Commonwealth Consolidated Acts Commonwealth Consolidated ActsIn this Act, unless the contrary intention appears:
"ADI" means an authorised deposit - taking institution within the meaning of the Banking Act 1959 .
"approved netting arrangement" means a netting arrangement approved under section 12.
"approved RTGS system" means a payment or settlement system approved under section 9.
"APRA" means the Australian Prudential Regulation Authority.
" Banking Act statutory manager" has the same meaning as in the Banking Act 1959 .
"Business Transfer Act" means the Financial Sector (Transfer and Restructure) Act 1999 .
"close-out netting contract" means:
(a) a contract under which, if a particular event happens:
(i) particular obligations of the parties terminate or may be terminated; and
(ii) the termination values of the obligations are calculated or may be calculated; and
(iii) the termination values are netted, or may be netted, so that only a net cash amount (whether in Australian currency or some other currency) is payable; or
(b) a contract declared by the regulations to be a close - out netting contract for the purposes of this Act;
but does not include:
(c) a contract that constitutes, or is part of, an approved netting arrangement; or
(d) a contract in relation to which a declaration under section 15 is in force; or
(e) a contract declared by the regulations to not be a close - out netting contract for the purposes of this Act.
"Commonwealth constitutional reach" : a contract or arrangement is entered into in circumstances that are within Commonwealth constitutional reach if:
(a) a constitutional corporation is a party to the contract or arrangement; or
(b) the contract or agreement has a significant effect on the business affairs, or an activity, of a constitutional corporation; or
(c) the contract or arrangement is entered into in the course of, for the purposes of or in relation to one or more of the following:
(i) dealings in currency, bills of exchange or promissory notes;
(ii) money borrowed on the public credit of the Commonwealth;
(iii) trade and commerce between Australia and places outside Australia or between places outside Australia;
(iv) trade or commerce among the States;
(v) trade or commerce within a Territory, between a State and a Territory or between 2 Territories;
(vi) banking (other than State banking);
(vii) insurance (other than State insurance); or
(d) the contract or arrangement is entered into by means of or in relation to, postal, telegraphic, telephonic or other like services.
"constitutional corporation" means:
(a) a foreign corporation; or
(b) a trading or financial corporation formed within the limits of the Commonwealth.
"derivative" has the same meaning as in Chapter 7 of the Corporations Act 2001 .
"direction stay provision" means any of the following:
(aa) subsection 11CAC(2) of the Banking Act 1959 ;
(a) subsection 11CD(1A) of the Banking Act 1959 ;
(b) subsection 13N(2) of the Banking Act 1959 ;
(baa) subsection 77(2) of the Financial Accountability Regime Act 2023 ;
(ba) subsection 36C(2) of the Insurance Act 1973 ;
(c) subsection 103K(2) of the Insurance Act 1973 ;
(d) subsection 105(1A) of the Insurance Act 1973 ;
(da) subsection 230AAD(2) of the Life Insurance Act 1995 ;
(e) subsection 230AJ(2) of the Life Insurance Act 1995 ;
(f) subsection 230C(1A) of the Life Insurance Act 1995 ;
(g) subsection 101(2) of the Private Health Insurance (Prudential Supervision) Act 2015 .
"eligible obligation" has the meaning given by section 14A.
"external administration" : a person goes into external administration if:
(a) they become a body corporate that is a Chapter 5 body corporate within the meaning of the Corporations Act 2001 ; or
(b) they become an individual who is an insolvent under administration; or
(c) someone takes control of the person's property for the benefit of the person's creditors because the person is, or is likely to become, insolvent; or
(d) a Banking Act statutory manager takes control of the person's business under the Banking Act 1959 ; or
(daa) a statutory manager takes control of the person's business under the Corporations Act 2001 ; or
(da) an Insurance Act statutory manager takes control of the person's business under the Insurance Act 1973 ; or
(db) a Life Insurance Act statutory manager takes control of the person's business under the Life Insurance Act 1995 ; or
(e) the person comes under judicial management under the Insurance Act 1973 ; or
(f) the person, or a part of the person's business, comes under judicial management under the Life Insurance Act 1995 .
"external administrator" , for a person who goes into external administration, is:
(a) if, within the meaning of the Corporations Act 2001 , the person is a company that is under restructuring or that has made a restructuring plan that has not yet terminated--the restructuring practitioner (within the meaning of that Act) for the company or for the plan; and
(b) otherwise--the person who takes control of the property, part of the property, the business, or part of the business, of the person under the administration.
"financial property" means any of the following property, regardless of whether the property (or, for paragraph (h), the intermediary or the account) is in Australia or elsewhere:
(a) a security (within the meaning of subsections 92(1) and (2) of the Corporations Act 2001 );
(b) a derivative;
(c) a financial product (within the meaning of the Corporations Act 2001 ) that is traded on a financial market (within the meaning of Division 3 of Part 7.1 of that Act) that is:
(i) operated in accordance with an Australian market licence (within the meaning of that Act); or
(ii) exempt from the operation of Part 7.2 of that Act;
(d) a negotiable instrument (within the meaning of the Personal Property Securities Act 2009 );
(e) currency (whether of Australia or of any other country);
(f) gold, silver or platinum;
(g) property declared by the regulations to be financial property for the purposes of this Act;
(h) if a person (an intermediary ) maintains an account to which interests in property or rights to payment or delivery of property of a kind mentioned in any of paragraphs (a) to (g) may be credited or debited--the rights of a person in whose name the intermediary maintains the account, to the extent that those rights relate to the interests in that property or the rights to payment or delivery of that property;
(i) proceeds (including rights and property) of property that is financial property;
but does not include any property declared by the regulations to not be financial property for the purposes of this Act.
"foreign exchange contract" has the same meaning as in the Corporations Act 2001 .
"general insurer" has the same meaning as in the Insurance Act 1973 .
"general participant" in a payment or settlement system means a participant who cannot, under the operating rules for the system, settle transactions on their own account through the system.
"give security" has a meaning affected by section 5A.
" Insurance Act statutory manager" has the same meaning as in the Insurance Act 1973 .
"intermediated financial property" means the rights mentioned in paragraph (h) of the definition of financial property .
"life company" has the same meaning as in the Life Insurance Act 1995 .
" Life Insurance Act statutory manager" has the same meaning as in the Life Insurance Act 1995 .
"market netting contract" means:
(a) a contract:
(i) entered into in accordance with the rules that govern the operation of a netting market; and
(ii) under which obligations between parties to the contract are netted; or
(aa) the rules governing the operation of a netting market, if those rules have effect as a contract between a participant in the netting market and one or more other persons; or
(b) a contract declared by the regulations to be a market netting contract for the purposes of this Act;
but does not include:
(c) a contract that constitutes, or is part of, an approved netting arrangement; or
(d) a contract declared by the regulations not to be a market netting contract for the purposes of this Act.
"multilateral netting arrangement" means an arrangement that has more than 2 parties and under which the obligations owed by the parties to each other are netted.
"netting market" means:
(a) an arrangement that is:
(i) a licensed market or a licensed CS facility (both within the meaning of the Corporations Act 2001 ); and
(ii) approved by the Minister for the purposes of this definition; or
(b) an arrangement declared by the regulations to be a netting market for the purposes of this Act.
"non-terminal administration" : a person goes into non-terminal administration if:
(a) the person goes into external administration; and
(b) if the person is a body corporate--the external administration is not a winding up under the Corporations Act 2001 or a corresponding process under a law of a foreign country; and
(c) if the person is an individual--the external administration is not the result of the person becoming a bankrupt under the Bankruptcy Act 1966 , or the person having a corresponding status under a law of a foreign country.
"operating rules" for a payment or settlement system means the rules governing the operation of the system.
"participant" in an approved RTGS system means a person who is a participant in the system in accordance with the rules governing the operations of the system.
"party" to an approved netting arrangement is a person who is a party to the arrangement in accordance with the rules governing the arrangement.
"provable" : an obligation is provable in an external administration if:
(a) for an external administration that is a winding up under the Corporations Act 2001 --the obligation is a debt or claim that is admissible to proof against the body being wound up; or
(b) for an external administration that is a bankruptcy under the Bankruptcy Act 1966 --the obligation is a debt or liability provable in the bankruptcy; or
(c) in any other case--the person to whom the obligation is owed is entitled to share in any distribution of property to creditors under the administration on the basis of the obligation if the obligation is properly established.
"receiving body" has the same meaning as in the Business Transfer Act.
"regulated body" means a body corporate that is any of the following:
(a) an ADI;
(b) a general insurer;
(c) a life company;
(d) an authorised NOHC (within the meaning of the Banking Act 1959 );
(e) an authorised NOHC (within the meaning of the Insurance Act 1973 );
(f) a registered NOHC (within the meaning of the Life Insurance Act 1995 );
(g) a subsidiary of a body corporate mentioned in paragraph (a), (b), (c), (d), (e) or (f);
(h) a private health insurer within the meaning of the Private Health Insurance (Prudential Supervision) Act 2015 .
"regulated business" :
(a) in relation to an ADI--means the ADI's banking business (within the meaning of the Banking Act 1959 ); and
(b) in relation to a general insurer--means the general insurer's insurance business (within the meaning of the Insurance Act 1973 ); and
(c) in relation to a life company--means the life company's life insurance business (within the meaning of the Life Insurance Act 1995 ).
"related body corporate" , in relation to a body corporate, means a body corporate that is related to the first - mentioned body, as determined in accordance with section 5AA.
"Reserve Bank" means the Reserve Bank of Australia.
"resolution period" has the meaning given by section 15A.
"settling participant" in a payment or settlement system means a participant who, under the operating rules for the system, can settle transactions through the system on their own behalf and for other participants.
"specified moratorium provision" : each of the following is a specified moratorium provision :
(a) section 15BA of the Banking Act 1959 ;
(b) section 15BB of the Banking Act 1959 ;
(c) section 15BC of the Banking Act 1959 ;
(d) section 62PA of the Insurance Act 1973 ;
(e) section 62PB of the Insurance Act 1973 ;
(f) section 62PC of the Insurance Act 1973 ;
(g) section 62ZOS of the Insurance Act 1973 ;
(h) section 62ZOT of the Insurance Act 1973 ;
(j) section 62ZOU of the Insurance Act 1973 ;
(k) section 161A of the Life Insurance Act 1995 ;
(l) section 161B of the Life Insurance Act 1995 ;
(m) section 161C of the Life Insurance Act 1995 ;
(n) section 179AS of the Life Insurance Act 1995 ;
(o) section 179AT of the Life Insurance Act 1995 ;
(p) section 179AU of the Life Insurance Act 1995 .
"specified provisions" means:
(a) subsections 11CD(2) and (3), section 11F and subsection 13A(3) of the Banking Act 1959 ; and
(aa) subsections 105(2) and (3) of the Insurance Act 1973 ; and
(b) section 187 and subsections 230C(2) and (3) of the Life Insurance Act 1995 ; and
(c) section 86 of the Reserve Bank Act 1959 ; and
(d) sections 415D to 415FA, 434J to 434LA, 437D, 440B, 451E to 451GA, 453R, 454N to 454R, 468, 556 and 588FL, Division 2 of Part 5.7B and sections 823V, 843A to 843D, 844B, 849BB and 849CC of the Corporations Act 2001 ; and
(e) sections 120, 121, 122, 128B and 128C of the Bankruptcy Act 1966 ; and
(f) section 142 of the Superannuation Industry (Supervision) Act 1993 ; and
(fa) subsections 101(3) and (4) of the Private Health Insurance (Prudential Supervision) Act 2015 ; and
(fb) sections 267 and 267A of the Personal Property Securities Act 2009 ; and
(fca) subsections 77(3) and (4) of the Financial Accountability Regime Act 2023 ;
(fc) the specified moratorium provisions; and
(g) a law prescribed by the regulations for the purposes of this definition.
"specified stay provision" : each of the following is a specified stay provision :
(aa) subsection 11CAC(2) of the Banking Act 1959 ;
(a) subsection 11CD(1A) of the Banking Act 1959 ;
(b) subsection 13N(2) of the Banking Act 1959 ;
(c) subsection 14AC(2) of the Banking Act 1959 ;
(d) subsection 15C(2) of the Banking Act 1959 ;
(e) subsection 36AA(2) of the Business Transfer Act;
(eaa) subsection 77(2) of the Financial Accountability Regime Act 2023 ;
(ea) subsection 36C(2) of the Insurance Act 1973 ;
(f) subsection 62V(2) of the Insurance Act 1973 ;
(g) subsection 62ZB(2) of the Insurance Act 1973 ;
(ga) subsection 62ZOH(2) of the Insurance Act 1973 ;
(gb) subsection 62ZOX(2) of the Insurance Act 1973 ;
(h) subsection 103K(2) of the Insurance Act 1973 ;
(i) subsection 105(1A) of the Insurance Act 1973 ;
(j) subsection 165B(2) of the Life Insurance Act 1995 ;
(k) subsection 168C(2) of the Life Insurance Act 1995 ;
(ka) subsection 179AH(2) of the Life Insurance Act 1995 ;
(kb) subsection 179AX(2) of the Life Insurance Act 1995 ;
(kc) subsection 230AAD(2) of the Life Insurance Act 1995 ;
(l) subsection 230AJ(2) of the Life Insurance Act 1995 ;
(m) subsection 230C(1A) of the Life Insurance Act 1995 ;
(n) subsection 101(2) of the Private Health Insurance (Prudential Supervision) Act 2015 .
"statutory/judicial management" : a person is under statutory/judicial management if:
(a) a Banking Act statutory manager, Insurance Act statutory manager or Life Insurance Act statutory manager has control of the person's business; or
(b) the person is under judicial management under the Insurance Act 1973 ; or
(c) the person, or a part of the person's business, is under judicial management under the Life Insurance Act 1995 .
"trigger event" , for a close - out netting contract, means an event of a kind mentioned in paragraph (a) of the definition of close-out netting contract .
"voidable" : an action or thing is voidable in an external administration if it is:
(a) for an external administration that is a winding up under the Corporations Act 2001 --voidable under Division 2 of Part 5.7B of the Corporations Act 2001 ; or
(b) for an external administration that is a bankruptcy under the Bankruptcy Act 1966 --void as against the trustee in bankruptcy; or
(c) in any other case--void as against the external administrator or any other person, or voidable under the law governing the external administration.