Commonwealth Consolidated Acts Commonwealth Consolidated ActsMatters 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.
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
(c) the member has no reason to disbelieve the auditor.
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.
(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.