done by or in relation to a person purporting to act under an appointment under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

Note: For further information about acting appointments, see section 33A of the Acts Interpretation Act 1901 .

33(5) Qualifications of acting members.  

A person is not eligible to be appointed to act in an office under this section unless the person would be eligible to be appointed to that office under section 19.

SIGNPOST TO OTHER PROVISIONS APPLYING TO BOARD MEMBERS  
34
For further provisions applying to Board members, see sections 21 to 27 of the Commonwealth Authorities and Companies Act 1997 .

S 19(1) amended by No 81 of 2018, s 3 and Sch 1 item 4, by substituting " as Deputy Chair " with " as a Deputy Chair " in para (c)(i), effective 7 September 2018. . No 81 of 2018, s 3 and Sch 1 item 9 provides:

9 Saving of appointments  
(1)
This Act does not affect an appointment of the Chair, a Deputy Chair or an APRA member under the Australian Prudential Regulation Authority Act 1998 .

(2)
Subitem (1) does not prevent the termination of an appointment.

S 19(1) amended by No 46 of 2011, s 3 and Sch 2 item 234, by inserting a note at the end, effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:

10 Saving - appointments  
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement. 11 Transitional regulations  
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.

S 19(2) amended by No 46 of 2011, s 3 and Sch 2 item 234, by inserting a note at the end, effective 27 December 2011. For saving and transitional provisions see note under s 19(1).

S 19(3) substituted by No 81 of 2018, s 3 and Sch 1 item 5, effective 7 September 2018. S 19(3) formerly read:

19(3)
The Minister may appoint an APRA member to act as Deputy Chair:

(a) during a vacancy in the office of Deputy Chair, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Deputy Chair is absent from duty or from Australia, or is, for any reason, unable to perform the functions of his or her office; or

(c) during any period, or during all periods, when the Deputy Chair is acting as Chair.

Note:

For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901 .

S 19(3) amended by No 46 of 2011, s 3 and Sch 2 item 234, by inserting a note at the end, effective 27 December 2011. For saving and transitional provisions see note under s 19(1).

S 19(5) repealed by No 46 of 2011, s 3 and Sch 2 item 235, effective 27 December 2011. For saving and transitional provisions see note under s 19(1). S 19(5) formerly read:

19(5)
Anything done by or in relation to a person purporting to act under an appointment under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

Note:

For further information about acting appointments, see section 33A of the Acts Interpretation Act 1901 .

S 19 substituted by No 42 of 2003, s 3 and Sch 1 item 20, effective 1 July 2003. For transitional provisions and former wording, see the history note under the heading to Part 3.