Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 2000 (Extracts only)

(24 of 2000)

An Act to amend laws, and deal with transitional matters, in connection with the reform of the financial sector, and for other purposes

Assented to 3 April 2000

The Parliament of Australia enacts:

[Minister’s second reading speech made in - House of Representatives on 30 June 1999 Senate on 29 September 1999]

1 Short Title

This Act may be cited as theFinancial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 2000.

2 Commencement

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

(2) Items 1 and 2 of Schedule 1 are taken to have commenced immediately after the commencement of theAustralian Prudential Regulation Authority Act 1998.

(3) Items 1 and 3 of Schedule 4 are taken to have commenced on 1 July 1998, immediately after the commencement of items 51 and 58 of Schedule 1 to theFinancial Sector Reform (Consequential Amendments) Act 1998.

(4) Items 2, 4, 5, 6, 8, 9, 10 and 11 of Schedule 4 are taken to have commenced on 22 December 1998.

(5) Items 2 and 4 of Schedule 5are taken to have commenced on 30 June 1997, immediately after the commencement of section 2 of theFinancial Laws Amendment Act 1997.

(6) Item 1 of Schedule 6 commences, or is taken to have commenced, immediately after the commencement of item 11 of Schedule 4 to theFinancial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999.

(7) Subject to subsection (8), the items of Schedule 10, other than items 1, 2, 4, 6, 7, 9 and 10, commence on a day to be fixed by Proclamation.

(8) If the items covered by subsection (7) do not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

(9) Items 1, 2 and 3 of Schedule 11 are taken to have commenced immediately after theFinancial Sector Reform (Amendments and Transitional Provisions) Act 1998received the Royal Assent.

(10) Item 4 of Schedule 11is taken to have commenced immediately after the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 received the Royal Assent.

(11) Item 5 of Schedule 11 commences at the same time as item 5 of Schedule 10.

(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.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 Amendment of the Australian Prudential Regulation Authority Act 1998

1 After subsection 55(1)

Insert:

(1A) Subject to subsection (2), sales tax is not payable by APRA, or by any other person, on goods that are for use by APRA.

2 Subsection 55(2)

After “subsection (1)”, insert “or subsection (1A)”.

3 Subsection 56(1)

Insert:

body regulated by APRA includes a body that has at any time been a body regulated by APRA.

4 Subsection 56(2)

Omit “(6) or (7)”, substitute “(6), (7), (7A) or (7B)”.

5 At the end of subsection 56(3)

Add:

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

6 At the end of subsection 56(4)

Add:

Note: A defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).

7 Subsection 56(5) (note)

Omit “Note:”, substitute “Note 1:”.

8 At the end of subsection 56(5)

Add:

Note 2: A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).

9 At the end of subsection 56(6)

Add:

Note: A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code).

10 At the end of subsection 56(7)

Add:

Note: A defendant bears an evidential burden in relation to the matters in subsection (7) (see subsection 13.3(3) of the Criminal Code).

11 After subsection 56(7)

Insert:

(7A) It is not an offence if the information, or the information contained in the document, as the case may be, is all or any of the following:

(a) the names of bodies that are regulated by APRA;

(b) the addresses at which bodies referred to in paragraph (a) conduct business;

(c) any other information that is reasonably necessary to enable members of the public to contact persons who perform functions in relation to bodies referred to in paragraph (a).

Note: A defendant bears an evidential burden in relation to the matters in subsection (7A) (see subsection 13.3(3) of the Criminal Code).

(7B) It is not an offence if the information, or the information contained in the document, as the case may be, is:

(a) a statement of APRA’s opinion as to whether or not a body regulated by APRA is complying, or was complying at a particular time, with a particular provision of an Act covered by this section; or

(b) a description of:

(i) court proceedings in relation to a breach or suspected breach by a person of a provision of an Act covered by this section; or

(ii) activity engaged in, or proposed to be engaged in, by APRA in relation to such a breach or suspected breach.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

12 At the end of subsection 56(11)

Add:

Note: For additional rules about personal information, see the Privacy Act 1988.

13 Section 57

Repeal the section.

Schedule 2 Amendment of the Banking Act 1959

1 Subsection 5(1)

Insert:

ASIC means the Australian Securities and Investments Commission.

2 After paragraph 63(5)(a)

Insert:

(aa) ASIC, a member of ASIC or a staff member (as defined in subsection 5(1) of the Australian Securities and Investments Commission Act 1989) only in the case of a demutualisation of an ADI; or

3 At the end of section 63

Add:

(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, in writing, 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.

(11) A determination under subsection (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(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.

Schedule 4 Amendment of the Financial Corporations (Transfer of Assets and Liabilities) Act 1993

1 Section 3 (subparagraph (b)(ii) of the definition of eligible foreign ADI )

Omit “3”, substitute “5”.

2 Section 3 (subparagraph (b)(ii) of the definition of eligible foreign ADI )

Omit “made either before, or not later than 5 years after, this Act commenced”, substitute “made before this Act commenced, or made after this Act commenced but before 1 July 2001”.

3 Section 3 (paragraph (b) of the definition of newly established local ADI )

Omit “3”, substitute “5”.

4 Section 3 (paragraph (b) of the definition of newly established local ADI )

Omit “made either before, or not later than 5 years after, this Act commenced”, substitute “made before this Act commenced, or made after this Act commenced but before 1 July 2001”.

5 Paragraph 4(b)

Omit “and has been from and including 18 June 1993,”.

6 Paragraphs 7(2)(a), (3)(a), (4)(a) and (5)(a)

Omit “, and has been from and including 18 June 1993,”.

7 Paragraph 7(6)(c)

Omit “within 8 years from the day on which this Act commences”, substitute “before 1 July 2004”.

8 Sub-subparagraph 20(2)(bb)(ii)(B)

Omit “5”, substitute “8”.

9 Sub-subparagraph 24(2)(bb)(ii)(B)

Omit “5”, substitute “8”.

10 Subsection 170-33(2) of Schedule 1

Omit “5”, substitute “8”.

11 Subsection 170-133(2) of Schedule 2

Omit “5”, substitute “8”.

Schedule 8 Amendment of the Retirement Savings Accounts Act 1997

1 Subsection 68(1)

Omit all the words from and including “APRA” (second occurring), substitute:

APRA may refer the details of the matter to the persons specified in subsection (2).

Note: Persons to whom APRA refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998. In particular, see paragraph (c) of the definition of officer in subsection 56(1), and subsections 56(2), (9) and (10), of that Act.

Schedule 9 Amendment of superannuation legislation relating to financial assistance to funds

Financial Institutions Supervisory Levies Collection Act 1998

1 Section 16 (at the end of the definition of fund )

Add “, but does not include a self managed superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993)”.

Superannuation (Financial Assistance Funding) Levy Act 1993

2 Title

Omit “ any such ”, substitute “ certain ”.

3 Section 3

Omit “such”, substitute “certain”.

4 Section 5 (at the end of the definition of fund )

Add “, but does not include a self managed superannuation fund”.

Superannuation Industry (Supervision) Act 1993

5 Section 228

Insert:

defined benefit fund means:

(a) a public sector superannuation scheme that:

(i) is a regulated superannuation fund; and

(ii) has at least one defined benefit member; or

(b) a regulated superannuation fund (other than a public sector superannuation scheme) that has at least one defined benefit member.

6 Section 228

Insert:

defined benefit member means:

(a) a member entitled, on retirement or termination of his or her employment, to be paid a benefit defined, wholly or in part, by reference to one or more of the following:

(i) the amount of the member’s salary at a particular date, being the date of the termination of the member’s employment or of the member’s retirement or an earlier date;

(ii) the amount of the member’s salary averaged over a period before retirement;

(iii) a specified amount; or

(b) a member who is being paid a defined benefit pension.

7 Section 228

Insert:

defined benefit pension means a pension other than:

(a) a pension wholly determined by reference to policies of life assurance purchased or obtained by the trustee of a regulated superannuation fund solely for the purposes of providing benefits to members of that fund; or

(b) an allocated pension (as defined in subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994).

8 Section 228

Insert:

eligible loss :

(a) in relation to a fund that is not a defined benefit fund - means a loss suffered by the fund as a result of fraudulent conduct, or theft; and

(b) in relation to a fund that is a defined benefit fund - means so much of a loss suffered by the fund as a result of fraudulent conduct, or theft, that a standard employer-sponsor of the fund:

(i) is required to pay to the fund; but

(ii) cannot pay to the fund while remaining able to pay all debts incurred by the standard employer-sponsor, as and when the debts become due and payable.

9 Section 228 (definition of loss )

Repeal the definition.

10 Paragraph 229(1)(a)

Repeal the paragraph, substitute:

(a) a fund suffers an eligible loss after the commencement of this Part; and

11 At the end of Division 1 of Part 23

Add:

230A APRA to advise Minister in relation to application for assistance

(1) The Minister must make a written request to APRA for advice in relation to the application. The request may specify:

(a) particular matters that APRA is to provide advice about; and

(b) a time by which the advice must be provided.

(2) APRA must comply with the request and may, in its advice, also address any other issues that APRA considers relevant to the determination of the application.

(3) The Minister’s written request to APRA made under subsection (1) for advice in relation to the application for assistance must be laid before each House of the Parliament as soon as practicable after the Minister has made a written determination under subsection 231(1).

12 Subsection 231(1)

Omit “and any additional information given by the trustee”, substitute “, any additional information given by the trustee, and APRA’s advice under section 230A”.

13 Subsection 231(1)

Omit “loss”, substitute “an eligible loss”.

14 Section 232

Omit “loss”, substitute “eligible loss”.

Schedule 10 Other amendments of the Superannuation Industry (Supervision) Act 1993

1 Subparagraph 6(1)(a)(viii)

Omit “(other than section 140)”.

2 Subparagraph 6(1)(c)(iii)

Repeal the subparagraph.

3 Subsection 10(1) (definition of approved form )

Repeal the definition, substitute:

approved form has the meaning given by section 11A.

4 Subsection 10(1)

Insert:

signed , in relation to a body corporate, means executed by or on behalf of the body corporate in a way that is effective in law and that binds the body corporate.

5 After section 11

Insert:

11A Approved forms

(1) In this Act, a reference to an approved form is a reference to a form approved by the Regulator, in writing, for the purposes of the provision in which the expression appears.

(2) An approved form may require particular information to be included in the completed form.

(3) An approved form may do either or both of the following:

(a) require or permit the form to be attached to, or to form part of, another document;

(b) require or permit the form to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements.

(4) An approved form may require the form to be signed by a particular person or persons. This applies whether or not a provision of this Act also requires the form to be signed.

(5) An approved form may make different requirements to be complied with according to whether or not the form is given in a way that is required or permitted as mentioned in paragraph (3)(b).

(6) If an approved form makes a requirement as mentioned in subsection (2), (3) or (4), a purported use of the form is not effective for the purposes of this Act unless the requirement has been complied with.

11B Electronic lodgment of approved forms

(1) If a person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b):

(a) the form is taken to constitute a written notice; and

(b) if the form includes the electronic signature of a person - the form is taken to be signed by that person.

(2) The person’s electronic signature is a unique identification, in an electronic form, that is approved by the Regulator for use by the person.

(3) A person is guilty of an offence if:

(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) either:

(i) the form purports to be given by another person; or

(ii) the form purports to be given on behalf of another person, and that other person has not consented to the giving of the form.

Maximum penalty: 50 penalty units.

(4) A person is guilty of an offence if:

(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) the form includes the electronic signature of another person who has not consented to the inclusion of the signature.

Maximum penalty: 50 penalty units.

(5) Subsections (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.

11C Declaration required if approved form lodged electronically on trustee’s behalf

(1) This section applies if:

(a) the Regulator is given an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and

(b) the form is given to the Regulator by a person on behalf of the trustee, or one or more of the trustees, of a superannuation entity.

In this section, the trustee, or each of the trustees, on whose behalf the form is given is referred to as the responsible trustee .

(2) The responsible trustee is guilty of an offence if the responsible trustee does not, before the form is given to the Regulator, make a signed declaration that states that:

(a) the person is authorised to give the form to the Regulator on the responsible trustee’s behalf; and

(b) the information in the form is correct.

Maximum penalty: 50 penalty units.

(3) The responsible trustee is guilty of an offence if the responsible trustee does not retain the declaration for 5 years after it is made.

Maximum penalty: 50 penalty units.

(4) The responsible trustee is guilty of an offence if:

(a) within the 5 year period, the Regulator requests the responsible trustee to produce the declaration to the Regulator; and

(b) the responsible trustee does not comply with the request.

Maximum penalty: 50 penalty units.

(5) Subsections (2), (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.

11D Electronic lodgment - documents other than approved forms

(1) A document that is not required to be lodged in an approved form may be lodged with the Regulator electronically only if:

(a) the Regulator and the person seeking to lodge it (either on the person’s own behalf or on another person’s behalf) have agreed, in writing, that it may be lodged electronically; or

(b) the Regulator has approved, in writing, the electronic lodgment of documents of that kind.

(2) The document is taken to be lodged with the Regulator if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).

6 Paragraph 18(3)(b)

Omit “under the common or official seal of”, substitute “signed by”.

7 Subsection 19(4)

Omit all the words from and including “written notice” to and including the end of paragraph (b), substitute:

written notice that is:

(a) in the approved form; and

(b) signed by the trustee or each trustee;

8 Subsections 36A(4), (5) and (6)

Repeal the subsections.

9 Subsection 131A(1)

Omit all the words from and including “the Regulator” (second occurring), substitute:

the Regulator may refer the details of the matter to the persons specified in subsection (2).

Note: Persons to whom the Regulator refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998 (if APRA is the Regulator) or section 252C of this Act (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of officer in subsection (1), and subsections (2), (9) and (10), of those sections.

10 Subsection 140(2)

Omit “a form approved by ASIC”, substitute “the approved form”.

11 Subsection 254(1)

Omit “the prescribed information to APRA or such other body or person as is specified in the regulations”, substitute “such information to APRA, or to such other body or person as is specified in the regulations, as is required by the approved form”.

12 Subsection 254(1) (note)

Repeal the note, substitute:

Note: The approved form for information required to be given under this subsection may require the trustee to set out the tax file number of the entity. See subsection 299U(8).

13 Subsection 299U(8)

Repeal the subsection, substitute:

Information to be given after establishment of entity

(8) The approved form for information required to be given under subsection 254(1) may require the tax file number of the entity to be given.

Schedule 11 Other miscellaneous minor technical amendments

Income Tax Assessment Act 1936

5 Subsection 161(3)

Omit “physically”.

Schedule 12 Transitional, saving and application provisions

Part 1 Transitional provisions for validation of determinations relating to financial sector supervisory levies

1 Definitions

In this Part:

Collection Act means the Financial Institutions Supervisory Levies Collection Act 1998.

deferred payment day means the day that is 6 weeks after the day on which this Part commences.

Imposition Act means any of the following Acts:

(a) the Authorised Non-operating Holding Companies Supervisory Levy Imposition Act 1998;

(b) the General Insurance Supervisory Levy Imposition Act 1998;

(d) the Retirement Savings Account Providers Supervisory Levy Imposition Act 1998;

(e) the Superannuation Supervisory Levy Imposition Act 1998.

levy paying entity has the same meaning as in the Collection Act.

Validation Act means any of the following Acts:

(a) the Authorised Non-operating Holding Companies Supervisory Levy Determination Validation Act 2000;

(b) the General Insurance Supervisory Levy Determination Validation Act 2000;

(d) the Retirement Savings Account Providers Supervisory Levy Determination Validation Act 2000;

(e) the Superannuation Supervisory Levy Determination Validation Act 2000.

2 Deferral of date for paying levy

(1) This item applies to a levy paying entity if, because of section 4 of a Validation Act:

(a) the entity is liable to pay levy imposed by an Imposition Act; and

(b) the levy payable by the entity would, apart from this item, have been due and payable under section 9 of the Collection Act before the deferred payment day.

(2) The levy payable by the entity is taken to be due and payable on the deferred payment day, despite section 9 of the Collection Act.

Note: This provision affects the calculation of late payment penalty (if any) under section 10 of the Collection Act.

3 No retrospective criminal liability

Nothing in this Part or the Validation Acts is taken to make a person criminally liable in respect of acts or omissions of the person before the day on which this Part commences, if the person would not have been so liable had this Part and the Validation Acts not been enacted.