Financial Sector Legislation Amendment Act (No. 1) 2003 (116 of 2003)

Schedule 2   Banking Act 1959

19   Section 61

Repeal the section, substitute:

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; and

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

Maximum penalty: 50 penalty units.

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

(4) Strict liability applies to:

(a) the physical element in subparagraph (3)(b)(ii) that the requirement was made under subsection (2); and

(b) the physical element in paragraph (3)(c) that no orders making determinations of a kind referred to in that paragraph are in force under section 11.

(5) If a body corporate does or fails to do an act in circumstances that give rise to the body corporate committing an offence against subsection (3), the body corporate commits an offence against that subsection in respect of:

(a) the first day on which the offence is committed; and

(b) each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (including the day of conviction for any such offence or any later day).

Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

(6) Nothing in this section is intended to limit the operation of any other provision of this Act.