Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person commits an offence if:
(a) the person carries on a financial business, whether or not in Australia; and
(b) the person assumes or uses, in Australia, a restricted word or expression in relation to that financial business; and
(c) neither subsection (1AB) nor subsection (1AC) allows that assumption or use of that word or expression; and
(d) APRA did not consent to that assumption or use of that word or expression; and
(e) there is no determination in force under section 11 that this subsection does not apply to the person.
Note 1: For the meanings of restricted word or expression , assume or use and financial business , see subsection (4).
Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 3: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(1AA) If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence against subsection (1), the person 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 person 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.
(1AB) It is not an offence against subsection (1) for the Reserve Bank to assume or use the words bank , banker or banking in relation to its financial business.
(1AC) It is not an offence against subsection (1) for an ADI to assume or use the words bank , banker or banking in relation to the ADI's financial business.
Note: See also section 66AA, which deals with the use of the word bank by ADIs.
(1B) A consent may be expressed to apply to a particular person or to persons included in a class of persons.
(2) APRA may, at any time:
(a) impose conditions, or additional conditions, on a consent; or
(b) vary or revoke conditions imposed on a consent; or
(c) revoke a consent.
(2A) The form of the granting of a consent, or the taking of action under subsection (2) in relation to a consent, is to be as follows:
(a) if the consent applies to a particular person--notice in writing served on the person;
(b) if the consent applies to a class of persons--notice in writing published in the Gazette .
(2B) If APRA:
(a) grants a consent; or
(b) takes action under subsection (2) in relation to a consent;
APRA must give ASIC notice of the granting of the consent or the taking of the action.
(3) A person commits an offence if:
(a) the person has been given a consent under this section; and
(b) the person contravenes a condition to which the consent is subject; and
(c) there is no determination in force under section 11 that this subsection does not apply to the person.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(3A) If a person does or fails to do an act in circumstances that give rise to the person committing an offence against subsection (3), the person 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 person 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.
(4) In this section:
(a) a reference to a restricted word or expression is a reference to:
(i) the word bank , banker or banking ; or
(ii) the expression building society , credit union or credit society ; or
(iii) any other word or expression specified in a determination in force under subsection (5); or
(iv) any other word or expression (whether or not in English) that is of like import to a word or expression covered by any of the previous subparagraphs; and
(b) a reference to a word or expression being assumed or used includes a reference to the word or expression being assumed or used:
(i) as part of another word or expression; or
(ii) in combination with other words, letters or other symbols; and
(c) a reference to a financial business is a reference to a business that:
(i) consists of, or includes, the provision of financial services; or
(ii) relates, in whole or in part, to the provision of financial services.
(5) APRA may, by legislative instrument, determine that a specified word or expression is to be a restricted word or expression for the purposes of this section.