Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 5(1) (definition of account - holder )
Omit "that has", substitute "that holds in its name, or keeps in its name,".
2 Subsection 5(1)
Insert:
"appointed auditor" means an auditor appointed in accordance with the prudential standards.
3 Subsection 5(1)
Insert:
"approved form" means a form approved, in writing, by APRA.
4 Subsection 5(1)
Insert:
"recapitalisation direction" means a direction given by APRA under subsection 13E(1).
5 After subsection 9(2)
Insert:
(2A) APRA may, by legislative instrument, set criteria for the granting of an authority to carry on banking business in Australia.
6 Subsection 9(3A)
Omit "of a NOHC", substitute "of another body corporate".
7 After subsection 9A(5)
Insert:
(5A) The notice of revocation of the authority may state that the authority continues in effect in relation to a specified matter or specified period, as though the revocation had not happened, for the purposes of:
(a) a specified provision of this Act or the regulations; or
(b) a specified provision of another law of the Commonwealth that is administered by APRA; or
(c) a specified provision of the prudential standards;
and the statement has effect accordingly.
8 After subsection 11AA(1)
Insert:
(1A) APRA may, by legislative instrument, set criteria for the granting of an authority under this section.
9 After subsection 11AB(5)
Insert:
(5A) The notice of the revocation of the authority may state that the authority continues in effect in relation to a specified matter or specified period, as though the revocation had not happened, for the purposes of:
(a) a specified provision of this Act or the regulations; or
(b) a specified provision of another law of the Commonwealth that is administered by APRA; or
(c) a specified provision of the prudential standards;
and the statement has effect accordingly.
10 After subsection 11AF(1AA)
Insert:
(1AB) Without limiting the prudential matters in relation to which APRA may determine a standard, a standard may provide for matters relating to:
(a) the appointment of auditors; or
(b) the conduct of audits.
11 After subsection 11AF(7B)
Insert:
(7BA) A standard may provide for a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time, despite:
(a) section 46AA of the Acts Interpretation Act 1901 ; and
(b) section 14 of the Legislative Instruments Act 2003 .
12 Subsection 11CA(1)
Before "APRA may give", insert "Without limiting subsection ( 1AA),".
13 Paragraph 11CA(1)(h)
Omit "sudden".
14 After subsection 11CA(1)
Insert:
(1AA) Without limiting subsection ( 1), APRA may give a body corporate that is an ADI or is an authorised NOHC a direction of a kind specified in subsection ( 2) if:
(a) APRA has reason to believe that:
(i) a subsidiary of the body corporate is, or is about to become, unable to meet the subsidiary's liabilities; or
(ii) there is, or there might be, a material risk to the security of the assets of a subsidiary of the body corporate; or
(iii) there has been, or there might be, a material deterioration in the financial condition of a subsidiary of the body corporate; or
(iv) a subsidiary of the body corporate is conducting the subsidiary's affairs in an improper or financially unsound way; or
(v) a subsidiary of the body corporate is conducting the subsidiary's affairs in a way that may cause or promote instability in the Australian financial system; and
(b) APRA considers that the direction is reasonably necessary for one or more prudential matters relating to the body corporate.
15 Paragraph 11CA(1A)(b)
After " subsection ( 1)", insert "or (1AA)".
16 After subsection 11CA(1A)
Insert:
(1B) In deciding whether to give a direction under subsection ( 1) or (1AA) to an ADI, APRA may disregard any external support for the ADI.
(1C) The regulations may specify that a particular form of support is not external support for the purposes of subsection ( 1B).
17 After subsection 11CA(2A)
Insert:
(2B) Without limiting the generality of paragraph ( 2)(p), a direction under that paragraph to a foreign ADI may be any one or more of the following:
(a) a direction that the ADI act in a way that:
(i) a particular asset, or a particular class of assets, of the ADI is returned to the control (however described) of the part of the ADI's banking business that is carried on in Australia; or
(ii) a particular liability, or a particular class of liabilities, of the ADI ceases to be the responsibility (however described) of the part of the ADI's banking business that is carried on in Australia;
(b) a direction that the ADI not act in a way that:
(i) a particular asset, or a particular class of assets, of the ADI ceases to be under the control (however described) of the part of the ADI's banking business that is carried on in Australia; or
(ii) a particular liability, or a particular class of liabilities, of the ADI becomes the responsibility (however described) of the part of the ADI's banking business that is carried on in Australia.
18 Section 11D
Repeal the section.
19 At the end of section 13
Add:
(6) To avoid doubt, this section applies to an ADI that is, or becomes, an externally - administered body corporate (within the meaning of the Corporations Act 2001 ) in the same way as this section applies to any other ADI.
20 Subparagraph 13A(1)(b)(iii)
Omit "and financial system stability in Australia".
21 At the end of paragraph 13A(1)(b)
Add:
(iv) it is likely that the ADI will be unable to carry on banking business in Australia consistently with the stability of the financial system in Australia; or
22 Paragraphs 13A(3)(c) and (d)
Repeal the paragraphs, substitute:
(c) third, the ADI's liabilities (if any) in Australia in relation to protected accounts that account - holders keep with the ADI;
(d) fourth, the ADI's debts (if any) to the Reserve Bank;
(e) fifth, the ADI's liabilities (if any) under an industry support contract that is certified under section 11CB;
(f) sixth, the ADI's other liabilities (if any) in the order of their priority apart from this subsection.
23 Paragraph 13A(4)(a)
After "goodwill", insert "and any assets or other amount excluded by the prudential standards for the purposes of this subsection".
24 At the end of section 13A
Add:
(7) To avoid doubt, this section applies to an ADI that is, or becomes, an externally - administered body corporate (within the meaning of the Corporations Act 2001 ) in the same way as this section applies to any other ADI.
25 After Subdivision A
Insert:
Subdivision AA -- Recapitalisation directions by APRA
13D Who this Subdivision applies to
This Subdivision applies to an ADI that:
(a) is a company that:
(i) is registered under the Corporations Act 2001 ; and
(ii) has a share capital; and
(b) does not have an ADI statutory manager.
13E Recapitalisation direction by APRA
(1) APRA may give an ADI a direction (a recapitalisation direction ) that requires the ADI to increase the ADI's level of capital to the level specified in the direction if:
(a) the ADI informs APRA that:
(i) the ADI considers that the ADI is likely to become unable to meet the ADI's obligations; or
(ii) the ADI is about to suspend payment; or
(b) APRA considers that, in the absence of external support:
(i) the ADI may become unable to meet the ADI's obligations; or
(ii) the ADI may suspend payment; or
(iii) it is likely that the ADI will be unable to carry on banking business in Australia consistently with the interests of the ADI's depositors; or
(iv) it is likely that the ADI will be unable to carry on banking business in Australia consistently with the stability of the financial system in Australia; or
(c) the ADI:
(i) becomes unable to meet the ADI's obligations; or
(ii) suspends payment.
(2) In deciding whether to give a recapitalisation direction, APRA must consult with the Australian Competition and Consumer Commission (the ACCC ), unless the ACCC notifies APRA, in writing, that the ACCC does not wish to be consulted about:
(a) the direction; or
(b) a class of directions that includes the direction.
(3) The regulation s may specify that a particular form of support is not external support for the purposes of paragraph ( 1)(b).
(4) A recapitalisation direction is not a legislative instrument.
13F Additional contents of a recapitalisation direction
(1) A recapitalisation direction may direct the ADI to issue:
(a) shares, or rights to acquire shares, in the ADI; or
(b) other capital instruments of a kind specified in the direction.
(2) A direction for the purposes of paragraph ( 1)(a) may specify that the shares or rights must:
(a) be of a kind specified in the direction; or
(b) have the characteristics specified in the direction.
(3) A direction for the purposes of paragraph ( 1)(b):
(a) must not specify a kind of capital instrument unless that kind of capital instrument is specified in the regulations; and
(b) may specify that the capital instruments must have the characteristics specified in the direction.
13G Compliance with a recapitalisation direction
Giving members of the ADI notice of share issue etc.
(1) As soon as practicable after an ADI issues shares, rights to acquire shares, or other capital instruments, in compliance with a recapitalisation direction, the ADI must give written notice to the persons who were members (under section 231 of the Corporations Act 2001 ) of the ADI just before the issue.
(2) The notice must:
(a) identify the issue; and
(b) explain the effect of the issue of the shares, rights to acquire shares, or other capital instruments on the members' interests.
Issue of shares etc. despite other laws etc.
(3) An ADI may issue shares, rights to acquire shares, or other capital instruments, in compliance with a recapitalisation direction despite:
(a) the Corporations Act 2001 ; and
(b) the ADI's constitution; and
(c) any contract or arrangement to which the ADI is a party; and
(d) any listing rules (as defined in section 761A of the Corporations Act 2001 ) of a financial market (as defined in that section) in whose official list the ADI is included.
13H APRA must obtain expert's report on the fair value of shares etc.
(1) APRA must comply with this section before giving a recapitalisation direction that directs an ADI to issue shares, or rights to acquire shares, in the ADI, unless APRA is satisfied that compliance with this section would detrimentally affect:
(a) the depositors with the ADI; or
(b) the stability of the financial system in Australia.
(2) APRA must:
(a) obtain a report on the fair value of the shares, or rights to acquire shares, in the ADI from an expert who is not an associate of the company under Division 2 of Part 1.2 of the Corporations Act 2001 ; and
(b) consider the report.
(3) The report must set out:
(a) the amount that is, in the expert's opinion, the fair value for each of those shares or rights; and
(b) the reasons for forming the opinion; and
(c) any relationship between the expert and:
(i) the ADI; or
(ii) a person who is an associate of the ADI under Division 2 of Part 1.2 of the Corporations Act 2001 ;
including any circumstances in which the expert gives the ADI or person advice, or acts on behalf of the ADI or person, in the proper performance of the functions attaching to the expert's professional capacity or business relationship with the ADI or person; and
(d) any financial or other interest of the expert that could reason a bly be regarded as being capable of affecting the expert's ability to give an unbiased opinion in relation to the matter being reported on.
13J Determination of the fair value of shares by an expert
(1) In determining the fair value for each share in an ADI for the purposes of paragraph 13H(3)(a), the expert must:
(a) first, assess the value of the ADI as a whole, in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of the ADI; and
(b) then, allocate that value among the classes of shares in the ADI that:
(i) have been issued; or
(ii) APRA proposes to direct be issued (taking into account the relative financial risk, and voting and distribution rights, of the classes); and
(c) then, allocate the value of each class pro rata among the shares in that class that:
(i) have been issued; or
(ii) APRA proposes to direct be issued (without allowing a premium or applying a discount for particular shares in that class).
(2) The Minister may give the expert written notice of assumptions for the valuation of the company.
(3) The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions.
(4) A notice given under subsection ( 2) or (3) is not a legislative instrument.
13K Determination of the fair value of rights by an expert
(1) In determining the fair value for each right to acquire shares in an ADI for the purposes of paragraph 13H(3)(a), the expert must act in accordance with the assumptions (if any) notified to the expert by the Minister for the valuation of that right.
(2) The Minister may give the expert written notice of assumptions for the valuation of such rights.
(3) The Minister may, by further written notice given to the expert, revoke, but not vary, notice of the assumptions.
(4) A notice given under subsection ( 2) or (3) is not a legislative instrument.
13L Ascertaining the fair value of other capital instruments
(1) APRA must comply with this section before giving a recapitalisation direction that directs an ADI to issue capital instruments other than shares, or rights to acquire shares, in the ADI.
(2) APRA must comply with any requirements of the regulations relating to ascertaining the fair value of the capital instruments.
(3) Regulations made for the purposes of this section may specify different requirements in relation to different kinds of capital instruments.
A contravention of:
(a) section 13H or subsection 13J(1) or 13K(1); or
(b) section 13L or regulations made for the purposes of that subsection;
does not affect the validity of a recapitalisation direction or anything done in compliance with the direction.
13N Recapitalisation direction not grounds for denial of obligations
(1) This section applies if an ADI is party to a contract, whether the proper law of the contract is:
(a) Australian law, including the law of a State or Territory; or
(b) law of a foreign country, including the law of part of a foreign country.
(2) The fact that the ADI is subject to a recapitalisation direction does not allow the contract, or a party to the contract, other than the ADI, to do any of the following:
(a) deny any obligation under the contract;
(b) accelerate any debt under the contract;
(c) close out any transaction relating to the contract.
13P Supply of information about issue and revocation of recapitalisation directions
Power to publish notice of recapitalisation directions in Gazette
(1) APRA may publish in the Gazette notice of a recapitalisation direction.
(2) The notice must include:
(a) the name of the ADI that is given the direction; and
(b) a summary of the direction.
Requirement to publish notice of revocation of certain recapitalisation directions in Gazette
(3) If APRA publishes notice of a recapitalisation direction and later revokes the direction, APRA must publish in the Gazette notice of that revocation as soon as practicable after the revocation.
(4) Failure to publish notice of the revocation does not affect the validity of the revocation.
Requirement to provide information about recapitalisation direction to Minister and Reserve Bank
(5) If the Minister or the Reserve Bank requests APRA to provide information about:
(a) any recapitalisation directions in respect of a particular ADI; or
(b) any recapitalisation directions made during a specified period in respect of any ADIs;
APRA must comply with the request.
Power to inform Minister and Reserve Bank of recapitalisation direction
(6) APRA may provide any information that APRA considers appropriate to the Minister or the Reserve Bank about any recapitalisation directions, or revocations of recapitalisation directions, in respect of any ADI, at any time.
Requirement to inform Minister and Reserve Bank of revocation of recapitalisation direction if informed of making of direction
(7) If APRA:
(a) provides the Minister or the Reserve Bank with information about a recapitalisation direction; and
(b) later revokes the direction;
APRA must notify that person of the revocation of the direction as soon as practicable after the revocation.
(8) Failure to notify the person does not affect the validity of the revocation.
Secrecy requirements
(9) Information relating to recapitalisation directions and revocations of recapitalisation directions is subject to the secrecy requirements in Part 6 of the Australian Prudential Regulation Authority Act 1998 , unless the information has been published in the Gazette .
13Q Non - compliance with a recapitalisation direction
(1) An ADI commits an offence if:
(a) the ADI does, or refuses or fails to do, an act; and
(b) doing, or refusing or failing to do, the act results in a contravention of a recapitalisation direction given to the ADI.
Penalty: 50 penalty units.
(2) However, subsection ( 1) does not apply if:
(a) the ADI made reasonable efforts to comply with the recapitalisation direction; and
(b) the ADI's contravention is due to circumstances beyond the ADI's control.
Note: A defendant bears an evidential burden in relation to the matter in subsection ( 2) (see subsection 13.3(3) of the Criminal Code ).
(3) If an ADI does, or refuses or fails to do, an act in circumstances that give rise to the ADI committing an offence against subsection ( 1), the ADI 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 ADI 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) An officer of an ADI commits an offence if:
(a) the officer refuses or fails to take reasonable steps to ensure that the ADI complies with a recapitalisation direction given to the ADI; and
(b) the officer's duties include ensuring that the ADI complies with the direction, or with a class of directions that includes the direction.
Penalty: 50 penalty units.
(5) If an officer of an ADI refuses or fails to take reasonable steps to ensure that the ADI complies with a recapitalisation direction given to the ADI in circumstances that give rise to the officer committing an offence against subsection ( 4), the officer 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 officer 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) In this section, officer has the meaning given by section 9 of the Corporations Act 2001 .
13R Exceptions to Part IV of the Trade Practices Act 1974
For the purposes of subsection 51(1) of the Trade Practices Act 1974 , the following things are specified and specifically authorised:
(a) the acquisition of shares in an ADI as a direct result of:
(i) the issue of the shares in compliance with a recapitalisation direction given to the ADI; or
(ii) the exercise of a right to acquire shares that was issued in compliance with such a recapitalisation direction;
(b) the acquisition of other capital instruments as a direct result of the issue of the other capital instruments in compliance with a recapitalisation direction given to an ADI.
26 Section 13R
Omit " Trade Practices Act 1974 ", substitute " Competition and Consumer Act 2010 ".
Note: The heading to section 13R is altered by omitting " Trade Practices Act 1974 " and substituting " Competition and Consumer Act 2010 ".
27 After section 14AC
Insert:
14AD APRA may require a person to give information etc. for the purposes of this Division
APRA may require person to give information etc.
(1) APRA may require a person, by written notice given to the person, to give APRA information, or documents containing information, relating to the business of an ADI that has an ADI statutory manager if:
(a) in a case where the ADI statutory manager is APRA:
(i) APRA believes, on reasonable grounds, that the person has such information or documents; and
(ii) APRA requires the information or documents for the purposes of this Division; and
(b) in a case where the ADI statutory manager is not APRA:
(i) the ADI statutory manager requests, in writing, that APRA require the person to give the information or documents under this subsection; and
(ii) APRA believes, on reasonable grounds, that the person has such information or documents; and
(iii) APRA is satisfied that the ADI statutory manager requires the information or documents for the purposes of this Division.
(2) The notice:
(a) must specify a period within which the information or documents must be given to APRA; and
(b) may specify the form and manner in which the information or documents must be given to APRA.
(3) The period specified under paragraph ( 2)(a) must be reasonable in all the circumstances.
Offence
(4) A person commits an offence if:
(a) APRA requires the person to give APRA information or documents under subsection ( 1); and
(b) the person refuses or fails to give the information or documents as required.
Penalty: Imprisonment for 12 months or 50 penalty units, or both.
Self - incrimination
(5) A person is not excused from complying with a requirement under subsection ( 1) to give information or documents on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(6) However, in the case of an individual:
(a) the information or document given; and
(b) giving the information or document; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or document;
are not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information or document.
Section 14A not limited
(7) This section does not limit section 14A.
28 Subsection 14F(2)
Omit "under which the ADI is incorporated or is taken to be incorporated".
29 After subsection 16AF(1)
Insert:
(1A) The interest is payable at:
(a) the rate of interest that is payable according to the terms and conditions of the protected account; or
(b) if APRA considers that that rate is not certain--the rate of interest that APRA declares, in writing, is payable.
(1B) A declaration under paragraph ( 1A)(b) is not a legislative instrument.
30 At the end of section 16AF
Add:
Pooled accounts
(3) If:
(a) one person holds the protected account mentioned in subsection ( 1); and
(b) the person is the trustee of 2 or more trusts; and
(c) the net credit balance of the account consists of the trust funds of 2 or more of those trusts;
subsection ( 1) entitles the person to be paid, in connection with that account, the amount worked out under subsection ( 1).
31 Section 16AJ
Before "APRA", insert "(1)".
32 Paragraph 16AJ(c)
Omit "(including a provisional liquidator)".
33 At the end of section 16AJ
Add:
(2) Without limiting subsection ( 1), APRA may require a liquidator to assist APRA in APRA's function of paying account holders their entitlements under Subdivision C.
(3) For example, APRA may, by notice issued under subsection ( 1), require the liquidator to do the things specified in the notice, including:
(a) carrying on the business of the ADI so far as necessary, or doing any other act or thing, to facilitate APRA's payment to account holders in accordance with Subdivision C; or
(b) seeking the re - entry of the ADI into a payment system (as defined in section 7 of the Payment Systems (Regulation) Act 1998 ); or
(c) transferring the entitlements of account holders to accounts held by the account holders in another ADI.
(4) The liquidator must give compliance with a notice issued under subsection ( 1) precedence over the other aspects of winding up the ADI, including any requirements under the Corporations Act 2001 .
(5) However, the liquidator is not required to comply with a notice issued under subsection ( 1) unless there is sufficient available property to meet the liquidator's costs likely to be incurred in complying with the notice in full, unless APRA indemnifies the liquidator for those costs.
(6) The liquidator has the powers that are necessary or convenient to comply with a notice issued under subsection ( 1).
(7) The liquidator's costs of complying with a notice issued under subsection ( 1) are expenses properly incurred by a relevant authority for the purposes of section 556 of the Corporations Act 2001 .
(8) A reference in this section to a liquidator's costs includes:
(a) remuneration, or fees for services, payable to the liquidator for complying with a notice issued under subsection ( 1); and
(b) expenses incurred by the liquidator in complying with a notice issued under subsection ( 1).
(9) A reference in this section to a liquidator includes a reference to a provisional liquidator.
34 Paragraphs 16AK(2)(d) and (e)
Repeal the paragraphs.
35 Subsection 16AO(1)
Omit "(whether by APRA or by a delegate)".
36 Before section 16B
Insert:
16AV Appointed auditor's functions and duties
(1) This section applies if the prudential standards require an auditor to be appointed.
(2) The appointed auditor must perform the functions and duties of an auditor that are set out in the prudential standards.
(3) The appointed auditor must comply with the prudential standards in performing the functions and duties.
(4) The ADI or authorised NOHC to whom the prudential standards apply must make any arrangements that are necessary to enable the appointed auditor to perform the functions and duties.
37 Paragraph 16BA(11)(c)
Omit "the auditor", substitute "an auditor".
38 At the end of Division 2A of Part II
Add:
16D Appointed auditor must notify APRA of attempts to unduly influence etc. the appointed auditor
(1) If an appointed auditor of an ADI or authorised NOHC is aware of circumstances that amount to:
(a) an attempt by any person to unduly influence, coerce, manipulate or mislead the appointed auditor in connection with the performance of the appointed auditor's functions or duties; or
(b) an attempt by any person to otherwise interfere with the performance of the appointed auditor's functions or duties;
the appointed auditor must notify APRA in writing of those circumstances as soon as practicable, and in any case within 28 days, after the appointed auditor becomes aware of those circumstances.
(2) An appointed auditor commits an offence if the appointed auditor contravenes subsection ( 1).
Penalty: Imprisonment for 12 months or 50 penalty units, or both.
16E Giving false or misleading information to auditor
Offence--person knows the information is false or misleading etc.
(1) A person commits an offence if:
(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and
(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and
(c) the information relates to the affairs of the body corporate; and
(d) the person knows that the information:
(i) is false or misleading in a material particular; or
(ii) is missing something that makes the information misleading in a material respect.
Penalty: Imprisonment for 5 years or 200 penalty units, or both.
Offence--person fails to ensure the information is not false or misleading etc.
(2) A person commits an offence if:
(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and
(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and
(c) the information relates to the affairs of the body corporate; and
(d) the information:
(i) is false or misleading in a material particular; or
(ii) is missing something that makes the information misleading in a material respect; and
(e) the person did not take reasonable steps to ensure that the information:
(i) was not false or misleading in a material particular; or
(ii) was not missing something that makes the information misleading in a material respect.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
Determining whether information is false or misleading
(3) If information is given to the appointed auditor in response to a question asked by the appointed auditor, the information and the question must be considered together in determining whether the information is false or misleading.
39 Subsection 17(1)
Before "auditor", insert "appointed".
40 After section 22
Insert:
22A Privilege against exposure to penalty--disqualification under section 21
Proceedings
(1) In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:
(a) to answer a question or give information; or
(b) to produce books, accounts or other documents; or
(c) to do any other act;
on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 21.
(2) Subsection ( 1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.
Statutory requirements
(3) A person is not entitled to refuse or fail to comply with a requirement under this Act:
(a) to answer a question or give information; or
(b) to produce books, accounts or other documents; or
(c) to do any other act;
on the ground th at the answer or information, production of the book or other thing , or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 21.
Admissibility
(4) Subsections 14A(4), 14AD(6) and 52F(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 21.
Other provisions
(5) Subsections ( 1) and (3) of this section have effect despite anything in:
(a) clause 5 of Schedule 2; or
(b) any other provision of this Act; or
(c) the Administrative Appeals Tribunal Act 1975 .
Definition
(6) In this section:
"penalty" includes forfeiture.
41 Subparagraphs 52A(2)(a)(ii) and 52E(1)(b)(i) and (c)(i)
Omit "the auditor", substitute "an auditor".
42 Before section 61
Insert:
60 Keeping of financial records
Financial records must be kept in Australia etc.
(1) If an ADI is required, under section 286 of the Corporations Act 2001 , to keep financial records (within the meaning of that Act), the ADI must keep the records:
(a) in the English language, or in a form in which the records are readily accessible and readily convertible into writing in the English language; and
(b) either:
(i) in Australia; or
(ii) if APRA gives written approval and the ADI meets the conditions (if any) specified in the approval--in another country specified in the approval.
(2) The approval may be given subject to specified conditions.
Notification of address where financial records are kept
(3) An ADI must notify APRA, in the approved form, of the address where the ADI's financial records are kept:
(a) if, immediately before the commencement of this section, the ADI has a section 9 authority--within 28 days after that commencement; or
(b) otherwise--within 28 days after the ADI is granted a section 9 authority.
(4) If:
(a) an ADI has notified APRA of the address where the ADI's financial records are kept; and
(b) the ADI moves the financial records to a new address;
the ADI must notify APRA, in the approved form, of the new address where the financial records are kept.
(5) The notification must be given within 28 days after the day on which the financial records are moved to the new address.
Offence
(6) An ADI commits an offence if the ADI contravenes subsection ( 1).
Penalty: 200 penalty units.
Merits review
(7) Part VI applies to the following decisions:
(a) a refusal to give an approval under paragraph ( 1)(b);
(b) a decision to give the approval subject to conditions.
43 At the end of section 61
Add:
(7) To avoid doubt, this section applies to a body corporate that is, or becomes, an externally - administered body corporate (within the meaning of the Corporations Act 2001 ) in the same way as this section applies to any other body corporate.
44 At the end of section 62
Add:
(3) To avoid doubt, this section applies to a person that is, or becomes, an externally - administered body corporate (within the meaning of the Corporations Act 2001 ) in the same way as this section applies to any other person.
45 Paragraphs 62A(1A)(a) and (1D)(a)
Omit "the auditor", substitute "an auditor".
Part 2 -- Application provision
46 Application--priorities for application of the assets of an ADI in Australia
Subsection 13A(3) of the Banking Act 1959 , as amended by this Schedule, applies to an ADI that becomes unable to meet the ADI's obligations, or suspends payment, on or after the commencement of this item.