Australian Prudential Regulation Authority Amendment Act 2003 (42 of 2003)

Schedule 1   Amendment of the Australian Prudential Regulation Authority Act 1998

20   Part 3

Repeal the Part, substitute:

Part 3 APRA membership and other corporate matters

Division 1 Membership

16 Appointment of APRA members

(1) APRA is to consist of not fewer than 3 members nor more than 5 members.

(2) The APRA members are to be appointed by the Governor-General by written instrument.

(3) At least 3 of the APRA members must be appointed as full-time members, and each of the other APRA members (if any) may be appointed as a full-time or part-time member.

(4) The performance of APRA's functions or the exercise of APRA's powers is not affected by reason only that:

(a) there are fewer than 3 APRA members; or

(b) there are fewer than 3 full-time APRA members.

17 Restrictions on appointment

(1) A person may only be appointed as an APRA member if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge or experience relevant to APRA's functions and powers.

(2) A person may not be appointed as an APRA member if the person is a director, officer or employee of a body regulated by APRA.

(3) A person who is a director, officer or employee of a body operating in the financial sector, other than a body regulated by APRA, may be appointed as an APRA member, but only if the Minister considers that the person will not be prevented from the proper performance of the functions of the office because of resulting conflicts of interest.

18 Appointment of Chair and Deputy Chair

(1) The Governor-General is to appoint a full-time APRA member as Chair of APRA.

(2) The Governor-General may appoint another full-time APRA member as Deputy Chair of APRA.

(3) The Deputy Chair is to act as Chair during any period when:

(a) the office of Chair is vacant; or

(b) the Chair is absent from duty or from Australia, or is, for any reason, unable to perform the functions of his or her office.

(4) When acting as Chair, the Deputy Chair has all the functions and powers of the Chair.

(5) Anything done by or in relation to a person purporting to act under subsection (3) is not invalid on the ground that the occasion for the person to act had not arisen or had ceased.

19 Acting appointments

(1) The Minister may:

(a) appoint a person to act as a full-time APRA member during any period when there are fewer than 5 persons who are APRA members; or

(b) appoint a person to act as a part-time APRA member during any period when:

(i) there are fewer than 5 persons who are APRA members; and

(ii) there are at least 3 persons who are full-time APRA members; or

(c) appoint a person to act in the place of a full-time APRA member or part-time APRA member during any period when the APRA member:

(i) is acting as Deputy Chair in accordance with subsection (3); or

(ii) is absent from duty or from Australia or is, for any reason, unable to perform the functions of his or her office.

(2) The Minister may appoint an APRA member to act as Chair:

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

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

(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.

(4) A person appointed under paragraph (1)(a), (1)(b), (2)(a) or (3)(a) must not continue to act under the appointment for more than 12 months.

(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.

(6) A person is not eligible to be appointed to act in an office under this section if section 17 would prevent the person from being appointed as an APRA member.

Division 2 Terms and conditions for APRA members

20 Term of office as an APRA member

An APRA member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: This section has effect subject to section 24 (under which a person may resign his or her appointment as an APRA member) and section 25 (under which a person's appointment as an APRA member may be terminated).

21 Term of office as Chair or Deputy Chair

A person appointed as Chair or Deputy Chair holds that office until:

(a) in any case - the end of his or her current term as an APRA member; or

(b) in any case - he or she otherwise stops being an APRA member; or

(c) in the case of a person appointed as Deputy Chair - he or she is appointed as Chair;

whichever happens first.

Note: This section has effect subject to section 24 (under which a person may resign his or her appointment as Chair or Deputy Chair).

22 Remuneration and allowances

(1) An APRA member 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 member is to be paid the remuneration that the Minister determines.

(2) An APRA member is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

23 Leave of absence

(1) A full-time APRA member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may:

(a) grant a full-time APRA member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines; and

(b) grant a part-time APRA member leave of absence on the terms and conditions that the Minister determines.

24 Resignation

A person may resign his or her appointment as an APRA member, as Chair, or as Deputy Chair, by giving a written resignation to the Governor-General.

25 Termination of appointment

(1) The appointment of an APRA member is immediately terminated if the member becomes a director, officer or employee of a body regulated by APRA.

(2) The Governor-General may terminate the appointment of an APRA 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) in the case of a full-time member - if the member is absent from duty, except on leave of absence:

(i) for 14 consecutive days; or

(ii) for 28 days in any period of 12 months; or

(d) in the case of a part-time member - if the member is absent, except on leave of absence, from 3 consecutive meetings of APRA; or

(e) in the case of a full-time member - if the member engages, except with the Minister's approval, in paid employment outside the functions of his or her office; or

(f) in the case of a part-time member - if the member engages in paid employment that conflicts or could conflict with the proper performance of the functions of his or her office; or

(g) the member is or becomes a director, officer or employee of a body operating in the financial sector, other than a body regulated by APRA, and the Minister considers that the person is, will be, or could be, prevented from the proper performance of the functions of his or her office because of resulting conflicts of interest; or

(h) if the member fails, without reasonable excuse, to comply with subsection 48A(1) or 48B(1); or

(i) if the member has an interest that has been, or should have been, disclosed under subsection 48A(1) or 48B(1) and that conflicts, or could conflict, to a significant extent, with the proper performance of the functions of his or her office.

(3) In spite of anything contained in this section, if an APRA member:

(a) is an eligible employee for the purposes of the Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the meaning of that Act;

then he or she is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

(4) In spite of anything contained in this section, if an APRA member:

(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

then he or she is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

26 Other terms and conditions

An APRA member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Division 3 APRA meetings

27 Times and places of meetings

(1) APRA must hold the meetings that are necessary for the efficient performance and exercise of its functions and powers.

(2) Meetings are to be held at the times and places that the Chair determines.

(3) The Chair must convene a meeting if requested in writing by 2 or more APRA members.

28 Quorum

At a meeting:

(a) if APRA consists of 3 or 4 APRA members - 2 APRA members; or

(b) in any other case - 3 APRA members;

constitute a quorum.

29 Who is to preside at meetings

(1) The Chair must preside at all meetings at which he or she is present.

(2) If the Chair is not present at a meeting but the Deputy Chair is present, the Deputy Chair must preside.

(3) If neither the Chair nor the Deputy Chair is present at a meeting, the APRA members present must elect one of their number to preside.

30 Voting at meetings

(1) A question arising at a meeting is to be determined by a majority of the votes of the APRA members present and voting.

(2) The person presiding at a meeting has:

(a) a deliberative vote; and

(b) if necessary, also a casting vote.

31 Conduct of meetings

(1) APRA may regulate proceedings at its meetings as it considers appropriate.

(2) 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 APRA members may participate in meetings.

Note 2: Requirements relating to disclosure of interests are contained in Division 1 of Part 4A of this Act.

32 APRA resolutions without meetings

A resolution is taken to have been passed at a meeting if:

(a) APRA 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 APRA members indicate agreement with the resolution in accordance with the method determined by APRA; and

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

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