2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Financial Sector Legislation Amendment (Simplifying Regulation and Review) Bill 2007 No. , 2007 (Treasury) A Bill for an Act to amend the law relating to banking, insurance, superannuation and other matters in the Treasury portfolio, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Streamlining prudential regulation 3 Part 1--Amendments commencing on Royal Assent 3 A New Tax System (Australian Business Number) Act 1999 3 Banking Act 1959 4 Corporations Act 2001 16 Insurance Act 1973 17 Life Insurance Act 1995 26 Superannuation Industry (Supervision) Act 1993 43 Part 2--Amendments commencing 1 January 2008 53 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 53 Banking Act 1959 53 Corporations Act 2001 59 Income Tax Assessment Act 1997 60 Insurance Act 1973 61 Life Insurance Act 1995 69 Superannuation Industry (Supervision) Act 1993 82 Part 3--Amendments commencing 12 months after Royal Assent 85 A New Tax System (Australian Business Number) Act 1999 85 Superannuation Industry (Supervision) Act 1993 85 Part 4--Amendments commencing 1 July 2011 88 Life Insurance Act 1995 88 Part 5--Application, transitional and saving provisions 91 Schedule 2--Financial assistance 94 Financial Institutions Supervisory Levies Collection Act 1998 94 Superannuation Industry (Supervision) Act 1993 94 Schedule 3--Accounts, reporting etc. obligations 98 [Page Break] Financial Sector (Collection of Data--Consequential and Transitional Provisions) Act 2001 98 Income Tax Assessment Act 1936 98 Superannuation Industry (Supervision) Act 1993 98 Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 106 Schedule 4--Technical amendments relating to legislative instruments 107 Australian Securities and Investments Commission Act 2001 107 Authorised Deposit-taking Institutions Supervisory Levy Imposition Act 1998 107 Authorised Non-operating Holding Companies Supervisory Levy Imposition Act 1998 107 Banking Act 1959 107 Cheques Act 1986 108 Commonwealth Bank Sale Act 1995 108 Commonwealth Borrowing Levy Collection Act 1987 109 Corporations Act 2001 109 Currency Act 1965 111 Financial Sector (Business Transfer and Group Restructure) Act 1999 111 Financial Sector (Collection of Data) Act 2001 111 Insurance Acquisitions and Takeovers Act 1991 112 Insurance Act 1973 112 Life Insurance Supervisory Levy Imposition Act 1998 113 Payment Systems and Netting Act 1998 113 Retirement Savings Account Providers Supervisory Levy Imposition Act 1998 113 Superannuation Industry (Supervision) Act 1993 113 Superannuation Supervisory Levy Determination Validation Act 2000 115 Superannuation Supervisory Levy Imposition Act 1998 115 B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 banking, insurance, superannuation and other 3 matters in the Treasury portfolio, and for related 4 purposes 5 The Parliament of Australia enacts: 6 1 Short title 7 This Act may be cited as the Financial Sector Legislation 8 Amendment (Simplifying Regulation and Review) Act 2007. 9 2 Commencement 10 (1) Each provision of this Act specified in column 1 of the table 11 commences, or is taken to have commenced, in accordance with 12 column 2 of the table. Any other statement in column 2 has effect 13 according to its terms. Financial Sector Legislation Amendment (Simplifying Regulation and Review) Bill 2007 No. , 2007 1 [Page Break] Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The day on which this Act receives the Part 1 Royal Assent. 3. Schedule 1, 1 January 2008. 1 January 2008 Part 2 4. Schedule 1, On the day after the end of the period of 12 Part 3 months beginning on the day on which this Act receives the Royal Assent. 5. Schedule 1, 1 July 2011. 1 July 2011 Part 4 6. Schedule 1, The day on which this Act receives the Part 5 Royal Assent. 7. Schedules 2, 3 The day on which this Act receives the and 4 Royal Assent. 2 Note: This table relates only to the provisions of this Act as originally 3 passed by both Houses of the Parliament and assented to. It will not be 4 expanded to deal with provisions inserted in this Act after assent. 5 (2) Column 3 of the table contains additional information that is not 6 part of this Act. Information in this column may be added to or 7 edited in any published version of this Act. 8 3 Schedule(s) 9 Each Act that is specified in a Schedule to this Act is amended or 10 repealed as set out in the applicable items in the Schedule 11 concerned, and any other item in a Schedule to this Act has effect 12 according to its terms. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Schedule 1--Streamlining prudential 3 regulation 4 Part 1--Amendments commencing on Royal Assent 5 A New Tax System (Australian Business Number) Act 1999 6 1 Section 5 (heading) 7 Repeal the heading, substitute: 8 5 Application to government entities, non-profit sub-entities, 9 superannuation funds and certain RSE licensees 10 2 Section 5 11 Before "This", insert "(1)". 12 3 At the end of section 5 13 Add: 14 (2) This Act applies to an *RSE licensee, or an applicant for an *RSE 15 licence, that is a group of individual trustees as if the group were 16 an *entity *carrying on an *enterprise in *Australia. 17 4 Section 16 (heading) 18 Repeal the heading, substitute: 19 16 Application of sections 14 and 15 to partnerships, unincorporated 20 associations and bodies and certain RSE licensees 21 5 After subsection 16(2) 22 Insert: 23 Application to RSE licensee that is a group of individual trustees 24 (2A) If, but for this subsection, section 14 or 15 would impose an 25 obligation on an *RSE licensee that is a group of individual 26 trustees, the obligation is imposed on each individual, but may be 27 discharged by any of the individuals. [Page Break] 2 Repeal the heading, substitute: 3 Defences for partners, members of committee of management and 4 certain RSE licensees 5 7 Subsection 16(3) 6 Omit "or (2)", substitute ", (2) or (2A)". 7 8 Section 41 8 Insert: 9 RSE licence means an RSE licence within the meaning of the 10 Superannuation Industry (Supervision) Act 1993. 11 9 Section 41 12 Insert: 13 RSE licensee means an RSE licensee within the meaning of the 14 Superannuation Industry (Supervision) Act 1993. 15 Banking Act 1959 16 10 Paragraphs 7(1)(c), 8(1)(d), 9(6)(c) and 10(3)(c) 17 Omit "order in force under section 11 determining", substitute 18 "determination in force under section 11". 19 11 Subsections 11(1) and (2) 20 Repeal the subsections, substitute: 21 (1) APRA may, in writing, determine that any or all of the following 22 provisions of this Act do not apply to a person while the 23 determination is in force: 24 (a) a provision of Division 1, 1AA or 1A of Part II (other than 25 section 11A, 11B or 11C); 26 (b) section 66; 27 (c) section 66A; 28 (d) section 67; 29 (e) section 69. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (a) may be expressed to apply to a particular person or to a class 3 of persons; and 4 (b) may specify the period during which the determination is in 5 force; and 6 (c) may be made subject to specified conditions. 7 (2A) If APRA makes a determination that applies to a particular person, 8 APRA must also give the person written notice of the 9 determination. 10 12 Paragraph 11(3)(b) 11 Omit "an order" (wherever occurring), substitute "a determination". 12 13 Subsection 11(4) 13 Repeal the subsection, substitute: 14 (4) APRA may, in writing, vary or revoke a determination under this 15 section. 16 (5) The following instruments made under this section are not 17 legislative instruments: 18 (a) a determination that applies to a particular person; 19 (b) an instrument varying or revoking a determination that 20 applies to a particular person. 21 (6) Otherwise, an instrument made under this section is a legislative 22 instrument. 23 14 Paragraph 11AA(5)(c) 24 Omit "order in force under section 11 determining", substitute 25 "determination in force under section 11". 26 15 Subsection 11AF(2) 27 Repeal the subsection, substitute: 28 (2) A standard may provide for APRA to exercise powers and 29 discretions under the standard, including (but not limited to) 30 discretions to approve, impose, adjust or exclude specific 31 prudential requirements in relation to one or more specified ADIs 32 or authorised NOHCs. [Page Break] 2 Insert: 3 (3A) A standard referred to in paragraph (1)(d), or an instrument varying 4 or revoking such a standard, has effect: 5 (a) from the day on which the standard, variation or revocation is 6 made; or 7 (b) if the standard, variation or revocation specifies a later day-- 8 from that later day. 9 17 Subsections 11AF(4), (5), (6) and (6A) 10 Repeal the subsections. 11 18 Subsection 11AF(7) 12 Omit "(4), (4A), (5), (5A) or (6)", substitute "(4A) or (5A)". 13 19 After subsection 11AF(7) 14 Insert: 15 (7A) The following instruments made under this section are not 16 legislative instruments: 17 (a) a standard referred to in paragraph (1)(d); 18 (b) an instrument varying or revoking a standard referred to in 19 paragraph (1)(d). 20 (7B) Otherwise, an instrument made under this section is a legislative 21 instrument. 22 20 Paragraph 11CG(1)(b) 23 Omit "23; and", substitute "23.". 24 21 Paragraph 11CG(1)(c) 25 Repeal the paragraph. 26 22 Paragraph 11CG(2)(b) 27 Omit "direction; and", substitute "direction.". 28 23 Paragraph 11CG(2)(c) 29 Repeal the paragraph. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Omit "(1); and", substitute "(1).". 3 25 Paragraph 11E(2)(c) 4 Repeal the paragraph. 5 26 Paragraph 13(3)(b) 6 Omit "situation; and", substitute "situation.". 7 27 Paragraph 13(3)(c) 8 Repeal the paragraph. 9 28 Paragraph 13A(4)(b) 10 Omit "value; and", substitute "value.". 11 29 Paragraph 13A(4)(c) 12 Repeal the paragraph. 13 30 Subsection 13B(1A) 14 Repeal the subsection (but not the penalty or notes), substitute: 15 (1A) An ADI commits an offence if: 16 (a) the ADI does not give the investigator access to its books, 17 accounts and documents; or 18 (b) the ADI fails to comply with a requirement made under 19 subsection (1) for the provision of information or facilities. 20 31 Paragraph 14A(2A)(c) 21 Omit "requirement; and", substitute "requirement.". 22 32 Paragraph 14A(2A)(d) 23 Repeal the paragraph. 24 33 Paragraph 16B(1A)(b) 25 Omit "requirement; and", substitute "requirement.". 26 34 Paragraph 16B(1A)(c) 27 Repeal the paragraph. [Page Break] 2 Repeal the subsections. 3 36 Section 18 4 Repeal the section, substitute: 5 18 Referring matters to professional associations for auditors 6 (1) If APRA is of the opinion that an auditor of a relevant body 7 corporate (see subsection (2)): 8 (a) has failed, whether within or outside Australia, to perform 9 adequately and properly his or her duties or functions as an 10 auditor under: 11 (i) this Act, the regulations or the prudential standards; or 12 (ii) any other law of the Commonwealth, a State or a 13 Territory; or 14 (b) is otherwise not a fit and proper person to be the auditor of a 15 relevant body corporate; 16 APRA may refer the details of the matter to either or both of the 17 following: 18 (c) the Companies Auditors and Liquidators Disciplinary Board 19 established by Division 1 of Part 11 of the Australian 20 Securities and Investments Commission Act 2001; 21 (d) those members of the professional association of the auditor 22 whom APRA believes will be involved in considering or 23 taking any disciplinary or other action concerning the matter 24 against the auditor. 25 (2) For the purposes of this section, each of the following is a relevant 26 body corporate: 27 (a) an ADI; 28 (b) an authorised NOHC; 29 (c) a subsidiary of an ADI or authorised NOHC; 30 (d) if an ADI is a subsidiary of a foreign corporation (whether or 31 not the ADI is itself a foreign corporation)--a subsidiary of 32 that foreign corporation that is incorporated in, or carries on 33 business in, Australia. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 also give written notice of the referral (including the nature of the 3 matter) to the auditor. 4 37 After Division 2B of Part II 5 Insert: 6 Division 2C--Enforceable undertakings 7 18A Enforceable undertakings 8 (1) APRA may accept a written undertaking given by a person in 9 connection with a matter in relation to which APRA has a power or 10 function under this Act. 11 (2) The person may, with APRA's consent, vary or withdraw the 12 undertaking. 13 (3) If APRA considers that a person who has given an undertaking has 14 breached any of the terms of the undertaking, APRA may apply to 15 the Federal Court of Australia for an order under subsection (4). 16 (4) If the Federal Court is satisfied that a person who has given an 17 undertaking has breached any of the terms of the undertaking, the 18 Court may make any or all of the following orders: 19 (a) an order directing the person to comply with the undertaking; 20 (b) an order directing the person to pay to the Commonwealth an 21 amount up to the amount of any financial benefit that the 22 person obtained (whether directly or indirectly) and that is 23 reasonably attributable to the breach; 24 (c) any order that the Court considers appropriate directing the 25 person to compensate any other person who has suffered loss 26 or damage as a result of the breach; 27 (d) any other order that the Court considers appropriate. 28 38 Subparagraph 33(4)(b)(ii) 29 Omit "specified; and", substitute "specified.". 30 39 Paragraph 33(4)(c) 31 Repeal the paragraph. [Page Break] 2 Omit "policy; and", substitute "policy.". 3 41 Paragraph 36(1A)(c) 4 Repeal the paragraph. 5 42 Paragraph 36(2A)(b) 6 Omit "directions; and", substitute "directions.". 7 43 Paragraphs 36(2A)(c), 41(2)(b), 42(1A)(b), 42(3)(b), 8 45(1A)(b), 45(4)(b) and 46(2)(b) 9 Repeal the paragraphs. 10 44 After Part VI 11 Insert: 12 Part VIA--Protections in relation to information 13 Division 1--Protection for whistleblowers 14 52A Disclosures qualifying for whistleblower protection 15 (1) This section applies to a disclosure of information made by a 16 person (the discloser) who is, in relation to a body corporate that is 17 an ADI, an authorised NOHC or a subsidiary of an ADI or 18 authorised NOHC, any of the following: 19 (a) an officer of the body corporate; 20 (b) an employee of the body corporate; 21 (c) a person who has a contract for the supply of services or 22 goods to the body corporate; 23 (d) an employee of a person who has a contract for the supply of 24 services or goods to the body corporate. 25 (2) The disclosure of the information by the discloser qualifies for 26 protection under this Division if: 27 (a) the disclosure is made to any of the following: 28 (i) APRA; 29 (ii) the auditor, or a member of an audit team conducting an 30 audit, of the body corporate or a related body corporate; B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 related body corporate; 3 (iv) a person authorised by the body corporate to receive 4 disclosures of the kind made; and 5 (b) the discloser informs the person to whom the disclosure is 6 made of the discloser's name before making the disclosure; 7 and 8 (c) both: 9 (i) the information concerns misconduct, or an improper 10 state of affairs or circumstances, in relation to the body 11 corporate; and 12 (ii) the discloser considers that the information may assist a 13 person referred to in paragraph (a) to perform the 14 person's functions or duties in relation to the body 15 corporate or a related body corporate; and 16 (d) the discloser makes the disclosure in good faith. 17 (3) For the purposes of this section, a body corporate is a related body 18 corporate of another body corporate if: 19 (a) in the case of an ADI--the other body corporate is the 20 authorised NOHC of the ADI or a subsidiary of the ADI or 21 authorised NOHC; or 22 (b) in the case of an authorised NOHC of an ADI--the other 23 body corporate is the ADI or a subsidiary of the ADI or 24 authorised NOHC; or 25 (c) in the case of a subsidiary of an ADI or authorised NOHC-- 26 the other body corporate is the ADI, the authorised NOHC or 27 another subsidiary of the ADI or authorised NOHC. 28 (4) In this section, officer has the same meaning as it has in the 29 Corporations Act 2001. 30 52B Whistleblower protection for disclosures that qualify 31 (1) If a person makes a disclosure that qualifies for protection under 32 this Division: 33 (a) the person is not subject to any civil or criminal liability for 34 making the disclosure; and 35 (b) no contractual or other remedy may be enforced, and no 36 contractual or other right may be exercised, against the 37 person on the basis of the disclosure. [Page Break] 2 (a) the person has qualified privilege in respect of the disclosure; 3 and 4 (b) a contract to which the person is a party must not be 5 terminated on the basis that the disclosure constitutes a 6 breach of the contract. 7 (3) Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied 8 that: 9 (a) a person (the employee) is employed in a particular position 10 under a contract of employment with another person (the 11 employer); and 12 (b) the employee makes a disclosure that qualifies for protection 13 under this Division; and 14 (c) the employer purports to terminate the contract of 15 employment on the basis of the disclosure; 16 the court may order that the employee be reinstated in that position 17 or a position at a comparable level. 18 (4) If an individual makes a disclosure of information that qualifies for 19 protection under this Division, the information is not admissible in 20 evidence against the individual in criminal proceedings or in 21 proceedings for the imposition of a penalty, other than proceedings 22 in respect of the falsity of the information. 23 52C Victimisation of whistleblowers prohibited 24 Actually causing detriment to another person 25 (1) A person commits an offence if: 26 (a) the person engages in conduct; and 27 (b) the person's conduct causes any detriment to another person; 28 and 29 (c) the person intends that his or her conduct cause detriment to 30 the other person; and 31 (d) the person engages in his or her conduct because the other 32 person made a disclosure that qualifies for protection under 33 this Division. 34 Penalty: 25 penalty units or imprisonment for 6 months, or both. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (2) A person (the first person) commits an offence if: 3 (a) the first person makes a threat to another person (the second 4 person) to cause any detriment to the second person or to a 5 third person; and 6 (b) the first person: 7 (i) intends the second person to fear that the threat will be 8 carried out; or 9 (ii) is reckless as to causing the second person to fear that 10 the threat will be carried out; and 11 (c) the first person makes the threat because a person: 12 (i) made a disclosure that qualifies for protection under this 13 Division; or 14 (ii) may make a disclosure that would qualify for protection 15 under this Division. 16 Penalty: 25 penalty units or imprisonment for 6 months, or both. 17 Threats 18 (3) For the purposes of subsection (2), a threat may be: 19 (a) express or implied; or 20 (b) conditional or unconditional. 21 (4) In a prosecution for an offence under subsection (2), it is not 22 necessary to prove that the person threatened actually feared that 23 the threat would be carried out. 24 Definition 25 (5) In this section: 26 engage in conduct means: 27 (a) do an act; or 28 (b) omit to do an act. 29 52D Right to compensation 30 If: 31 (a) a person: 32 (i) commits an offence under subsection 52C(1) or (2); or [Page Break] 2 in relation to subsection 52C(1) or (2); and 3 (b) another person suffers damage because of the conduct 4 constituting the offence or because of the contravention; 5 the person is liable to compensate the other person for the damage. 6 52E Confidentiality requirement for company, company officers and 7 employees and auditors 8 (1) A person (the offender) commits an offence under this subsection 9 if: 10 (a) a person (the discloser) makes a disclosure of information 11 that qualifies for protection under this Division; and 12 (b) the disclosure is made to: 13 (i) the auditor of, or a member of an audit team conducting 14 an audit of, the body corporate or a related body 15 corporate within the meaning of subsection 52A(3); or 16 (ii) a director or senior manager of the body corporate or a 17 related body corporate within the meaning of subsection 18 52A(3); or 19 (iii) a person authorised by the body corporate to receive 20 disclosures of that kind; and 21 (c) the offender is: 22 (i) the auditor, or a member of an audit team conducting an 23 audit, of the body corporate or a related body corporate; 24 or 25 (ii) a director or senior manager of the body corporate or a 26 related body corporate; or 27 (iii) a person authorised by the body corporate to receive 28 disclosures of that kind; or 29 (iv) the body corporate or a related body corporate; or 30 (v) an officer or employee of the body corporate or a related 31 body corporate; and 32 (d) the offender discloses any of the following information (the 33 confidential information): 34 (i) the information referred to in paragraph (a); 35 (ii) the identity of the discloser; 36 (iii) information that is likely to lead to the identification of 37 the discloser; and B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 obtained directly or indirectly because of the disclosure 3 referred to in paragraph (a); and 4 (f) either: 5 (i) the offender is the person to whom the disclosure 6 referred to in paragraph (a) is made; or 7 (ii) the offender is a person to whom the confidential 8 information is disclosed in contravention of this section 9 and the offender knows that the disclosure of the 10 confidential information to the offender was unlawful or 11 made in breach of confidence; and 12 (g) the disclosure referred to in paragraph (d) is not authorised 13 under subsection (2). 14 Penalty: 25 penalty units. 15 (2) The disclosure referred to in paragraph (1)(d) is authorised under 16 this subsection if: 17 (a) it is made to APRA; or 18 (b) it is made to a member of the Australian Federal Police 19 (within the meaning of the Australian Federal Police Act 20 1979); or 21 (c) it is made to someone else with the consent of the discloser. 22 (3) In this section, officer has the same meaning as it has in the 23 Corporations Act 2001. 24 Division 2--Self-incrimination 25 52F Self-incrimination 26 (1) A person is not excused from complying with a requirement under 27 this Act or the Financial Sector (Collection of Data) Act 2001 to 28 give information to APRA on the ground that doing so would tend 29 to incriminate the person or make the person liable to a penalty. 30 (2) However, if the person is an individual, the information given by 31 the individual in compliance with the requirement is not admissible 32 in evidence against the individual in criminal proceedings or in 33 proceedings for the imposition of a penalty, other than proceedings 34 in respect of the falsity of the information, if: [Page Break] 2 giving the information might tend to incriminate the 3 individual or make the individual liable to a penalty; and 4 (b) giving the information might in fact tend to incriminate the 5 individual or make the individual liable to a penalty. 6 45 Subparagraph 61(3)(b)(ii) 7 Omit "facilities; and", substitute "facilities.". 8 46 Paragraph 61(3)(c) 9 Repeal the paragraph. 10 47 Subsection 61(4) 11 Repeal the subsection. 12 48 Paragraph 62(1A)(b) 13 Omit "requirement; and", substitute "requirement.". 14 49 Paragraph 62(1A)(c) 15 Repeal the paragraph. 16 50 Subsections 62(3) and (4) 17 Repeal the subsections. 18 51 Paragraphs 66(1)(e) and (3)(c), 66A(1)(c), 67(1)(d) and (3)(c) 19 and 69(3AA)(b), (5A)(b) and (7A)(b) 20 Omit "order in force under section 11 determining", substitute 21 "determination in force under section 11". 22 Corporations Act 2001 23 52 Before subsection 1274(3) 24 Insert: 25 (2D) For the purposes of subsections (2) and (5), each of the following is 26 taken to be a document lodged with ASIC if a copy has been given 27 to ASIC by APRA: 28 (a) benefit fund rules that have been approved by APRA under 29 section 16L of the Life Insurance Act 1995; B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 by APRA under section 16Q of the Life Insurance Act 1995; 3 (c) consequential amendments of a company's constitution that 4 have been approved by APRA under section 16U or 16V of 5 the Life Insurance Act 1995. 6 Insurance Act 1973 7 53 Subsection 7(1) 8 Repeal the subsection, substitute: 9 (1) APRA may, in writing, determine that any or all of the following 10 provisions of this Act do not apply to a person while the 11 determination is in force: 12 (a) a provision of Part III; 13 (b) section 35; 14 (c) section 39; 15 (d) section 41; 16 (e) a provision of Division 3 or 4 of Part IV; 17 (f) section 49Q; 18 (g) section 117; 19 (h) section 118; 20 (i) section 120; 21 (j) section 121. 22 54 After subsection 7(2) 23 Insert: 24 (2A) If APRA makes a determination that applies to a particular person, 25 APRA must also give the person written notice of the 26 determination. 27 55 Subsections 7(3) and (4) 28 Repeal the subsections, substitute: 29 (3) APRA may, in writing, vary or revoke a determination under this 30 section. 31 (4) The following instruments made under this section are not 32 legislative instruments: [Page Break] 2 (b) an instrument varying or revoking a determination that 3 applies to a particular person. 4 (5) Otherwise, an instrument made under this section is a legislative 5 instrument. 6 56 At the end of subsection 32(1) 7 Add: 8 ; or (e) one or more specified general insurers, authorised NOHCs or 9 subsidiaries of general insurers or authorised NOHCs. 10 57 Paragraph 32(3D)(b) 11 Omit "NOHCs;", substitute "NOHCs.". 12 58 Paragraph 32(3D)(c) 13 Repeal the paragraph. 14 59 Subsections 32(4), (4A) and (5) 15 Repeal the subsections, substitute: 16 (4) APRA may, in writing, vary or revoke a standard. However, APRA 17 must not, under this subsection, vary or revoke a standard in a way 18 described in subsection (3A). 19 (4A) A standard referred to in paragraph (1)(e), or an instrument varying 20 or revoking such a standard, has effect: 21 (a) from the day on which the standard, variation or revocation is 22 made; or 23 (b) if the standard, variation or revocation specifies a later day-- 24 from that later day. 25 (5) The following instruments made under this section are not 26 legislative instruments: 27 (a) a standard referred to in paragraph (1)(e); 28 (b) an instrument varying or revoking a standard referred to in 29 paragraph (1)(e); 30 (c) a modification of a standard under subsection (3A); 31 (d) an instrument varying or revoking a modification under 32 subsection (3A). B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 instrument. 3 60 Subsection 32(6) 4 Omit "section 49A", substitute "section 14 of the Legislative 5 Instruments Act 2003 and section 46AA". 6 61 Section 33 7 Repeal the section. 8 62 At the end of Part IIIA 9 Add: 10 Division 4--Protections in relation to information 11 Subdivision A--Protection for whistleblowers 12 38A Disclosures qualifying for whistleblower protection 13 (1) This section applies to a disclosure of information made by a 14 person (the discloser) who is, in relation to a body corporate that is 15 a general insurer, an authorised NOHC or a subsidiary of a general 16 insurer or authorised NOHC, any of the following: 17 (a) an officer of the body corporate; 18 (b) an employee of the body corporate; 19 (c) a person who has a contract for the supply of services or 20 goods to the body corporate; 21 (d) an employee of a person who has a contract for the supply of 22 services or goods to the body corporate. 23 (2) The disclosure of information by the discloser qualifies for 24 protection under this Subdivision if: 25 (a) the disclosure is made to any of the following: 26 (i) APRA; 27 (ii) the auditor, or a member of an audit team conducting an 28 audit, of the body corporate or a related body corporate; 29 (iii) the actuary of the body corporate or a related body 30 corporate; 31 (iv) a director or senior manager of the body corporate or a 32 related body corporate; [Page Break] 2 disclosures of the kind made; and 3 (b) the discloser informs the person to whom the disclosure is 4 made of the discloser's name before making the disclosure; 5 and 6 (c) both: 7 (i) the information concerns misconduct, or an improper 8 state of affairs or circumstances, in relation to the body 9 corporate or a related body corporate; and 10 (ii) the discloser considers that the information may assist a 11 person referred to in paragraph (a) to perform the 12 person's functions or duties in relation to the body 13 corporate or a related body corporate; and 14 (d) the discloser makes the disclosure in good faith. 15 (3) For the purposes of this section, a body corporate is a related body 16 corporate of another body corporate if: 17 (a) in the case of a general insurer--the other body corporate is 18 the authorised NOHC of the general insurer or a subsidiary of 19 the general insurer or authorised NOHC; or 20 (b) in the case of an authorised NOHC of a general insurer--the 21 other body corporate is the general insurer or a subsidiary of 22 the general insurer or authorised NOHC; or 23 (c) in the case of a subsidiary of a general insurer or authorised 24 NOHC--the other body corporate is the general insurer, the 25 authorised NOHC or another subsidiary of the general insurer 26 or authorised NOHC. 27 (4) In this section, officer has the same meaning as it has in the 28 Corporations Act 2001. 29 38B Whistleblower protection for disclosures that qualify 30 (1) If a person makes a disclosure that qualifies for protection under 31 this Subdivision: 32 (a) the person is not subject to any civil or criminal liability for 33 making the disclosure; and 34 (b) no contractual or other remedy may be enforced, and no 35 contractual or other right may be exercised, against the 36 person on the basis of the disclosure. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (a) the person has qualified privilege in respect of the disclosure; 3 and 4 (b) a contract to which the person is a party must not be 5 terminated on the basis that the disclosure constitutes a 6 breach of the contract. 7 (3) Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied 8 that: 9 (a) a person (the employee) is employed in a particular position 10 under a contract of employment with another person (the 11 employer); and 12 (b) the employee makes a disclosure that qualifies for protection 13 under this Subdivision; and 14 (c) the employer purports to terminate the contract of 15 employment on the basis of the disclosure; 16 the court may order that the employee be reinstated in that position 17 or a position at a comparable level. 18 (4) If an individual makes a disclosure of information that qualifies for 19 protection under this Subdivision, the information is not admissible 20 in evidence against the individual in criminal proceedings or in 21 proceedings for the imposition of a penalty, other than proceedings 22 in respect of the falsity of the information. 23 38C Victimisation of whistleblowers prohibited 24 Actually causing detriment to another person 25 (1) A person commits an offence if: 26 (a) the person engages in conduct; and 27 (b) the person's conduct causes any detriment to another person; 28 and 29 (c) the person intends that his or her conduct cause detriment to 30 the other person; and 31 (d) the person engages in his or her conduct because the other 32 person made a disclosure that qualifies for protection under 33 this Subdivision. 34 Penalty: 25 penalty units or imprisonment for 6 months, or both. [Page Break] 2 (2) A person (the first person) commits an offence if: 3 (a) the first person makes a threat to another person (the second 4 person) to cause any detriment to the second person or to a 5 third person; and 6 (b) the first person: 7 (i) intends the second person to fear that the threat will be 8 carried out; or 9 (ii) is reckless as to causing the second person to fear that 10 the threat will be carried out; and 11 (c) the first person makes the threat because a person: 12 (i) made a disclosure that qualifies for protection under this 13 Subdivision; or 14 (ii) may make a disclosure that would qualify for protection 15 under this Subdivision. 16 Penalty: 25 penalty units or imprisonment for 6 months, or both. 17 Threats 18 (3) For the purposes of subsection (2), a threat may be: 19 (a) express or implied; or 20 (b) conditional or unconditional. 21 (4) In a prosecution for an offence under subsection (2), it is not 22 necessary to prove that the person threatened actually feared that 23 the threat would be carried out. 24 Definition 25 (5) In this section: 26 engage in conduct means: 27 (a) do an act; or 28 (b) omit to do an act. 29 38D Right to compensation 30 If: 31 (a) a person: 32 (i) commits an offence under subsection 38C(1) or (2); or B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 in relation to subsection 38C(1) or (2); and 3 (b) another person suffers damage because of the conduct 4 constituting the offence or because of the contravention; 5 the person is liable to compensate the other person for the damage. 6 38E Confidentiality requirement for company, company officers and 7 employees and auditors 8 (1) A person (the offender) commits an offence under this subsection 9 if: 10 (a) a person (the discloser) makes a disclosure of information 11 that qualifies for protection under this Subdivision; and 12 (b) the disclosure is made to: 13 (i) the auditor, or a member of an audit team conducting an 14 audit, of the body corporate or a related body corporate 15 in within the meaning of subsection 38A(3); or 16 (ii) a director or senior manager of the body corporate or a 17 related body corporate; or 18 (iii) a person authorised by the body corporate to receive 19 disclosures of that kind; and 20 (c) the offender is: 21 (i) the auditor, or a member of an audit team conducting an 22 audit, of the body corporate or a related body corporate; 23 or 24 (ii) a director or senior manager of the body corporate or a 25 related body corporate; or 26 (iii) a person authorised by the body corporate to receive 27 disclosures of that kind; or 28 (iv) the body corporate or a related body corporate; or 29 (v) an officer or employee of the body corporate or a related 30 body corporate; and 31 (d) the offender discloses any of the following information (the 32 confidential information): 33 (i) the information referred to in paragraph (a); 34 (ii) the identity of the discloser; 35 (iii) information that is likely to lead to the identification of 36 the discloser; and [Page Break] 2 obtained directly or indirectly because of the disclosure 3 referred to in paragraph (a); and 4 (f) either: 5 (i) the offender is the person to whom the disclosure 6 referred to in paragraph (a) is made; or 7 (ii) the offender is a person to whom the confidential 8 information is disclosed in contravention of this section 9 and the offender knows that the disclosure of the 10 confidential information to the offender was unlawful or 11 made in breach of confidence; and 12 (g) the disclosure referred to in paragraph (d) is not authorised 13 under subsection (2). 14 Penalty: 25 penalty units. 15 (2) The disclosure referred to in paragraph (1)(d) is authorised under 16 this subsection if: 17 (a) it is made to APRA; or 18 (b) it is made to a member of the Australian Federal Police 19 (within the meaning of the Australian Federal Police Act 20 1979); or 21 (c) it is made to someone else with the consent of the discloser. 22 (3) In this section, officer has the same meaning as it has in the 23 Corporations Act 2001. 24 Subdivision B--Self-incrimination 25 38F Self-incrimination 26 (1) A person is not excused from complying with a requirement under 27 this Act, the prudential standards or the Financial Sector 28 (Collection of Data) Act 2001 to give information to APRA on the 29 ground that doing so would tend to incriminate the person or make 30 the person liable to a penalty. 31 (2) However, if the person is an individual, the information given by 32 the individual in compliance with the requirement is not admissible 33 in evidence against the individual in criminal proceedings or in 34 proceedings for the imposition of a penalty, other than proceedings 35 in respect of the falsity of the information, if: B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 giving the information might tend to incriminate the 3 individual or make the individual liable to a penalty; and 4 (b) giving the information might in fact tend to incriminate the 5 individual or make the individual liable to a penalty. 6 63 Subsection 39(1) (note) 7 Repeal the note. 8 64 Sections 47 and 48 9 Repeal the sections, substitute: 10 48 Referring matters to professional associations for auditors and 11 actuaries 12 (1) If APRA is of the opinion that an auditor of a general insurer: 13 (a) has failed, whether within or outside Australia, to perform 14 adequately and properly his or her duties or functions as an 15 auditor under: 16 (i) this Act, the regulations or the prudential standards; or 17 (ii) any other law of the Commonwealth, a State or a 18 Territory; or 19 (b) is otherwise not a fit and proper person to be the auditor of a 20 general insurer; 21 APRA may refer the details of the matter to either or both of the 22 following: 23 (c) the Companies Auditors and Liquidators Disciplinary Board 24 established by Division 1 of Part 11 of the Australian 25 Securities and Investments Commission Act 2001; 26 (d) those members of the professional association of the auditor 27 whom APRA believes will be involved in considering or 28 taking any disciplinary or other action concerning the matter 29 against the auditor. 30 (2) If APRA is of the opinion that an actuary of a general insurer: 31 (a) has failed, whether within or outside Australia, to perform 32 adequately and properly his or her duties as an actuary under: 33 (i) this Act, the regulations or the prudential standards; or 34 (ii) any other law of the Commonwealth, a State or a 35 Territory; or [Page Break] 2 general insurer; 3 APRA may refer the details of the matter to those members of the 4 professional association of the actuary whom APRA believes will 5 be involved in considering or taking any disciplinary or other 6 action concerning the matter against the actuary. 7 (3) If APRA refers details of a matter under this section, APRA must 8 also give written notice of the referral (including the nature of the 9 matter) to the auditor or actuary. 10 (4) APRA's powers under subsection (1) and (2) may be exercised 11 whether or not APRA has disqualified the person under section 44. 12 65 Subsection 49A(2) 13 Omit "unless there is a determination in force under subsection 7(1) that 14 this subsection does not apply to the person". 15 66 Subsection 70(5) 16 Repeal the subsection. 17 Life Insurance Act 1995 18 67 After section 7 19 Insert: 20 7A Determination that certain provisions do not apply 21 (1) APRA may, in writing, determine that any or all of the following 22 provisions of this Act do not apply to a person while the 23 determination is in force: 24 (a) a provision of Part 2, 2A, 2B or 3; 25 (b) a provision of Division 1, 3, 4, 5 or 6 of Part 4; 26 (c) section 75; 27 (d) section 76; 28 (e) section 78; 29 (f) section 79; 30 (g) section 80; 31 (h) section 81. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (a) may be expressed to apply to a particular person or to a class 3 of persons; and 4 (b) may specify the period during which the determination is in 5 force; and 6 (c) may be made subject to specified conditions. 7 (3) If APRA makes a determination that applies to a particular person, 8 APRA must also give the person written notice of the 9 determination. 10 (4) APRA may, in writing, vary or revoke a determination under this 11 section. 12 (5) The following instruments made under this section are not 13 legislative instruments: 14 (a) a determination that applies to a particular person; 15 (b) an instrument varying or revoking a determination that 16 applies to a particular person. 17 (6) Otherwise, an instrument made under this section is a legislative 18 instrument. 19 7B Breach of condition of a determination under section 7A 20 (1) A person commits an offence if: 21 (a) a determination under section 7A applies to a person; and 22 (b) the person does or fails to do an act; and 23 (c) doing or failing to do the act results in a breach of a condition 24 to which the determination is subject. 25 Penalty: 60 penalty units. 26 (2) Strict liability applies to subsection (1). 27 Note: For strict liability, see section 6.1 of the Criminal Code. 28 68 At the end of subsections 12A(2) and 12B(3) 29 Add "or in the prudential standards". 30 69 Subsection 15(3) 31 After "Prudential Rules", insert "or the prudential standards". [Page Break] 2 Omit "to which section 125A or 125B applies has been modified, an 3 exemption order", substitute "referred to in subsection 7A(1) has been 4 modified, a determination". 5 71 Paragraph 16B(2)(a) 6 After "Prudential Rules", insert "or in the prudential standards". 7 72 At the end of subsection 16H(4) 8 Add "or the prudential standards". 9 73 Paragraph 16H(4A)(b) 10 After "Prudential Rules", insert "or the prudential standards". 11 74 Section 16J 12 Omit "Rules", substitute "Rules or the prudential standards". 13 75 At the end of subsection 16L(2) 14 Add "or the prudential standards". 15 76 Paragraph 16L(4)(b) 16 After "Prudential Rules", insert "or the prudential standards". 17 77 Section 16M 18 Repeal the section. 19 78 Paragraph 16N(a) 20 Omit "a copy of the rules is lodged with ASIC", substitute "APRA 21 approved the rules". 22 79 At the end of subsection 16Q(2) 23 Add "or the prudential standards". 24 80 Paragraph 16Q(4)(b) 25 After "Prudential Rules", insert "or the prudential standards". 26 81 Paragraph 16R(6)(b) 27 After "Prudential Rules", insert "or the prudential standards". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Repeal the section. 3 83 Paragraph 16T(c) 4 Omit "a copy of the amendment is lodged with ASIC", substitute 5 "APRA approved or determined the amendment". 6 84 At the end of subsection 16U(2) 7 Add "or the prudential standards". 8 85 Paragraph 16U(4)(b) 9 After "Prudential Rules", insert "or the prudential standards". 10 86 At the end of subsection 16V(3) 11 Add "or the prudential standards". 12 87 Paragraph 16V(7)(b) 13 After "Prudential Rules", insert "or the prudential standards". 14 88 Section 16W 15 Repeal the section. 16 89 Paragraph 16X(c) 17 Omit "a copy of the amendments is lodged with ASIC", substitute 18 "APRA approved or determined the amendments". 19 90 Section 20 20 Repeal the section, substitute: 21 20 Application for registration 22 (1) A company may apply in writing to APRA for registration under 23 this Act. 24 (2) The application must: 25 (a) be in the form (if any) approved by APRA; and 26 (b) be accompanied by any information requested by APRA; and 27 (c) nominate for the purposes of this Act: [Page Break] 2 the life company; and 3 (ii) the period that is to be the financial year of the life 4 company. 5 (3) For the purposes of determining an application, APRA may by 6 written notice require an applicant to provide information specified 7 in the notice, before the end of the period specified in the notice. 8 (4) If the applicant does not provide the specified information before 9 the end of the specified period or any longer period agreed to in 10 writing by APRA, the application is taken to be withdrawn. 11 (5) A notice under subsection (3) must include a statement about the 12 effect of subsection (4). 13 91 Subsections 21(1) and (2) 14 Repeal the subsections, substitute: 15 (1) APRA must, in writing, register a company that applies for 16 registration under section 20, unless: 17 (a) APRA is satisfied that a ground for refusal specified in 18 subsection (3) exists; and 19 (b) the Treasurer approves of the refusal. 20 92 Subsections 21(5), (6) and (7) 21 Repeal the subsections. 22 93 Sections 25 and 28 23 Repeal the sections. 24 94 At the end of subsection 34(4) 25 Add "or the prudential standards". 26 95 Subsection 39(2) 27 Omit "and section 259". 28 96 Subsection 40(3) 29 Omit "The Commissioner", substitute "APRA". 30 97 Subsection 44(6) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 the Financial Sector (Collection of Data) Act 2001". 3 98 Paragraphs 44(7)(a) and (b) 4 After "Prudential Rules", insert "or by reporting standards made under 5 the Financial Sector (Collection of Data) Act 2001". 6 99 Subsections 52(1) and (3) 7 After "Prudential Rules", insert "or the prudential standards". 8 100 Subsection 53(1) 9 After "Prudential Rules", insert "or the prudential standards". 10 101 Subsection 53(2) 11 After "Prudential Rules", insert "or the prudential standards". 12 102 At the end of subsection 55(2) 13 Add "or the prudential standards". 14 103 At the end of subsection 55(3) 15 Add "or the prudential standards". 16 104 Subsection 61(1) (definition of starting amount) 17 After "Prudential Rules", insert "or prudential standards". 18 105 Paragraph 62(3)(c) 19 After "Prudential Rules", insert "or prudential standards". 20 106 Subsection 62(5) 21 After "Prudential Rules", insert "or the prudential standards". 22 107 Subsection 77(2) 23 Omit "under subsection 20(4)", substitute "for the purposes of 24 section 20". 25 108 After section 88 26 Insert: [Page Break] 2 (1) A person who is or was an auditor of a life company may give 3 information, or produce books, accounts or documents, about the 4 life company to APRA if the person considers that doing so will 5 assist APRA in performing its functions under this Act or under the 6 Financial Sector (Collection of Data) Act 2001. 7 (2) A person who, in good faith and without negligence, gives 8 information to APRA in accordance with this section is not subject 9 to any action, claim or demand by, or any liability to, any other 10 person in respect of the information. 11 109 After section 98 12 Insert: 13 98A Appointed actuary may give information to APRA 14 (1) A person who is or was the appointed actuary of a life company 15 may give information, or produce books, accounts or documents, 16 about the life company to APRA if the person considers that doing 17 so will assist APRA in performing its functions under this Act or 18 under the Financial Sector (Collection of Data) Act 2001. 19 (2) A person who, in good faith and without negligence, gives 20 information to APRA in accordance with this section is not subject 21 to any action, claim or demand by, or any liability to, any other 22 person in respect of the information. 23 110 Divisions 7 and 8 of Part 6 24 Repeal the Divisions, substitute: 25 Division 8--Miscellaneous 26 125 Referring matters to professional associations for auditors and 27 actuaries 28 (1) If APRA is of the opinion that an auditor of a life company: 29 (a) has failed, whether within or outside Australia, to perform 30 adequately and properly his or her duties as an auditor under: 31 (i) this Act; or B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Territory; or 3 (b) is otherwise not a fit and proper person to be the auditor of a 4 life company; 5 APRA may refer the details of the matter to either or both of the 6 following: 7 (c) the Companies Auditors and Liquidators Disciplinary Board 8 established by Division 1 of Part 11 of the Australian 9 Securities and Investments Commission Act 2001; 10 (d) those members of the professional association of the auditor 11 whom APRA believes will be involved in considering or 12 taking any disciplinary or other action concerning the matter 13 against the auditor. 14 (2) If APRA is of the opinion that an appointed actuary of a life 15 company: 16 (a) has failed, whether within or outside Australia, to perform 17 adequately and properly his or her duties as an actuary under: 18 (i) this Act; or 19 (ii) any other law of the Commonwealth, a State or a 20 Territory; or 21 (b) is otherwise not a fit and proper person to be the actuary of a 22 life company; 23 APRA may refer the details of the matter to those members of the 24 professional association of the actuary whom APRA believes will 25 be involved in considering or taking any disciplinary or other 26 action concerning the matter against the actuary. 27 (3) If APRA refers details of a matter under this section, APRA must 28 also give written notice of the referral (including the nature of the 29 matter) to the auditor or actuary. 30 111 At the end of Division 2 of Part 7 31 Add: 32 133A Enforceable undertakings 33 (1) APRA may accept a written undertaking given by a person in 34 connection with a matter in relation to which APRA has a power or 35 function under this Act. [Page Break] 2 undertaking. 3 (3) If APRA considers that a person who has given an undertaking has 4 breached any of the terms of the undertaking, APRA may apply to 5 the Court for an order under subsection (4). 6 (4) If the Court is satisfied that a person who has given an undertaking 7 has breached any of the terms of the undertaking, the Court may 8 make any or all of the following orders: 9 (a) an order directing the person to comply with the undertaking; 10 (b) an order directing the person to pay to the Commonwealth an 11 amount up to the amount of any financial benefit that the 12 person obtained (whether directly or indirectly) and that is 13 reasonably attributable to the breach; 14 (c) any order that the Court considers appropriate directing the 15 person to compensate any other person who has suffered loss 16 or damage as a result of the breach; 17 (d) any other order that the Court considers appropriate. 18 112 Division 3 of Part 7 (heading) 19 Repeal the heading, substitute: 20 Division 3--Investigation by APRA 21 113 After paragraph 136(c) 22 Insert: 23 (ca) that a term of an undertaking referred to in section 133A that 24 relates to the life company has been breached by a person 25 who is subject to the undertaking; 26 114 Section 148 27 Repeal the section. 28 115 At the end of Part 7 29 Add: B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Subdivision A--Protection for whistleblowers 3 156A Disclosures qualifying for whistleblower protection 4 (1) This section applies to a disclosure of information by a person (the 5 discloser) who is, in relation to a life company, any of the 6 following: 7 (a) an officer of the life company; 8 (b) an employee of the life company; 9 (c) a person who has a contract for the supply of services or 10 goods to the life company; 11 (d) an employee of a person who has a contract for the supply of 12 services or goods to the life company. 13 (2) The disclosure of information by the discloser qualifies for 14 protection under this Subdivision if: 15 (a) the disclosure is made to any of the following: 16 (i) APRA; 17 (ii) the life company's auditor or a member of an audit team 18 conducting an audit of the life company; 19 (iii) the appointed actuary of the life company; 20 (iv) a director or senior manager of the life company; 21 (v) a person authorised by the life company to receive 22 disclosures of the kind made; and 23 (b) the discloser informs the person to whom the disclosure is 24 made of the discloser's name before making the disclosure; 25 and 26 (c) both: 27 (i) the information concerns misconduct, or an improper 28 state of affairs or circumstances, in relation to the life 29 company; and 30 (ii) the discloser considers that the information may assist a 31 person referred to in paragraph (a) to perform the 32 person's functions or duties in relation to the life 33 company; and 34 (d) the discloser makes the disclosure in good faith. [Page Break] 2 Corporations Act 2001. 3 156B Whistleblower protection for disclosures that qualify 4 (1) If a person makes a disclosure that qualifies for protection under 5 this Subdivision: 6 (a) the person is not subject to any civil or criminal liability for 7 making the disclosure; and 8 (b) no contractual or other remedy may be enforced, and no 9 contractual or other right may be exercised, against the 10 person on the basis of the disclosure. 11 (2) Without limiting subsection (1): 12 (a) the person has qualified privilege in respect of the disclosure; 13 and 14 (b) a contract to which the person is a party must not be 15 terminated on the basis that the disclosure constitutes a 16 breach of the contract. 17 (3) Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied 18 that: 19 (a) a person (the employee) is employed in a particular position 20 under a contract of employment with another person (the 21 employer); and 22 (b) the employee makes a disclosure that qualifies for protection 23 under this Subdivision; and 24 (c) the employer purports to terminate the contract of 25 employment on the basis of the disclosure; 26 the court may order that the employee be reinstated in that position 27 or a position at a comparable level. 28 (4) If an individual makes a disclosure of information that qualifies for 29 protection under this Subdivision, the information is not admissible 30 in evidence against the individual in criminal proceedings or in 31 proceedings for the imposition of a penalty, other than proceedings 32 in respect of the falsity of the information. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Actually causing detriment to another person 3 (1) A person commits an offence if: 4 (a) the person engages in conduct; and 5 (b) the person's conduct causes any detriment to another person; 6 and 7 (c) the person intends that his or her conduct cause detriment to 8 the other person; and 9 (d) the person engages in his or her conduct because the other 10 person made a disclosure that qualifies for protection under 11 this Subdivision. 12 Penalty: 25 penalty units or imprisonment for 6 months, or both. 13 Threatening to cause detriment to another person 14 (2) A person (the first person) commits an offence if: 15 (a) the first person makes a threat to another person (the second 16 person) to cause any detriment to the second person or to a 17 third person; and 18 (b) the first person: 19 (i) intends the second person to fear that the threat will be 20 carried out; or 21 (ii) is reckless as to causing the second person to fear that 22 the threat will be carried out; and 23 (c) the first person makes the threat because a person: 24 (i) made a disclosure that qualifies for protection under this 25 Subdivision; or 26 (ii) may make a disclosure that would qualify for protection 27 under this Subdivision. 28 Penalty: 25 penalty units or imprisonment for 6 months, or both. 29 Threats 30 (3) For the purposes of subsection (2), a threat may be: 31 (a) express or implied; or 32 (b) conditional or unconditional. [Page Break] 2 necessary to prove that the person threatened actually feared that 3 the threat would be carried out. 4 Definition 5 (5) In this section: 6 engage in conduct means: 7 (a) do an act; or 8 (b) omit to do an act. 9 156D Right to compensation 10 If: 11 (a) a person: 12 (i) commits an offence under subsection 156C(1) or (2); or 13 (ii) commits an offence under Part 2.4 of the Criminal Code 14 in relation to subsection 156C(1) or (2); and 15 (b) another person suffers damage because of the conduct 16 constituting the offence or because of the contravention; 17 the person is liable to compensate the other person for the damage. 18 156E Confidentiality requirement for company, company officers 19 and employees and auditors 20 (1) A person (the offender) commits an offence under this subsection 21 if: 22 (a) a person (the discloser) makes a disclosure of information 23 that qualifies for protection under this Subdivision; and 24 (b) the disclosure is made to: 25 (i) the life company's auditor or a member of an audit team 26 conducting an audit of the life company; or 27 (ii) a director or senior manager of the life company; or 28 (iii) a person authorised by the life company to receive 29 disclosures of that kind; and 30 (c) the offender is: 31 (i) the life company's auditor or a member of an audit team 32 conducting an audit of the life company; or 33 (ii) a director or senior manager of the life company; or B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 disclosures of that kind; or 3 (iv) the life company; or 4 (v) an officer or employee of the life company; and 5 (d) the offender discloses any of the following information (the 6 confidential information): 7 (i) the information referred to in paragraph (a); 8 (ii) the identity of the discloser; 9 (iii) information that is likely to lead to the identification of 10 the discloser; and 11 (e) the confidential information is information that the offender 12 obtained directly or indirectly because of the disclosure 13 referred to in paragraph (a); and 14 (f) either: 15 (i) the offender is the person to whom the disclosure 16 referred to in paragraph (a) is made; or 17 (ii) the offender is a person to whom the confidential 18 information is disclosed in contravention of this section 19 and the offender knows that the disclosure of the 20 confidential information to the offender was unlawful or 21 made in breach of confidence; and 22 (g) the disclosure referred to in paragraph (d) is not authorised 23 under subsection (2). 24 Penalty: 25 penalty units. 25 (2) The disclosure referred to in paragraph (1)(d) is authorised under 26 this subsection if: 27 (a) it is made to APRA; or 28 (b) it is made to a member of the Australian Federal Police 29 (within the meaning of the Australian Federal Police Act 30 1979); or 31 (c) it is made to someone else with the consent of the discloser. 32 (3) In this section, officer has the same meaning as it has in the 33 Corporations Act 2001. [Page Break] 2 156F Self-incrimination 3 (1) A person is not excused from complying with a requirement under 4 this Act or under the Financial Sector (Collection of Data) Act 5 2001 to give information to APRA on the ground that doing so 6 would tend to incriminate the person or make the person liable to a 7 penalty. 8 (2) However, if the person is an individual, the information given by 9 the individual in compliance with the requirement is not admissible 10 in evidence against the individual in criminal proceedings or in 11 proceedings for the imposition of a penalty, other than proceedings 12 in respect of the falsity of the information, if: 13 (a) before giving the information, the individual claims that 14 giving the information might tend to incriminate the 15 individual or make the individual liable to a penalty; and 16 (b) giving the information might in fact tend to incriminate the 17 individual or make the individual liable to a penalty. 18 116 Subsection 230A(4) 19 Repeal the subsection, substitute: 20 (4) A standard may provide for APRA to exercise powers and 21 discretions under the standard, including (but not limited to) 22 discretions to approve, impose, adjust or exclude specific 23 prudential requirements in relation to one or more specified life 24 companies. 25 117 After subsection 230A(5) 26 Insert: 27 (5A) A standard referred to in paragraph (1)(c), or an instrument varying 28 or revoking such a standard, has effect: 29 (a) from the day on which the standard, variation or revocation is 30 made; or 31 (b) if the standard, variation or revocation specifies a later day-- 32 from that later day. 33 118 Subsections 230A(6), (8) (10) and (11) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 119 Subsection 230A(12) 3 Omit "(6), (7), (8), (9) or (10)", substitute "(7) or (9)". 4 120 After subsection 230A(12) 5 Insert: 6 (12A) The following instruments made under this section are not 7 legislative instruments: 8 (a) a standard referred to in paragraph (1)(c); 9 (b) an instrument varying or revoking a standard referred to in 10 paragraph (1)(c). 11 (12B) Otherwise, an instrument made under this section is a legislative 12 instrument. 13 121 Paragraph 230B(1)(a) 14 Omit "paragraph 125A(4)(a) or 125B(4)(a)", substitute "paragraph 15 7A(2)(c)". 16 122 Subsection 236(1) (before paragraph (a) of the definition 17 of reviewable decision) 18 Insert: 19 (aaa) a decision under section 7A that applies to a particular 20 person; 21 123 Subsection 236(1) (paragraph (e) of the definition of 22 reviewable decision) 23 Omit "direction", substitute "condition". 24 124 Subsection 236(1) (paragraph (f) of the definition of 25 reviewable decision) 26 Omit "direction", substitute "condition". 27 125 Subsection 236(1) (paragraphs (k) and (l) of the definition 28 of reviewable decision) 29 After "Prudential Rules", insert "or prudential standards". [Page Break] 2 reviewable decision) 3 Add: 4 ; (zp) a decision under section 230A to make, vary or revoke a 5 standard referred to in paragraph 230A(1)(c). 6 127 Sections 238 and 239 7 Repeal the sections. 8 128 Subsection 246(1) 9 Omit "under subsection 20(4)", substitute "for the purposes of 10 section 20". 11 129 Subsection 252(1) 12 Omit "in writing", substitute "by legislative instrument". 13 130 Subsection 252(2) 14 Repeal the subsection, substitute: 15 (2) APRA must not make rules under this section on or after the day 16 on which Part 1 of Schedule 1 to the Financial Sector Legislation 17 Amendment (Simplifying Regulation and Review) Act 2007 18 commences (the cut-off day). 19 (3) A rule made under this section that is in force immediately before 20 the cut-off day continues in force until revoked by APRA. 21 (4) APRA may, on or after the cut-off day, vary or revoke a rule 22 continued in force under subsection (3). 23 131 Paragraph 253(1)(a) 24 Omit ", other than matters required or permitted to be prescribed by 25 Prudential Rules or actuarial standards". 26 132 Subsections 254(4) and (6) 27 Repeal the subsections. 28 133 Sections 256 to 263 29 Repeal the sections. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Repeal the definition. 3 135 Schedule 4 Insert: 5 senior manager, of a life company, means a person who has or 6 exercises any of the senior management responsibilities (within the 7 meaning of the prudential standards) for the life company. 8 Superannuation Industry (Supervision) Act 1993 9 136 Section 4 (table item for Part 31) 10 Repeal the item. 11 137 Subsection 6(2) 12 Omit ", 30 and 31", substitute "and 30". 13 138 Subsection 10(1) (paragraph (z) of the definition of 14 reviewable decision) 15 After "exemption", insert "that applies to a particular person or a 16 particular group of individual trustees". 17 139 Subsection 10(1) (paragraph (za) of the definition of 18 reviewable decision) 19 Repeal the paragraph. 20 140 Subsection 10(1) (paragraph (zb) of the definition of 21 reviewable decision) 22 After "declaration", insert "that applies to a particular person or a 23 particular group of individual trustees". 24 141 Subsection 10(1) (paragraph (zc) of the definition of 25 reviewable decision) 26 Repeal the paragraph. 27 142 Subsection 10(1) (paragraph (zd) of the definition of 28 reviewable decision) [Page Break] 2 revoke an exemption or declaration that applies to a particular person or 3 a particular group of individual trustees". 4 143 After section 29JC 5 Insert: 6 29JCA False representation about status as RSE licensee 7 (1) A person commits an offence if: 8 (a) the person makes a representation; and 9 (b) the representation is that the person is, or is a member of a 10 group that is, an RSE licensee; and 11 (c) the representation is false. 12 Penalty: 60 penalty units. 13 (2) Strict liability applies to subsection (1). 14 Note: For strict liability, see section 6.1 of the Criminal Code. 15 144 Section 29JE 16 Repeal the section. 17 145 Section 29QB 18 Repeal the section. 19 146 Subsection 71(2B) 20 Omit "(ba),". 21 147 Subsection 130A(1) 22 Omit "(1)". 23 148 Subsection 130A(2) 24 Repeal the subsection. 25 149 Section 130B 26 Repeal the section. 27 150 Section 327 (definition of modifiable provision) 28 Repeal the definition, substitute: B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (a) a provision of Part 2A, 2B or 3; 3 (b) section 36; 4 (c) section 54; 5 (d) subsection 63(7B), (7C) or (7D); 6 (e) a provision of Part 9; 7 (f) section 113 (except so far as it applies in relation to 8 self-managed superannuation funds); 9 (g) a provision of Part 19 or 24; 10 (h) a provision of any regulations made for the purposes of a 11 provision referred to in paragraphs (a) to (g). 12 151 Section 328 13 Repeal the section, substitute: 14 328 Regulator's powers of exemption--modifiable provisions 15 (1) The Regulator may, in writing, exempt from compliance with any 16 or all of the modifiable provisions: 17 (a) a particular person or a class of persons; or 18 (b) a particular group of individual trustees or a class of groups 19 of individual trustees. 20 (2) An exemption that applies to a particular person or group is not a 21 legislative instrument. 22 (3) Otherwise, an exemption is a legislative instrument. 23 152 Section 332 24 Repeal the section, substitute: 25 332 Regulator's powers of modification--modifiable provisions 26 (1) The Regulator may, in writing, declare that a modifiable provision 27 is to have effect, as if it were modified as specified in the 28 declaration, in relation to: 29 (a) a particular person or class of persons; or 30 (b) a particular group of individual trustees or a class of groups 31 of individual trustees. [Page Break] 2 legislative instrument. 3 (3) Otherwise, a declaration is a legislative instrument. 4 153 Sections 335 and 336 5 Repeal the sections, substitute: 6 335 Variation and revocation of exemptions and modifications 7 The Regulator may, in writing, vary or revoke an exemption or 8 declaration under this Part. 9 336 Notice of exemptions and modifications 10 If the Regulator: 11 (a) makes an exemption or modification under this Part that 12 applies to a particular person or a particular group of 13 individual trustees; or 14 (b) varies or revokes such an exemption or modification; 15 the Regulator must also notify the person or group in writing of the 16 making, variation or revocation. 17 154 After Part 29 18 Insert: 19 Part 29A--Protections in relation to information 20 Division 1--Protection for whistleblowers 21 336A Disclosures qualifying for whistleblower protection 22 (1) This section applies to a disclosure of information by a person (the 23 discloser) who is, in relation to a superannuation entity, any of the 24 following: 25 (a) a trustee of the superannuation entity; 26 (b) an officer of a body corporate that is a trustee, custodian or 27 investment manager of the superannuation entity; 28 (c) an employee of an individual referred to in paragraph (a) or a 29 body corporate referred to in paragraph (b); B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 goods to an individual referred to in paragraph (a) or a body 3 corporate referred to in paragraph (b); 4 (e) an employee of a person referred to in paragraph (d). 5 (2) The disclosure of the information by the discloser qualifies for 6 protection under this Division if: 7 (a) the disclosure is made to any of the following: 8 (i) the Regulator; 9 (ii) the actuary or auditor of the superannuation entity; 10 (iii) an individual who is a trustee of the superannuation 11 entity; 12 (iv) a director of a body corporate that is the trustee of the 13 superannuation entity; 14 (v) a person authorised by the trustee or trustees of the 15 superannuation entity to receive disclosures of that kind; 16 and 17 (b) the discloser informs the person to whom the disclosure is 18 made of the discloser's name before making the disclosure; 19 and 20 (c) both: 21 (i) the information concerns misconduct, or an improper 22 state of affairs or circumstances, in relation to the 23 superannuation entity or a trustee of the entity; and 24 (ii) the discloser considers that the information may assist a 25 person referred to in paragraph (a) to perform the 26 person's functions in relation to the superannuation 27 entity or trustee; and 28 (d) the discloser makes the disclosure in good faith. 29 (3) In this section, officer has the same meaning as it has in the 30 Corporations Act 2001. 31 336B Whistleblower protection for disclosures that qualify 32 (1) If a person makes a disclosure that qualifies for protection under 33 this Division: 34 (a) the person is not subject to any civil or criminal liability for 35 making the disclosure; and [Page Break] 2 contractual or other right may be exercised, against the 3 person on the basis of the disclosure. 4 (2) Without limiting subsection (1): 5 (a) the person has qualified privilege in respect of the disclosure; 6 and 7 (b) a contract to which the person is a party must not be 8 terminated on the basis that the disclosure constitutes a 9 breach of the contract. 10 (3) Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied 11 that: 12 (a) a person (the employee) is employed in a particular position 13 under a contract of employment with another person (the 14 employer); and 15 (b) the employee makes a disclosure that qualifies for protection 16 under this Division; and 17 (c) the employer purports to terminate the contract of 18 employment on the basis of the disclosure; 19 the court may order that the employee be reinstated in that position 20 or a position at a comparable level. 21 (4) If an individual makes a disclosure of information that qualifies for 22 protection under this Division, the information is not admissible in 23 evidence against the individual in criminal proceedings or in 24 proceedings for the imposition of a penalty, other than proceedings 25 in respect of the falsity of the information. 26 336C Victimisation of whistleblowers prohibited 27 Actually causing detriment to another person 28 (1) A person commits an offence if: 29 (a) the person engages in conduct; and 30 (b) the person's conduct causes any detriment to another person; 31 and 32 (c) the person intends that his or her conduct cause detriment to 33 the other person; and B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 person made a disclosure that qualifies for protection under 3 this Division. 4 Penalty: 25 penalty units or imprisonment for 6 months, or both. 5 Threatening to cause detriment to another person 6 (2) A person (the first person) commits an offence if: 7 (a) the first person makes a threat to another person (the second 8 person) to cause any detriment to the second person or to a 9 third person; and 10 (b) the first person: 11 (i) intends the second person to fear that the threat will be 12 carried out; or 13 (ii) is reckless as to causing the second person to fear that 14 the threat will be carried out; and 15 (c) the first person makes the threat because a person: 16 (i) made a disclosure that qualifies for protection under this 17 Division; or 18 (ii) may make a disclosure that would qualify for protection 19 under this Division. 20 Penalty: 25 penalty units or imprisonment for 6 months, or both. 21 Threats 22 (3) For the purposes of subsection (2), a threat may be: 23 (a) express or implied; or 24 (b) conditional or unconditional. 25 (4) In a prosecution for an offence under subsection (2), it is not 26 necessary to prove that the person threatened actually feared that 27 the threat would be carried out. 28 Definition 29 (5) In this section: 30 engage in conduct means: 31 (a) do an act; or 32 (b) omit to do an act. [Page Break] 2 If: 3 (a) a person: 4 (i) commits an offence under subsection 336C(1) or (2); or 5 (ii) commits an offence under Part 2.4 of the Criminal Code 6 in relation to subsection 336C(1) or (2); and 7 (b) another person suffers damage because of the conduct 8 constituting the offence or because of the contravention; 9 the person is liable to compensate the other person for the damage. 10 336E Confidentiality requirement for company, company officers 11 and employees and auditors 12 (1) A person (the offender) commits an offence under this subsection 13 if: 14 (a) a person (the discloser) makes a disclosure of information 15 that qualifies for protection under this Division; and 16 (b) the disclosure is made to: 17 (i) the auditor of, or a member of an audit team conducting 18 an audit of, the superannuation entity; or 19 (ii) an individual who is a trustee of the superannuation 20 entity; or 21 (iii) a director of a body corporate that is the trustee, 22 custodian or investment manager of the superannuation 23 entity; or 24 (iv) a person authorised by the trustee or trustees of the 25 superannuation entity to receive disclosures of that kind; 26 and 27 (c) the offender is: 28 (i) the auditor of, or a member of an audit team conducting 29 an audit of, the superannuation entity; or 30 (ii) an individual who is the trustee of the superannuation 31 entity; or 32 (iii) a director of a body corporate that is the trustee, 33 custodian or investment manager of the superannuation 34 entity; or 35 (iv) a person authorised by the trustee or trustees of the 36 superannuation entity to receive disclosures of that kind; 37 or B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 trustee, custodian or investment manager of the 3 superannuation entity; and 4 (d) the offender discloses any of the following information (the 5 confidential information): 6 (i) the information referred to in paragraph (a); 7 (ii) the identity of the discloser; 8 (iii) information that is likely to lead to the identification of 9 the discloser; and 10 (e) the confidential information is information that the offender 11 obtained directly or indirectly because of the disclosure 12 referred to in paragraph (a); and 13 (f) either: 14 (i) the offender is the person to whom the disclosure 15 referred to in paragraph (a) is made; or 16 (ii) the offender is a person to whom the confidential 17 information is disclosed in contravention of this section 18 and the offender knows that the disclosure of the 19 confidential information to the offender was unlawful or 20 made in breach of confidence; and 21 (g) the disclosure referred to in paragraph (d) is not authorised 22 under subsection (2). 23 Penalty: 25 penalty units. 24 (2) The disclosure referred to in paragraph (1)(d) is authorised under 25 this subsection if: 26 (a) it is made to APRA; or 27 (b) it is made to a member of the Australian Federal Police 28 (within the meaning of the Australian Federal Police Act 29 1979); or 30 (c) it is made to someone else with the consent of the discloser. 31 (3) In this section, officer has the same meaning as it has in the 32 Corporations Act 2001. [Page Break] 2 336F Self-incrimination 3 (1) A person is not excused from complying with a requirement under 4 this Act or the Financial Sector (Collection of Data) Act 2001 to 5 give information to APRA on the ground that doing so would tend 6 to incriminate the person or make the person liable to a penalty. 7 (2) However, if the person is an individual, the information given by 8 the individual in compliance with the requirement is not admissible 9 in evidence against the individual in criminal proceedings or in 10 proceedings for the imposition of a penalty, other than proceedings 11 in respect of the falsity of the information, if: 12 (a) before giving the information, the individual claims that 13 giving the information might tend to incriminate the 14 individual or make the individual liable to a penalty; and 15 (b) giving the information might in fact tend to incriminate the 16 individual or make the individual liable to a penalty. 17 (3) This section does not apply in relation to a requirement under 18 Part 25. 19 Note: See section 287 in relation to requirements under Part 25. 20 155 Part 31 21 Repeal the Part. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Part 2--Amendments commencing 1 January 2008 3 Anti-Money Laundering and Counter-Terrorism Financing 4 Act 2006 5 156 Section 5 (definition of Life Insurance Actuarial Standard 6 4.02) 7 Repeal the definition. 8 157 Section 5 (definition of life policy) 9 Omit "Life Insurance Actuarial Standard 4.02", substitute "prudential 10 standards made under section 230A of the Life Insurance Act 1995". 11 Banking Act 1959 12 158 Subsection 5(1) 13 Insert: 14 business day means a day that is not a Saturday, a Sunday or a 15 public holiday or bank holiday in the place concerned. 16 159 Subsections 16B(2) to (4C) 17 Repeal the subsections. 18 Note: The heading to section 16B is replaced by the heading "Auditors to give information 19 to APRA on request". 20 160 After section 16B 21 Insert: 22 16BA Requirement for auditors to give information about ADIs 23 Persons to whom requirements apply 24 (1) This section applies to a person who is or has been an auditor of a 25 body corporate that is: 26 (a) an ADI; or 27 (b) an authorised NOHC; or [Page Break] 2 (d) if an ADI is a subsidiary of a foreign corporation (whether or 3 not the ADI is itself a foreign ADI): 4 (i) another subsidiary (a relevant Australian-incorporated 5 subsidiary) of the foreign corporation (other than a body 6 mentioned in paragraph (a), (b) or (c)), being a 7 subsidiary that is incorporated in Australia; or 8 (ii) another subsidiary (a relevant foreign-incorporated 9 subsidiary) of the foreign corporation (other than a body 10 mentioned in paragraph (a), (b) or (c)), being a 11 subsidiary that is not incorporated in Australia and 12 carries on business in Australia. 13 Matters requiring immediate notice 14 (2) If the person has reasonable grounds for believing that: 15 (a) the body corporate is insolvent or there is a significant risk 16 that the body corporate will become insolvent; or 17 (b) an existing or proposed state of affairs may materially 18 prejudice the interests of: 19 (i) if the body corporate is an ADI or a subsidiary of an 20 ADI--the depositors of the ADI; or 21 (ii) if the body corporate is an authorised NOHC or a 22 subsidiary of an authorised NOHC--the depositors of 23 any ADI that is a subsidiary of the authorised NOHC; or 24 (iii) if the body corporate is a relevant 25 Australian-incorporated subsidiary or a relevant 26 foreign-incorporated subsidiary of a foreign 27 corporation--the depositors of any ADI that is a 28 subsidiary of the foreign corporation; 29 the person must immediately notify APRA in writing of the matter. 30 Offences in relation to matters requiring immediate notice 31 (3) A person commits an offence if the person contravenes 32 subsection (2). 33 Penalty: Imprisonment for 6 months. 34 (4) A person commits an offence if the person contravenes 35 subsection (2). This is an offence of strict liability. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Note: For strict liability, see section 6.1 of the Criminal Code. 3 Defence if matter already notified 4 (5) Subsections (3) and (4) do not apply to a person in relation to a 5 matter referred to in subsection (2) if: 6 (a) the person becomes aware of the matter because the person is 7 informed of it by a director or senior manager of the body 8 corporate; and 9 (b) the director or senior manager informs the person that the 10 body corporate has notified APRA in writing of the matter; 11 and 12 (c) the person has no reason to disbelieve the director or senior 13 manager. 14 Note: The defendant bears an evidential burden in relation to the matters in 15 subsection (5). See subsection 13.3(3) of the Criminal Code. 16 Matters requiring notice as soon as practicable 17 (6) If the person has reasonable grounds for believing that: 18 (a) the body corporate has failed or will fail to comply with: 19 (i) a provision of this Act, the regulations or the Financial 20 Sector (Collection of Data) Act 2001; or 21 (ii) if the body corporate is an ADI or authorised NOHC--a 22 prudential standard; or 23 (iii) if the body corporate is an ADI or authorised NOHC--a 24 direction under Division 1BA of Part II; or 25 (iv) if the body corporate is an ADI--a condition of the 26 body corporate's section 9 authority; or 27 (v) if the body corporate is an authorised NOHC--a 28 condition of the body corporate's NOHC authority; and 29 (b) the failure to comply is or will be significant (see 30 subsection (7)); 31 the person must give APRA a written report about the failure as 32 soon as practicable, and in any event no later than 10 business 33 days. 34 (7) For the purposes of paragraph (6)(b), a failure to comply is or will 35 be significant if the failure is or will be significant having regard to 36 any one or more of the following: [Page Break] 2 (b) the impact the failure has or will have on the body 3 corporate's ability to conduct its business; 4 (c) the extent to which the failure indicates that the body 5 corporate's arrangements to ensure compliance with this Act, 6 the prudential standards or the regulations might be 7 inadequate; 8 (d) the actual or potential financial loss arising or that will arise 9 from the failure: 10 (i) if the body corporate is an ADI--to the depositors of the 11 body corporate; or 12 (ii) to the body corporate; 13 (e) any matters prescribed by the regulations for the purposes of 14 this paragraph. 15 Offences in relation to matters requiring notice as soon as 16 practicable 17 (8) A person commits an offence if the person contravenes 18 subsection (6). 19 Penalty: Imprisonment for 6 months. 20 (9) A person commits an offence if the person contravenes 21 subsection (6). This is an offence of strict liability. 22 Penalty: 60 penalty units. 23 Note: For strict liability, see section 6.1 of the Criminal Code. 24 Defence if failure already notified 25 (10) Subsections (8) and (9) do not apply to a person in relation to a 26 failure to comply referred to in subsection (6) if: 27 (a) a director or senior manager of the body corporate informs 28 the person that the body corporate has informed APRA in 29 writing of the failure; and 30 (b) the person has no reason to disbelieve the director or senior 31 manager. 32 Note: The defendant bears an evidential burden in relation to the matters in 33 subsection (10). See subsection 13.3(3) of the Criminal Code. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (11) A person commits an offence if: 3 (a) the person is a director or senior manager of a body corporate 4 referred to in subsection (1); and 5 (b) the person knows that there are reasonable grounds for 6 believing a thing referred to in subsection (2) or (6); and 7 (c) the person informs the auditor of the body corporate that the 8 body corporate has informed APRA in writing of the thing; 9 and 10 (d) the body corporate has not done so. 11 Penalty: Imprisonment for 12 months. 12 161 Paragraph 62A(1)(a) 13 Repeal the paragraph, substitute: 14 (a) it becomes aware that it, another member of the group, or the 15 group as a whole, may not be in a sound financial position; 16 and 17 Note: The following heading to subsection 62A(1) is inserted "Matters requiring immediate 18 notice". 19 162 Paragraph 62A(1)(b) 20 After "notify APRA", insert "in writing". 21 163 After subsection 62A(1) 22 Insert: 23 Defence if matter already notified 24 (1A) Subsection (1) does not apply in relation to a matter if: 25 (a) the member of the group becomes aware of the matter 26 because it is informed of it by the auditor of the member; and 27 (b) the auditor informs the member that the auditor has notified 28 APRA in writing of the matter; and 29 (c) the member has no reason to disbelieve the auditor. 30 Note: The defendant bears an evidential burden in relation to the matters in 31 subsection (1A). See subsection 13.3(3) of the Criminal Code. [Page Break] 2 (1B) A member of a relevant group of bodies corporate commits an 3 offence if: 4 (a) it becomes aware that: 5 (i) it, another member of the group, or the group as a 6 whole, has breached or will breach a prudential standard 7 applying to it, the other member or the group as a 8 whole; or 9 (ii) another member of the group has breached or will 10 breach a provision of this Act or the regulations, or a 11 direction under Division 1BA of Part II or a condition of 12 any authority granted under this Act to the other 13 member; and 14 (b) the breach is or will be significant (see subsection (1C)); and 15 (c) it fails to give APRA a written report about the breach as 16 soon as practicable, and in any case no later than 10 business 17 days, after becoming aware of the breach. 18 Penalty: 200 penalty units. 19 (1C) For the purposes of paragraph (1B)(b), a breach is significant if the 20 breach is or will be significant having regard to any one or more of 21 the following factors: 22 (a) the number or frequency of similar breaches; 23 (b) the impact the breach has or will have on the member's or 24 other member's ability to conduct its business; 25 (c) the extent to which the breach indicates that the member's or 26 other member's arrangements to ensure compliance with this 27 Act, the regulations, the prudential standards or a direction or 28 condition might be inadequate; 29 (d) the actual or potential financial loss arising or that will arise 30 from the breach: 31 (i) to the depositors of the ADI or any ADI that is a 32 member of the relevant group of bodies corporate; or 33 (ii) to the member or other member; 34 (e) any matters prescribed by the regulations for the purposes of 35 this paragraph. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (1D) Subsection (1B) does not apply in relation to a breach if: 3 (a) the auditor of the member of the group gives APRA a written 4 report about the breach; and 5 (b) the report is given before, or within 10 business days after, 6 the member becomes aware of the breach. 7 Note: The defendant bears an evidential burden in relation to the matters in 8 subsection (1D). See subsection 13.3(3) of the Criminal Code. 9 164 Paragraphs 62A(2)(a) and (b) 10 After "subsection (1)", insert "or (1B)". 11 165 Subsection 62A(3) 12 After "notification", insert "or report". 13 166 Subsection 62A(3) 14 After "paragraph (1)(a)", insert "or (1B)(a)". 15 Corporations Act 2001 16 167 Subsection 912D(1) 17 Omit "If", substitute "A financial services licensee must comply with 18 subsection (1B) if". 19 168 Paragraph 912D(1)(a) 20 Omit "a financial services licensee", substitute "the licensee". 21 169 Subparagraph 912D(1)(b)(v) 22 Omit "paragraph;", substitute "paragraph.". 23 170 Subsection 912D(1) 24 Omit all the words after subparagraph 912D(1)(b)(v) (including the 25 note). 26 171 After subsection 912D(1A) 27 Insert: [Page Break] 2 any case within 10 business days after becoming aware of the 3 breach or likely breach mentioned in subsection (1), lodge a written 4 report on the matter with ASIC. 5 Note: Failure to comply with this subsection is an offence (see subsection 6 1311(1)). 7 (1C) A report that a licensee is required to lodge under subsection (1B) 8 is taken to have been lodged with ASIC if: 9 (a) the licensee is a body regulated by APRA; and 10 (b) the report is received by APRA in accordance with the terms 11 of an agreement between APRA and ASIC under which 12 APRA is to act as ASIC's agent in relation to such reports. 13 (1D) Subsection (1B) does not apply to a financial services licensee that 14 is a body regulated by APRA in relation to a breach if: 15 (a) the auditor or actuary of the licensee gives APRA a written 16 report about the breach; and 17 (b) the report is given before, or within 10 business days after, 18 the licensee becomes aware of the breach. 19 172 Schedule 3 (table item 264A) 20 Omit "Subsection 912D(1)", substitute "Subsection 912D(1B)". 21 Income Tax Assessment Act 1997 22 173 Subsection 995-1(1) (definition of current termination 23 value) 24 Omit "the *Solvency Standard", substitute "prudential standards made 25 under section 230A of the Life Insurance Act 1995". 26 174 Subsection 995-1(1) (definition of policy termination 27 value) 28 Omit "the *Solvency Standard", substitute "prudential standards made 29 under section 230A of the Life Insurance Act 1995". 30 175 Subsection 995-1(1) (definition of Solvency Standard) 31 Repeal the definition. 32 176 Subsection 995-1(1) (definition of Valuation Standard) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 section 230A of the Life Insurance Act 1995". 3 Insurance Act 1973 4 177 Subsection 3(1) 5 Insert: 6 business day means a day that is not a Saturday, a Sunday or a 7 public holiday or bank holiday in the place concerned. 8 178 Section 35A 9 Repeal the section. 10 179 At the end of Division 3 of Part IIIA 11 Add: 12 38AA Requirement to notify APRA of certain matters 13 Matters requiring immediate notice 14 (1) If: 15 (a) a general insurer has breached or will breach a provision of 16 this Act or the prudential standards; and 17 (b) the provision relates to financial obligations the general 18 insurer has to its policy holders or to the general insurer's 19 minimum capital requirements; 20 the general insurer must immediately notify APRA in writing of 21 the breach. 22 Offence in relation to matters requiring immediate notice 23 (2) A general insurer commits an offence if the general insurer 24 contravenes subsection (1). 25 Penalty: 200 penalty units. 26 Defence if matter already notified 27 (3) Subsection (2) does not apply to a general insurer in relation to a 28 breach referred to in subsection (1) if: [Page Break] 2 informed of it by the auditor or actuary of the insurer; and 3 (b) the auditor or actuary informs the insurer that the auditor or 4 actuary has notified APRA in writing of the matter; and 5 (c) the insurer has no reason to disbelieve the auditor or actuary. 6 Note 1: Auditors and actuaries must give APRA certain information under 7 section 49A and may give APRA information under section 49B. 8 Note 2: The defendant bears an evidential burden in relation to the matters in 9 subsection (3). See subsection 13.3(3) of the Criminal Code. 10 Matters requiring notice as soon as practicable 11 (4) If a body corporate that is a general insurer, an authorised NOHC 12 or a subsidiary of a general insurer or authorised NOHC becomes 13 aware: 14 (a) both: 15 (i) that the body corporate has breached or will breach a 16 provision of this Act or the prudential standards (other 17 than a provision to which subsection (1) applies); and 18 (ii) that the breach is or will be significant (see 19 subsection (5)); or 20 (b) of a matter that materially and adversely affects the body 21 corporate's financial position; 22 the body corporate must give APRA a written report about the 23 breach or matter as soon as practicable, and in any case no later 24 than 10 business days, after becoming aware of the breach or 25 matter. 26 (5) For the purposes of subparagraph (4)(a)(ii), a breach of a provision 27 is or will be significant if the breach is or will be significant 28 having regard to one or more of the following: 29 (a) the number or frequency of similar breaches; 30 (b) the impact the breach has or will have on the body 31 corporate's ability to conduct its business; 32 (c) the extent to which the breach indicates that the body 33 corporate's arrangements to ensure compliance with this Act 34 or with the prudential standards might be inadequate; 35 (d) the actual or potential financial loss arising or that will arise 36 from the breach: 37 (i) to policy holders of the body corporate; or B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (e) any matters prescribed by the regulations for the purposes of 3 this paragraph. 4 Offence in relation to matters requiring immediate notice 5 (6) A body corporate commits an offence if the body corporate 6 contravenes subsection (5). 7 Penalty: 200 penalty units. 8 Defence if auditor or actuary notifies breach 9 (7) Subsection (6) does not apply to a body corporate in relation to a 10 breach referred to in subsection (4) if: 11 (a) the auditor or actuary of the body corporate gives APRA a 12 written report about the breach or matter; and 13 (b) the report is given before, or within 10 business days after, 14 the body corporate becomes aware of the breach or matter. 15 Note 1: Auditors and actuaries must give APRA certain information under 16 section 49A and may give APRA information under section 49B. 17 Note 2: The defendant bears an evidential burden in relation to the matters in 18 subsection (7). See subsection 13.3(3) of the Criminal Code. 19 Ancillary offences 20 (8) If an individual: 21 (a) commits an offence under subsection (2) or (6) because of 22 Part 2.4 of the Criminal Code; or 23 (b) commits an offence under Part 2.4 of the Criminal Code in 24 relation to an offence under subsection (2) or (6); 25 the individual is punishable on conviction by a fine not exceeding 26 40 penalty units. 27 Limits on information to be provided 28 (9) A notice or report given under subsection (1) or (4) must not 29 include information, books, accounts or documents with respect to 30 the affairs of an individual insured person, unless the information, 31 books, accounts or documents are in respect of prudential matters 32 relating to the body corporate. 33 180 Subsection 39(3) [Page Break] 2 (3) A general insurer must not appoint a person as the auditor or 3 actuary of the insurer unless: 4 (a) the insurer is reasonably satisfied that the person meets the 5 eligibility criteria for such an appointment set out in the 6 prudential standards; and 7 (b) no determination is in force under section 44 disqualifying 8 the person from holding such an appointment. 9 181 Sections 40 and 42 10 Repeal the sections. 11 182 Section 43 12 Before "A person", insert "(1)". 13 183 Paragraph 43(b) 14 Repeal the paragraph. 15 184 At the end of section 43 16 Add: 17 (2) A general insurer must end a person's appointment as auditor or 18 actuary of the general insurer, by giving the person written notice 19 under paragraph (1)(e), if the general insurer is satisfied that the 20 person: 21 (a) has, in relation to the insurer, failed to perform adequately 22 and properly the functions and duties of the appointment 23 under this Act or the prudential standards; or 24 (b) does not meet one or more of the criteria for fitness and 25 propriety set out in the prudential standards; or 26 (c) does not meet the eligibility criteria for the appointment set 27 out in the prudential standards. 28 185 Paragraphs 49A(2)(b) and (c) 29 Repeal the paragraphs. 30 Note 1: The following heading to subsection 49A(1) is inserted "Persons to whom requirements 31 apply". 32 Note 2: The following heading to subsection 49A(2) is inserted "Matters requiring immediate 33 notice". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Omit "give APRA information (in writing) about the matter", substitute 3 "immediately notify APRA in writing of the matter". 4 Note: The following heading to subsection 49A(3) is inserted "Offences in relation to matters 5 requiring immediate notice". 6 187 At the end of section 49A 7 Add: 8 Defence in relation to matters requiring immediate notice 9 (5) Subsections (3) and (4) do not apply to a person in relation to a 10 matter referred to in subsection (2) if: 11 (a) the person becomes aware of the matter because the person is 12 informed of it by a director or senior manager of the insurer, 13 NOHC or subsidiary; and 14 (b) the director or senior manager informs the person that the 15 insurer, NOHC or subsidiary has notified APRA in writing of 16 the matter; and 17 (c) the person has no reason to disbelieve the director or senior 18 manager. 19 Note: The defendant bears an evidential burden in relation to the matters in 20 subsection (5). See subsection 13.3(3) of the Criminal Code. 21 Matters requiring notice as soon as practicable 22 (6) If the person has reasonable grounds for believing: 23 (a) any of the following: 24 (i) the insurer, NOHC or subsidiary has failed or will fail to 25 comply with the prudential standards; 26 (ii) in the case of an insurer--the insurer has failed or will 27 fail to comply with a condition of its authorisation under 28 section 12; 29 (iii) in the case of an authorised NOHC--the NOHC has 30 failed or will fail to comply with a condition of its 31 authorisation under section 18; 32 (iv) the insurer, NOHC or subsidiary has failed or will fail to 33 comply with a requirement or direction under this Act or 34 a requirement under the Financial Sector (Collection of 35 Data) Act 2001; and [Page Break] 2 the person must give APRA a written report about the failure as 3 soon as practicable, and in any case no later than 10 business days. 4 (7) For the purposes of paragraph (6)(b), a failure to comply is or will 5 be significant if the failure to comply is or will be significant 6 having regard to any one or more of the following: 7 (a) the number or frequency of similar failures; 8 (b) the impact the failure has or will have on the insurer's, 9 NOHC's or subsidiary's ability to conduct its business; 10 (c) the extent to which the failure indicates that the insurer's, 11 NOHC's or subsidiary's arrangements to ensure compliance 12 with this Act or with the prudential standards might be 13 inadequate; 14 (d) the actual or potential financial loss arising or that will arise 15 from the failure: 16 (i) in the case of an insurer--to the policy holders of the 17 insurer; or 18 (ii) to the insurer, NOHC or subsidiary; 19 (e) any matters prescribed by the regulations for the purposes of 20 this paragraph. 21 Offences in relation to matters requiring notice as soon as 22 practicable 23 (8) A person commits an offence if the person contravenes 24 subsection (6). 25 Penalty: Imprisonment for 6 months, or 100 penalty units, or both. 26 (9) A person commits an offence if the person contravenes 27 subsection (6). This is an offence of strict liability. 28 Penalty: 60 penalty units. 29 Note: For strict liability, see section 6.1 of the Criminal Code. 30 Defence if failure already notified 31 (10) Subsections (8) and (9) do not apply to a person in relation to a 32 failure to comply referred to in subsection (6) if: B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 subsidiary informs the person that the insurer, NOHC or 3 subsidiary has informed APRA in writing of the failure; and 4 (b) the person has no reason to disbelieve the director or senior 5 manager. 6 Note: The defendant bears an evidential burden in relation to the matters in 7 subsection (10). See subsection 13.3(3) of the Criminal Code. 8 Offence in relation to subsections (5) and (10) 9 (11) A person commits an offence if: 10 (a) the person is a director or senior manager of a general 11 insurer, an authorised NOHC or a subsidiary of a general 12 insurer or authorised NOHC; and 13 (b) the person knows that there are reasonable grounds for 14 believing a thing referred to in subsection (2) or (6); and 15 (c) the person informs the auditor or actuary of the insurer, 16 NOHC or subsidiary that the insurer, NOHC or subsidiary 17 has informed APRA in writing of the thing; and 18 (d) the insurer, NOHC or subsidiary has not done so. 19 Penalty: Imprisonment for 12 months. 20 188 At the end of Part IV 21 Add: 22 Division 6--Removal of auditors and actuaries 23 49R APRA may direct removal of auditor or actuary 24 (1) APRA may, if satisfied there is a ground under subsection (3), give 25 a written direction to a body corporate that is a general insurer to 26 end the appointment of a person as: 27 (a) the auditor of the general insurer; or 28 (b) the actuary of the general insurer. 29 (2) APRA may, if satisfied there is a ground under subsection (3), give 30 a written direction to a body corporate that is an authorised NOHC 31 to end the appointment of a person as: 32 (a) the auditor of the authorised NOHC; or 33 (b) the actuary of the authorised NOHC. [Page Break] 2 are: 3 (a) if the person is the auditor or actuary of a general insurer-- 4 the person is disqualified from holding such an appointment 5 under section 44; or 6 (b) the person does not meet one or more of the criteria for 7 fitness and propriety set out in the prudential standards. 8 (4) Before directing a body corporate to end a person's appointment, 9 APRA must: 10 (a) give written notice to: 11 (i) the body corporate; and 12 (ii) the person; and 13 (b) give the body corporate and the person a reasonable 14 opportunity to make submissions on the matter. 15 (5) The notice must include a statement that any submissions in 16 response to the notice may be discussed by APRA with other 17 persons as mentioned in paragraph (6)(b). 18 (6) If a submission is made in response to the notice, APRA: 19 (a) must have regard to the submission; and 20 (b) may discuss any matter contained in the submission with any 21 persons APRA considers appropriate for the purpose of 22 assessing the truth of the matter. 23 (7) A direction to end a person's appointment takes effect on the day 24 specified in the direction, which must be at least 7 days after the 25 direction is made. 26 (8) If APRA directs a body corporate to end a person's appointment, 27 APRA must give the body corporate and the person a copy of the 28 direction. 29 (9) The power of a body corporate to comply with a direction to end a 30 person's appointment may be exercised on behalf of the body 31 corporate: 32 (a) by the Chair of the board of directors of the body corporate 33 signing a written notice; or 34 (b) by a majority of the directors of the body corporate 35 (excluding any director who is the subject of the direction) 36 jointly signing a written notice. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 body corporate to end a person's appointment. 3 (11) Part VI applies to a decision by APRA to give a direction under 4 this section on the ground referred to in paragraph (3)(b). 5 (12) A direction to end a person's appointment is not a legislative 6 instrument. 7 (13) A body corporate commits an offence if: 8 (a) the body corporate does or fails to do an act; and 9 (b) by doing or failing to do the act, the body corporate fails to 10 comply with a direction under this section. 11 Penalty: 60 penalty units. 12 (14) Strict liability applies to subsection (13). 13 Note: For strict liability, see section 6.1 of the Criminal Code. 14 Life Insurance Act 1995 15 189 Subsection 16A(5) 16 Repeal the subsection, substitute: 17 (5) In addition to the modifications set out in this Part and in 18 regulations for the purposes of section 16ZC, this Act includes 19 some other special provisions in relation to friendly societies. See 20 in particular various provisions in Division 2 of Part 8 about 21 winding up of friendly societies. 22 190 Paragraphs 42(4)(a) and (b) 23 Omit "actuarial standards", substitute "the prudential standards". 24 191 Subsection 47(1) 25 Omit "The regulations may declare", substitute "The prudential 26 standards may specify". 27 192 Subsection 47(2) 28 Omit "If regulations are made under", substitute "If prudential standards 29 are made for the purposes of". 30 193 Paragraphs 47(2)(a) and (b) [Page Break] 2 194 Subparagraphs 52(4)(b)(i) and (ii) 3 Omit "the solvency standard applicable to it", substitute "the prudential 4 standards in relation to solvency". 5 195 Section 57 6 After "If", insert "annual". 7 196 Paragraph 62(3)(a) 8 Omit "solvency standard", substitute "prudential standards in relation to 9 solvency". 10 197 Paragraph 62(3)(b) 11 Omit "section 68", substitute "section 230B in relation to solvency". 12 198 Paragraph 62(4)(a) 13 Omit "capital adequacy standard", substitute "prudential standards in 14 relation to capital adequacy". 15 199 Paragraph 62(4)(b) 16 Omit "section 73", substitute "section 230B in relation to capital 17 adequacy". 18 200 Subparagraph 63(1)(b)(i) 19 Omit "solvency standard", substitute "prudential standards in relation to 20 solvency". 21 201 Subparagraph 63(1)(b)(ii) 22 Omit "section 68", substitute "section 230B in relation to solvency". 23 202 Paragraph 63(2)(a) 24 Omit "capital adequacy standard", substitute "prudential standards in 25 relation to capital adequacy". 26 203 Paragraph 63(2)(b) 27 Omit "section 73", substitute "section 230B in relation to capital 28 adequacy". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Repeal the Part. 3 205 Subsection 80(3) 4 Omit ", for the purposes of subsection 83(3), by the approved auditor 5 for the company", substitute "by the auditor of the life company for the 6 purposes of the Financial Sector (Collection of Data) Act 2001". 7 206 Section 83 8 Repeal the section, substitute: 9 83 Life company to have auditor 10 (1) A life company must have an auditor appointed by the life 11 company. 12 (2) The auditor of a life company must perform for the life company 13 the functions of an auditor set out in the prudential standards and in 14 reporting standards made by APRA under the Financial Sector 15 (Collection of Data) Act 2001. 16 (3) The life company must make any arrangements necessary to enable 17 the auditor to perform those functions. 18 207 Sections 84, 85 and 86 19 Repeal the sections, substitute: 20 84 Appointment of auditor 21 A life company must not appoint a person as the auditor of the life 22 company unless: 23 (a) the life company is reasonably satisfied that the person meets 24 the eligibility criteria set out in the prudential standards for 25 appointment as the auditor of a life company; and 26 (b) no declaration is in force in relation to the person under 27 section 86. 28 85 Ending an appointment as auditor 29 (1) A life company must end the appointment of a person as auditor of 30 the life company if: [Page Break] 2 prudential standards for appointment as the auditor of a life 3 company; or 4 (b) the life company is satisfied that the person has, in relation to 5 the company, failed to perform adequately and properly the 6 functions and duties of an auditor under this Act; or 7 (c) a declaration takes effect in relation to the person under 8 section 86. 9 (2) If: 10 (a) a life company is required under subsection (1) to end the 11 appointment of a person as auditor of the company; and 12 (b) the power to appoint the auditor of the company is not vested 13 in the directors of the company or is not vested in the 14 directors of the company alone; 15 the directors may appoint a person who satisfies the requirements 16 in paragraphs 84(a) and (b) to be the auditor of the company until 17 an appointment is made in accordance with the constitution or 18 other rules of the life company. 19 86 Declaration that an auditor is ineligible 20 (1) APRA may, in writing, declare that a person is ineligible to hold an 21 appointment as an auditor of a life company if: 22 (a) the person does not meet the eligibility criteria set out in the 23 prudential standards for appointment as the auditor of a life 24 company; or 25 (b) the person has failed to perform adequately and properly the 26 functions and duties of an auditor under this Act. 27 (2) The declaration takes effect on the day specified in the declaration 28 (which must not be more than 28 days after the declaration is 29 made). 30 (3) APRA must give a copy to the person in relation to whom the 31 declaration is made. 32 (4) A declaration made under subsection (1) is not a legislative 33 instrument. 34 208 Subsection 88(2) 35 After "the auditor must", insert "immediately". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Insert: 3 (2A) Subsection (2) does not apply to the auditor of a life company in 4 relation to a contravention if: 5 (a) a director or senior manager of the life company informs the 6 auditor that the life company has informed APRA in writing 7 of the contravention; and 8 (b) the auditor has no reason to disbelieve the director or senior 9 manager. 10 (2B) A person commits an offence if: 11 (a) the person is a director or senior manager of a life company; 12 and 13 (b) the person knows that: 14 (i) there are reasonable grounds for believing that the life 15 company or a director of the life company may have 16 contravened this Act or any other Act; and 17 (ii) the contravention is of such a nature that it may affect 18 significantly the interests of the owners of policies 19 issued by the company; and 20 (c) the person informs the auditor of the life company that the 21 life company has informed APRA in writing of the 22 contravention; and 23 (d) the life company has not done so. 24 Penalty: Imprisonment for 12 months. 25 210 Sections 90, 91 and 92 26 Repeal the sections. 27 211 Subsections 93(3), (4), (5) and (6) 28 Repeal the subsections, substitute: 29 (3) A life company must not appoint a person as the actuary of the life 30 company unless: 31 (a) the life company is reasonably satisfied that the person meets 32 the eligibility criteria set out in the prudential standards for 33 appointment as the actuary of a life company; and [Page Break] 2 section 94A. 3 212 Section 94 4 Repeal the section, substitute: 5 94 Ending an appointment as actuary 6 (1) A life company must end the appointment of a person as actuary of 7 the life company if: 8 (a) the person does not meet the eligibility criteria set out in the 9 prudential standards for appointment as the actuary of a life 10 company; or 11 (b) the life company is satisfied that the person has, in relation to 12 the company, failed to perform adequately and properly the 13 duties and functions of an appointed actuary under this Act; 14 or 15 (c) a declaration takes effect in relation to the person under 16 section 94A. 17 (2) If: 18 (a) a life company is required under subsection (1) to end the 19 appointment of a person as actuary of the company; and 20 (b) the power to appoint the actuary of the company is not vested 21 in the directors of the company or is not vested in the 22 directors of the company alone; 23 the directors may appoint a person who satisfies the requirements 24 in paragraphs 93(3)(a) and (b) to be the actuary of the company 25 until an appointment is made in accordance with the constitution or 26 other rules of the life company. 27 94A Declaration that an actuary is ineligible 28 (1) APRA may, in writing, declare that a person is not eligible to hold 29 an appointment as actuary of a life company if: 30 (a) the person does not meet the eligibility criteria set out in the 31 prudential standards for appointment as the actuary of a life 32 company; or 33 (b) the person has failed to perform adequately and properly the 34 functions and duties of an actuary under this Act. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (which must not be more than 28 days after the declaration is 3 made). 4 (3) APRA must give a copy to the person in relation to whom the 5 declaration is made. 6 (4) A declaration made under subsection (1) is not a legislative 7 instrument. 8 213 Section 96 9 Omit "actuarial", substitute "prudential". 10 Note: The heading to section 96 is altered by omitting "actuarial" and substituting 11 "prudential". 12 214 Section 97 13 Repeal the section, substitute: 14 97 Role of actuary 15 (1) The appointed actuary of a life company must perform for the 16 company the functions of an actuary set out in the prudential 17 standards and in reporting standards made by APRA under the 18 Financial Sector (Collection of Data) Act 2001. 19 (2) The life company must make any arrangements necessary to enable 20 the appointed actuary to perform those functions. These 21 arrangements may include (without limitation) the following: 22 (a) providing access to documents and information in the 23 company's control; 24 (b) requiring officers or employees of the company to answer 25 questions; 26 (c) allowing the actuary to attend meetings of directors of the 27 company, annual general meetings or any other meetings of 28 members of the company; 29 (d) allowing the actuary to speak at meetings of directors of the 30 company on matters under consideration that relate to the 31 functions and duties of the actuary. 32 215 Subsection 98(2) 33 After "the appointed actuary must", insert "immediately". [Page Break] 2 Insert: 3 (2A) Subsection (2) does not apply to the appointed actuary of a life 4 company in relation to a contravention if: 5 (a) a director or senior manager of the life company informs the 6 actuary that the life company has informed APRA in writing 7 of the contravention; and 8 (b) the actuary has no reason to disbelieve the director or senior 9 manager. 10 (2B) A person commits an offence if: 11 (a) the person is a director or senior manager of a life company; 12 and 13 (b) the person knows that: 14 (i) there are reasonable grounds for believing that the life 15 company or a director of the life company may have 16 contravened this Act or any other Act; and 17 (ii) the contravention is of such a nature that it may affect 18 significantly the interests of the owners of policies 19 issued by the company; and 20 (c) the person informs the appointed actuary of the life company 21 that the life company has informed APRA in writing of the 22 contravention; and 23 (d) the life company has not done so. 24 Penalty: Imprisonment for 12 months. 25 217 Subsection 98(4) 26 Repeal the subsection. 27 218 Divisions 4, 5 and 6 of Part 6 28 Repeal the Divisions. 29 219 Before section 125 30 Insert: B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (1) This section applies to a valuation of policy liabilities made for the 3 purposes of any provision of this Act, other than a provision of 4 Division 2 of Part 8. 5 (2) A valuation of the policy liabilities referable to a statutory fund 6 must be made in accordance with the prudential standards. 7 124 Policy owner's right to copy of annual financial statements and 8 annual return 9 (1) The owner of a policy issued by a life company is entitled, on his 10 or her request, to be provided by the company with one copy of the 11 latest annual financial statements and annual return given by the 12 company to APRA under the Financial Sector (Collection of Data) 13 Act 2001. 14 (2) Copies provided under subsection (1) are to be provided free of 15 charge. 16 220 After section 132 17 Insert: 18 132A Requirement to notify APRA of certain matters 19 Matters requiring immediate notice 20 (1) If: 21 (a) a life company becomes aware that the life company has 22 breached or will breach a provision of this Act; and 23 (b) the provision relates to financial obligations the life company 24 has to the owners of policies issued by it or to the life 25 company's minimum capital requirements; 26 the life company must immediately notify APRA in writing of the 27 breach. 28 Offence in relation to matters requiring immediate notice 29 (2) A life company commits an offence if the life company 30 contravenes subsection (1). 31 Penalty: 200 penalty units. [Page Break] 2 (3) Subsection (2) does not apply to a life company in relation to a 3 breach referred to in subsection (1) if: 4 (a) the life company becomes aware of the breach because it is 5 informed of it by the auditor or appointed actuary of the life 6 company; and 7 (b) the auditor or appointed actuary informs the life company 8 that the auditor or actuary has notified APRA in writing of 9 the breach; and 10 (c) the life company has no reason to disbelieve the auditor or 11 appointed actuary. 12 Note 1: Auditors and appointed actuaries must give APRA certain information 13 under sections 88 and 98, and may give APRA information under 14 sections 88A and 98A. 15 Note 2: The defendant bears an evidential burden in relation to the matters in 16 subsection (3). See subsection 13.3(3) of the Criminal Code. 17 Matters requiring notice as soon as practicable 18 (4) If a life company becomes aware: 19 (a) both: 20 (i) that the life company has breached or will breach a 21 provision of this Act (other than a provision to which 22 subsection (1) applies); and 23 (ii) that the breach is or will be significant (see 24 subsection (5)); or 25 (b) of a matter that materially and adversely affects the life 26 company's financial position; 27 the life company must give APRA a written report about the breach 28 or matter as soon as practicable, and in any case no later than 10 29 business days, after becoming aware of the breach or matter. 30 (5) For the purposes of subparagraph (4)(a)(ii), a breach of a provision 31 is or will be significant if the breach is or will be significant 32 having regard to any one or more of the following: 33 (a) the number or frequency of similar breaches; 34 (b) the impact the breach has or will have on the life company's 35 ability to conduct its life insurance business; B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 company's arrangements to ensure compliance with this Act 3 or with the prudential standards might be inadequate; 4 (d) the actual or potential financial loss arising or that will arise 5 from the breach: 6 (i) to the owners of policies issued by the life company; or 7 (ii) to the life company; 8 (e) any matters prescribed by the regulations for the purposes of 9 this paragraph. 10 Offence in relation to matters requiring notice as soon as 11 practicable 12 (6) A life company commits an offence if the life company 13 contravenes subsection (4). 14 Penalty: 200 penalty units. 15 Defence if auditor or actuary notifies breach 16 (7) Subsection (6) does not apply to a life company in relation to a 17 breach or matter referred to in subsection (4) if: 18 (a) the auditor or appointed actuary of the life company gives 19 APRA a written report about the breach or matter; and 20 (b) the report is given before, or within 10 business days after, 21 the life company becomes aware of the breach or matter. 22 Note 1: Auditors and appointed actuaries must give APRA certain information 23 under sections 88 and 98, and may give APRA information under 24 sections 88A and 98A. 25 Note 2: The defendant bears an evidential burden in relation to the matters in 26 subsection (7). See subsection 13.3(3) of the Criminal Code. 27 Ancillary offences 28 (8) If an individual: 29 (a) commits an offence under subsection (2) or (6) because of 30 Part 2.4 of the Criminal Code; or 31 (b) commits an offence under Part 2.4 of the Criminal Code in 32 relation to an offence under subsection (2) or (6); 33 the individual is punishable on conviction by a fine not exceeding 34 40 penalty units. [Page Break] 2 (9) A notice or report given under subsection (1) or (4) must not 3 include information, books, accounts or documents with respect to 4 the affairs of an individual insured person, unless the information, 5 books, accounts or documents are in respect of prudential matters 6 relating to the life company. 7 221 Subparagraph 159(a)(ii) 8 Omit "solvency standard", substitute "prudential standards in relation to 9 solvency". 10 222 Subparagraph 159(a)(iii) 11 Omit "section 68", substitute "section 230B in relation to solvency". 12 223 Subsection 207(4) 13 Omit "actuarial standards", substitute "the prudential standards". 14 224 Subsection 209(3) 15 Omit "actuarial standards", substitute "the prudential standards". 16 225 Paragraph 209(5)(d) 17 Omit "actuarial standards", substitute "the prudential standards". 18 226 Subsection 236(1) (definition of person affected by a 19 reviewable decision) 20 Repeal the definition. 21 227 Subsection 236(1) (paragraphs (o), (p), (q), (r), (s), (sa), 22 (sb), (sc) and (t) of the definition of reviewable decision) 23 Repeal the paragraphs. 24 228 Subsection 236(1) (paragraphs (v), (w), (x), (y) and (z) of 25 the definition of reviewable decision) 26 Repeal the paragraphs, substitute: 27 (v) a decision under section 86 to make a declaration that a 28 person is ineligible to hold an appointment as an auditor of a 29 life company; B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 person is ineligible to hold an appointment as actuary of a life 3 company; 4 229 Subsection 236(1) (paragraphs (za), (zc), (zg) and (zga) of 5 the definition of reviewable decision) 6 Repeal the paragraphs. 7 230 Paragraphs 236(1A)(e), (f), (g), (h), (i), (j), (ja), (jb) and (jc) 8 Repeal the paragraphs. 9 231 Schedule (definition of actuarial standards) 10 Repeal the definition. 11 232 Schedule (definition of annual actuarial investigation) 12 Repeal the definition. 13 233 Schedule (definition of approved auditor) 14 Repeal the definition. 15 234 Schedule (definition of Board) 16 Repeal the definition. 17 235 Schedule 18 Insert: 19 business day means a day that is not a Saturday, a Sunday or a 20 public holiday or bank holiday in the place concerned. 21 236 Schedule (definition of financial condition report) 22 Repeal the definition. 23 237 Schedule (paragraph (a) of the definition of this Act) 24 Omit "actuarial standards,". 25 238 Schedule (paragraph (b) of the definition of this Act) 26 Omit "the instruments made under that Act referred to in 27 paragraph (a)", substitute "prudential standards made under that Act". [Page Break] 2 239 Subsection 10(1) (after paragraph (t) of the definition of 3 reviewable decision) 4 Insert: 5 (ta) a decision of APRA to give a direction under section 131AA, 6 other than a direction on the ground mentioned in paragraph 7 133AA(2)(a); or 8 240 Subsection 29JA(1) 9 Repeal the subsection, substitute: 10 (1) If an RSE licensee becomes aware that: 11 (a) the RSE licensee has breached or will breach a condition 12 imposed on its RSE licence; and 13 (b) the breach is or will be significant (see subsection (1A)); 14 the RSE licensee must give APRA a written report about the 15 breach as soon as practicable, and in any case no later than 10 16 business days, after becoming aware of the breach. 17 (1A) For the purposes of subsection (1), a breach is or will be 18 significant if the breach is or will be significant having regard to 19 any one or more of the following factors: 20 (a) the number or frequency of similar previous breaches; 21 (b) the impact the breach has or will have on the RSE licensee's 22 ability to fulfil its obligations as trustee of the superannuation 23 entity; 24 (c) the extent to which the breach indicates that the RSE 25 licensee's arrangements to ensure compliance with the RSE 26 licensee law might be inadequate; 27 (d) the actual or potential financial loss arising or that will arise 28 from the breach to the beneficiaries of the entity or to the 29 RSE licensee; 30 (e) any other matters prescribed by regulations made for the 31 purposes of this paragraph. 32 241 Subsection 106(1) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 event, no later than the third business day after the first-mentioned 3 trustee becomes aware of the event", substitute "immediately notifies 4 the Regulator in writing of the event". 5 242 Subsection 129(3) 6 Omit "as soon as practicable", substitute "immediately". 7 243 Subsection 130(2) 8 Omit "as soon as practicable", substitute "immediately". 9 244 After section 131 10 Insert: 11 131AA APRA may direct removal of auditor or actuary 12 (1) APRA may, if satisfied there is a ground under subsection (2), give 13 a written direction to the trustee or trustees of a superannuation 14 entity to end the appointment of a person as: 15 (a) the approved auditor of the superannuation entity; or 16 (b) the actuary of the superannuation entity. 17 (2) The grounds for giving a direction to end a person's appointment 18 are: 19 (a) if the person is the approved auditor of the superannuation 20 entity--the person is disqualified under section 131; or 21 (b) the person is not a fit and proper person to hold the 22 appointment; or 23 (c) the person has failed to perform adequately and properly the 24 duties or functions of the appointment under this Act, the 25 regulations or the Financial Sector (Collection of Data) Act 26 2001. 27 (3) Before directing a trustee or trustees to end a person's appointment, 28 APRA must: 29 (a) give written notice to: 30 (i) the trustee or trustees; and 31 (ii) the person; and 32 (b) give the trustee or trustees and the person a reasonable 33 opportunity to make submissions on the matter. [Page Break] 2 response to the notice may be discussed by APRA with other 3 persons as mentioned in paragraph (5)(b). 4 (5) If a submission is made in response to the notice, APRA: 5 (a) must have regard to the submission; and 6 (b) may discuss any matter contained in the submission with any 7 persons APRA considers appropriate for the purpose of 8 assessing the truth of the matter. 9 (6) A direction to end a person's appointment takes effect on the day 10 specified in the direction, which must be at least 7 days after the 11 direction is made. 12 (7) If APRA directs a trustee or trustees to end a person's appointment, 13 APRA must give the trustee or trustees and the person a copy of 14 the direction. 15 (8) A direction to end a person's appointment is not a legislative 16 instrument. 17 (9) A trustee commits an offence if: 18 (a) the trustee does or fails to do an act; and 19 (b) by doing or failing to do the act, the trustee fails to comply 20 with a direction under this section. 21 Penalty: 60 penalty units. 22 (10) Strict liability applies to subsection (9). 23 Note: For strict liability, see section 6.1 of the Criminal Code. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Part 3--Amendments commencing 12 months after 3 Royal Assent 4 A New Tax System (Australian Business Number) Act 1999 5 245 After paragraph 26(3)(j) 6 Insert: 7 (ja) if the entity is an *RSE licensee: 8 (i) the class of licence held by the licensee; and 9 (ii) the address for the licensee recorded by the Australian 10 Prudential Regulation Authority for the purposes of the 11 Superannuation Industry (Supervision) Act 1993; and 12 (iii) the licensee's postal address; and 13 (iv) the licensee's telephone number; 14 (jb) if the entity is a registrable superannuation entity within the 15 meaning of the Superannuation Industry (Supervision) Act 16 1993: 17 (i) the address for the entity recorded by the Australian 18 Prudential Regulation Authority for the purposes of the 19 Superannuation Industry (Supervision) Act 1993; and 20 (ii) the entity's postal address; and 21 (iii) the entity's telephone number; and 22 (iv) the entity's contact person; and 23 (v) the RSE licensee of the entity; 24 Superannuation Industry (Supervision) Act 1993 25 246 Subsection 10(1) 26 Insert: 27 ABN has the meaning given by section 41 of the A New Tax 28 System (Australian Business Number) Act 1999. 29 247 Section 29DB 30 Repeal the section, substitute: [Page Break] 2 If APRA decides to grant an RSE licence to a body corporate or 3 group of individual trustees, APRA must give the body corporate 4 or group an RSE licence that specifies the class of licence granted. 5 248 Subsection 29DC(1) 6 Omit "the number of its RSE licence", substitute "its ABN". 7 Note: The heading to section 29DC is altered by omitting "licence numbers" and substituting 8 "ABNs". 9 249 Subsection 29DC(2) 10 Omit "the number", substitute "its ABN". 11 250 After paragraph 29E(1)(b) 12 Insert: 13 (ba) the RSE licensee must: 14 (i) have an ABN; or 15 (ii) have made an application for an ABN that has not been 16 refused under the A New Tax System (Australian 17 Business Number) Act 1999; 18 251 After paragraph 29E(1)(e) 19 Insert: 20 (ea) the RSE licensee must ensure that each registrable 21 superannuation entity of which it is an RSE licensee has an 22 ABN; 23 252 After paragraph 29L(2)(b) 24 Insert: 25 (ba) state the RSE licensee's and the entity's ABNs; and 26 253 Section 29MA 27 Repeal the section, substitute: 28 29MA Notice of registration 29 If APRA registers a registrable superannuation entity, APRA must 30 notify the RSE licensee of the entity in writing of the registration. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Omit "registration number", substitute "ABN". 3 Note: The heading to section 29MB is altered by omitting "registration numbers" and 4 substituting "ABNs". 5 255 Subsection 29MB(2) 6 Omit "number", substitute "ABN". [Page Break] 2 Part 4--Amendments commencing 1 July 2011 3 Life Insurance Act 1995 4 256 Subsection 12A(2) 5 Omit "in Prudential Rules or". 6 257 Subsection 12B(3) 7 Omit "in Prudential Rules or". 8 258 Subsection 15(3) 9 Omit "Prudential Rules or". 10 259 Paragraph 16B(2)(a) 11 Omit "Prudential Rules or in". 12 260 Subsection 16C(4) 13 Repeal the subsection. 14 261 Section 16H (notional subsection 34(4)) 15 Omit "Prudential Rules or". 16 262 Section 16H (notional paragraph 34(4A)(b)) 17 Omit "Prudential Rules or". 18 263 Section 16J 19 Omit "Prudential Rules or". 20 264 Subsection 16L(2) 21 Omit "Prudential Rules or". 22 265 Paragraph 16L(4)(b) 23 Omit "Prudential Rules or". 24 266 Subsection 16Q(2) 25 Omit "Prudential Rules or". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Omit "Prudential Rules or". 3 268 Paragraph 16R(6)(b) 4 Omit "Prudential Rules or". 5 269 Subsection 16U(2) 6 Omit "Prudential Rules or". 7 270 Paragraph 16U(4)(b) 8 Omit "Prudential Rules or". 9 271 Subsection 16V(3) 10 Omit "Prudential Rules or". 11 272 Paragraph 16V(7)(b) 12 Omit "Prudential Rules or". 13 273 Subsection 34(4) 14 Omit "Prudential Rules or". 15 274 Subsection 44(6) 16 Omit "by Prudential Rules or". 17 275 Paragraphs 44(7)(a) and (b) 18 Omit "by Prudential Rules or". 19 276 Subsection 52(1) 20 Omit "Prudential Rules or the", substitute "The". 21 277 Subsection 52(3) 22 Omit "Prudential Rules or". 23 278 Subsection 53(1) 24 Omit "Prudential Rules or the", substitute "The". 25 279 Subsection 53(2) 26 Omit "Prudential Rules or". [Page Break] 2 Repeal the section. 3 281 Subsection 55(2) 4 Omit "Prudential Rules or". 5 282 Subsection 55(3) 6 Omit "Prudential Rules or". 7 283 Subsection 61(1) (definition of starting amount) 8 Omit "Prudential Rules or". 9 284 Paragraph 62(3)(c) 10 Omit "Prudential Rules or". 11 285 Subsection 62(5) 12 Omit "Prudential Rules or the", substitute "The". 13 286 Subsection 236(1) (paragraphs (k) and (l) of the definition 14 of reviewable decision) 15 Omit "Prudential Rules or". 16 287 Section 252 17 Repeal the section. 18 288 Schedule (definition of Prudential Rules) 19 Repeal the definition. 20 289 Schedule (paragraph (a) of the definition of this Act) 21 Omit ", prudential standards and Prudential Rules", substitute "and 22 prudential standards". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Part 5--Application, transitional and saving 3 provisions 4 290 Application of amendment of section 20 of the Life 5 Insurance Act 1995 6 Despite the amendment of section 20 of the Life Insurance Act 1995 by 7 this Act, an application made but not determined before the 8 commencement of the amendment is, after the amendment, to be taken 9 to have been made under section 20 as amended. 10 291 Saving provision for section 11 orders (Banking Act) 11 (1) This item applies to an order that was in force under section 11 of the 12 Banking Act 1959 immediately before that section was amended by this 13 Act. 14 (2) To the extent that it relates to a provision of the Banking Act 1959 15 referred to in section 11 as amended by this Act, the order: 16 (a) continues in force after the commencement of the 17 amendments, as if it were a determination made under 18 section 11 as amended; and 19 (b) may be varied or revoked by APRA under section 11 as 20 amended. 21 (3) An order or part of an order to which subitem (2) does not apply ceases 22 to have effect at the time the amendments of section 11 made by this 23 Act commence. 24 292 Saving provision for section 7 determinations (Insurance 25 Act) 26 (1) This item applies to a determination that was in force under section 7 of 27 the Insurance Act 1973 immediately before that section was amended 28 by this Act. 29 (2) To the extent that it relates to a provision of the Insurance Act 1973 30 referred to in section 7 as amended by this Act, the determination: 31 (a) continues in force after the commencement of the 32 amendments, as if it were a determination made under 33 section 7 as amended; and [Page Break] 2 amended. 3 (3) A determination or part of a determination to which subitem (2) does 4 not apply ceases to have effect on the day after the end of the period of 5 12 months beginning on the day on which this Act receives the Royal 6 Assent, unless earlier revoked by APRA. 7 293 Saving provision for sections 125A and 125B 8 determinations (Life Act) 9 (1) This item applies to a determination that was in force under 10 section 125A or 125B of the Life Insurance Act 1995 immediately 11 before those sections were repealed by this Act. 12 (2) To the extent that it relates to a provision of the Life Insurance Act 1995 13 referred to in section 7A of the Life Insurance Act 1995 as inserted by 14 this Act, the determination: 15 (a) continues in force after the commencement of the 16 amendments, as if it were a determination made under 17 section 7A; and 18 (b) may be varied or revoked by APRA under section 7A. 19 (3) A determination or part of a determination to which subitem (2) does 20 not apply ceases to have effect at the time sections 125A and 125B are 21 repealed. 22 294 Saving provision for section 328 exemptions 23 (Superannuation Industry Supervision Act) 24 (1) This item applies to an exemption that was in force under section 328 of 25 the Superannuation Industry (Supervision) Act 1993 immediately before 26 that section was amended by this Act. 27 (2) The exemption: 28 (a) continues in force after the commencement of the 29 amendment, as if it were an exemption made under 30 section 328 as amended; and 31 (b) may be varied or revoked by the Regulator under section 328 32 as amended. 33 (3) An exemption to which subitem (2) does not apply ceases to have effect 34 at the time the amendment of section 328 made by this Act commences. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 (Superannuation Industry Supervision Act) 3 (1) This item applies to a declaration that was in force under section 332 of 4 the Superannuation Industry (Supervision) Act 1993 immediately before 5 that section was amended by this Act. 6 (2) The declaration: 7 (a) continues in force after the commencement of the 8 amendments, as if it were a declaration made under 9 section 332 as amended; and 10 (b) may be varied or revoked by APRA under section 332 as 11 amended. 12 (3) A declaration or part of a declaration to which subitem (2) does not 13 apply ceases to have effect at the time the amendment of section 332 14 made by this Act commences. 15 296 Regulations may prescribe matters 16 The Governor-General may make regulations prescribing matters of a 17 transitional nature (including prescribing any saving or application 18 provisions) in relation to the amendments or repeals made by this 19 Schedule. [Page Break] 2 Schedule 2--Financial assistance 3 4 Financial Institutions Supervisory Levies Collection Act 5 1998 6 1 Section 16 (definition of Account) 7 Repeal the definition. 8 2 Section 24 9 Repeal the section, substitute: 10 24 Application of levy, late payment penalty and repayments of 11 financial assistance 12 If levy is imposed as a result of a determination by the Minister to 13 make a grant of financial assistance, the following amounts must 14 be paid to the Commonwealth: 15 (a) amounts of the levy, and late payment penalty in respect of 16 the levy, received by the Minister; 17 (b) repayments of the financial assistance. 18 Superannuation Industry (Supervision) Act 1993 19 3 Section 228 (definition of defined benefit fund) 20 Repeal the definition. 21 4 Section 228 (definition of defined benefit member) 22 Repeal the definition. 23 5 Section 228 (definition of defined benefit pension) 24 Repeal the definition. 25 6 Section 228 (definition of eligible loss) 26 Repeal the definition, substitute: 27 eligible loss means a loss suffered by a fund as a result of 28 fraudulent conduct, or theft, but does not include an amount that B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 contributions to the fund. 3 7 Section 228 (definition of fund) 4 Repeal the definition. 5 8 After paragraph 229(1)(a) 6 Insert: 7 (aa) at the time it suffers the loss, the fund is: 8 (i) a regulated superannuation fund (other than a 9 self-managed superannuation fund); or 10 (ii) an approved deposit fund; and 11 9 At the end of section 229 12 Add: 13 (3) To avoid doubt, an application may be made under this section by 14 a trustee of a self-managed superannuation fund as long as the fund 15 met the requirements in subsection (1) at the time the fund suffered 16 the loss to which the application relates. 17 10 Section 230 18 Before "The", insert "(1)". 19 11 At the end of section 230 20 Add: 21 (2) The Minister may, by signed instrument, delegate the Minister's 22 power under subsection (1) to an SES employee, or acting SES 23 employee, in the Department. 24 (3) In exercising a power delegated under subsection (2), a delegate 25 must comply with any directions of the Minister. 26 12 At the end of section 230A 27 Add: 28 (4) The Minister may, by signed instrument, delegate the Minister's 29 function under subsection (1) to an SES employee, or acting SES 30 employee, in the Department. [Page Break] 2 must comply with any directions of the Minister. 3 13 Paragraph 231(1)(a) 4 Omit "for the purposes of the fund", substitute "for the purposes of 5 restoring the loss". 6 14 At the end of section 231 7 Add: 8 (3) To avoid doubt, the Minister may grant financial assistance to a 9 self-managed superannuation fund under this section as long as the 10 fund met the requirements in subsection 229(1) at the time the fund 11 suffered the loss to which the assistance relates. 12 (4) The Consolidated Revenue Fund is appropriated for the purposes 13 of making payments of financial assistance granted under this 14 section. 15 (5) Amounts appropriated under this section are not to be credited to 16 the Australian Prudential Regulation Authority Special Account. 17 15 Section 233 18 Before "The", insert "(1)". 19 16 Subparagraph 233(b)(i) 20 Omit "beneficiaries in the fund", substitute "persons who were 21 beneficiaries in the fund at the time the fund suffered the eligible loss". 22 17 Subparagraph 233(b)(ii) 23 Omit "the beneficiaries", substitute "those persons". 24 18 At the end of section 233 25 Add: 26 (2) Despite any law of the Commonwealth, a State or a Territory, 27 whether written or unwritten, or any provision of a trust deed or 28 other rules according to which a fund is administered: 29 (a) a trustee of a fund must comply with a condition mentioned 30 in paragraph (1)(b); and B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 complying with such a condition. 3 19 Division 3 of Part 23 (heading) 4 Repeal the heading, substitute: 5 Division 3--Repayment of financial assistance 6 20 Sections 234, 235, 236 and 237 7 Repeal the sections. 8 21 Application of amendments made by this Schedule 9 (1) The amendments made by this Schedule apply in relation to 10 applications for financial assistance made on or after the 11 commencement of this Schedule (whether or not the eligible loss to 12 which the application relates is suffered before or after the 13 commencement of this Schedule). 14 (2) However, if an application for financial assistance in relation to an 15 eligible loss was made before the commencement of this Schedule, the 16 amendments made by this Schedule do not apply in relation to any 17 further application in respect of that loss. [Page Break] 2 Schedule 3--Accounts, reporting etc. 3 obligations 4 5 Financial Institutions Supervisory Levies Collection Act 6 1998 7 1 Subparagraph 9(2)(a)(i) 8 Repeal the subparagraph, substitute: 9 (i) is specified in a notice given by APRA to the Treasurer 10 on or after the day on which an annual return that is a 11 reporting document under section 13 of the Financial 12 Sector (Collection of Data) Act 2001 and that relates to 13 the previous financial year was received by APRA; and 14 Financial Sector (Collection of Data--Consequential and 15 Transitional Provisions) Act 2001 16 2 Item 152 of Schedule 2 17 Repeal the item. 18 Income Tax Assessment Act 1936 19 3 Subsection 161(3) (including the note) 20 Omit "36A" (wherever occurring), substitute "35D". 21 Superannuation Industry (Supervision) Act 1993 22 4 Section 4 (table item for Part 4) 23 Repeal the item, substitute: 4 accounts, audit and reporting obligations for superannuation entities 24 5 Section 4 (table item for Part 13) 25 Repeal the item. 26 6 Subparagraph 6(1)(a)(vii) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 7 After subsection 29N(1) 3 Insert: 4 (1A) APRA may cancel the registration of a superannuation entity that 5 has become a self-managed superannuation fund. 6 8 Part 4 7 Repeal the Part, substitute: 8 Part 4--Accounts, audit and reporting obligations 9 for superannuation entities 10 11 35 Objects of Part 12 The objects of this Part are: 13 (a) to set out rules about the accounts, statements and audits of 14 superannuation entities; and 15 (b) to require certain reports and returns relating to 16 superannuation entities to be given to the Regulator. 17 35A Accounting records (all superannuation entities) 18 (1) Each trustee of a superannuation entity must ensure that: 19 (a) accounting records that correctly record and explain the 20 transactions and financial position of the entity are kept; and 21 (b) if the entity is a registrable superannuation entity--the 22 accounts of the entity are kept in a way that enables the 23 preparation of reporting documents referred to in section 13 24 of the Financial Sector (Collection of Data) Act 2001; and 25 (c) if the entity is a self managed superannuation fund--the 26 accounting records of the entity are kept in a way that enables 27 the following to be prepared: 28 (i) the accounts and statements of the entity referred to in 29 section 35B; 30 (ii) the returns of the entity referred to in section 35D; and 31 (d) the accounting records of the entity are kept in a way that 32 enables those accounts, statements and returns to be [Page Break] 2 Act. 3 (2) If accounting records of a superannuation entity are kept in 4 accordance with subsection (1), each trustee of the superannuation 5 entity must ensure that: 6 (a) the records are retained for at least 5 years after the end of the 7 year of income to which the transactions relate; and 8 (b) the records are kept in Australia; and 9 (c) the records are kept: 10 (i) in writing in the English language; or 11 (ii) in a form in which they are readily accessible and 12 readily convertible into writing in the English language. 13 (3) A trustee commits an offence if the trustee contravenes 14 subsection (1) or (2). 15 Penalty: 100 penalty units. 16 (4) A trustee commits an offence if the trustee contravenes 17 subsection (1) or (2). This is an offence of strict liability. 18 Penalty: 50 penalty units. 19 Note: For strict liability, see section 6.1 of the Criminal Code. 20 35B Accounts and statements (self-managed superannuation funds 21 only) 22 (1) Each trustee of a superannuation entity that is a self managed 23 superannuation fund must, in respect of each year of income of the 24 fund, ensure that the following accounts and statements are 25 prepared in respect of the entity: 26 (a) except where the regulations provide that this paragraph does 27 not apply--a statement of financial position; 28 (b) except where the regulations provide that this paragraph does 29 not apply--an operating statement; 30 (c) the accounts and statements specified in the regulations. 31 (2) The regulations may provide for or in relation to the preparation of 32 accounts and statements covered by subsection (1). If the 33 regulations do so, the accounts and statements covered by 34 subsection (1) must be prepared in accordance with the regulations. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 subsection (1) must be signed as follows: 3 (a) if there is a single corporate trustee--by: 4 (i) if there is only one director of the corporate trustee-- 5 that director; or 6 (ii) otherwise--at least 2 directors of the corporate trustee; 7 or 8 (b) if there is a group of individual trustees--by at least 2 of 9 those trustees. 10 (4) Each trustee must ensure that the accounts and statements prepared 11 in accordance with subsection (1) are retained for a period of 5 12 years after the end of the year of income to which they relate. 13 (5) A person commits an offence if the person contravenes this section. 14 Penalty: 100 penalty units. 15 (6) A person commits an offence if the person contravenes this section. 16 This is an offence of strict liability. 17 Penalty: 50 penalty units. 18 Note: For strict liability, see section 6.1 of the Criminal Code. 19 35C Audit of accounts and statements (all superannuation entities) 20 (1) For each year of income, each trustee of a superannuation entity 21 must ensure that an approved auditor is appointed to give the 22 trustee or trustees a report, in the approved form, of the operations 23 of the entity, and the RSE licensee (if any) of the entity, for that 24 year. The appointment must be made within whichever of the 25 periods set out in the regulations applies to the entity. 26 (2) If an auditor requests, in writing, a trustee of a superannuation 27 entity to give the auditor a document, each trustee of the entity 28 must ensure that the document is given to the auditor within 14 29 days of the request being made. Only documents that are relevant 30 to the preparation of the report may be requested. 31 (3) A trustee commits an offence if the trustee contravenes 32 subsection (1) or (2). 33 Penalty: Imprisonment for 2 years. [Page Break] 2 subsection (1) or (2). This is an offence of strict liability. 3 Penalty: 50 penalty units. 4 Note: For strict liability, see section 6.1 of the Criminal Code. 5 (5) Without limiting subsection (1), an approved form: 6 (a) must, if it is approved for a registrable superannuation entity, 7 either: 8 (i) relate solely to the audit of financial statements given to 9 APRA under the Financial Sector (Collection of Data) 10 Act 2001 and prepared in respect of a year of income; or 11 (ii) relate only to the audit of those statements and of any 12 other accounts and statements, prepared in respect of a 13 year of income, that are identified in the form; and 14 (b) must, if it is approved for a superannuation entity that is a 15 self managed superannuation fund--either: 16 (i) relate solely to the audit of the accounts and statements 17 referred to in subsection 35B(1) and prepared in respect 18 of a year of income; or 19 (ii) relate only to the audit of those accounts and statements 20 and of any other accounts and statements, prepared in 21 respect of a year of income, that are identified in the 22 form; and 23 (c) must include a statement by the auditor as to whether, in the 24 auditor's opinion, each trustee of the entity and the RSE 25 licensee (if any) of the entity has, during the year of income, 26 complied with the provisions of: 27 (i) this Act and the regulations; and 28 (ii) if the entity is a registrable superannuation entity--the 29 Financial Sector (Collection of Data) Act 2001, the 30 Corporations Act 2001 and the regulations under that 31 Act; 32 that are identified in the form; and 33 (d) must, if it is approved for a registrable superannuation entity 34 that is registered under Part 2B, include a statement by the 35 auditor as to whether, in the opinion of the auditor, the RSE 36 licensee of the entity: 37 (i) has complied with each risk management plan for the 38 entity that applied during that year; and B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 any risk management plan for the entity; and 3 (iii) has complied with each risk management strategy that 4 applied to the RSE licensee during that year in relation 5 to risks arising from any activities, and proposed 6 activities, as RSE licensee of the entity, and all other 7 activities, or proposed activities, relevant to those 8 activities; and 9 (iv) has adequate systems to ensure future compliance with 10 the risk management strategy for the RSE licensee in 11 relation to future risks arising from any proposed future 12 activities as RSE licensee of the entity, and all other 13 proposed future activities relevant to those activities. 14 (6) The auditor must give the report to each trustee of the entity within 15 the prescribed period after the end of the year of income. 16 (7) The auditor commits an offence if the auditor contravenes 17 subsection (6). 18 Penalty: Imprisonment for 6 months. 19 (8) The auditor commits an offence if the auditor contravenes 20 subsection (6). This is an offence of strict liability. 21 Penalty: 50 penalty units. 22 Note: For strict liability, see section 6.1 of the Criminal Code. 23 35D Trustee to lodge annual returns (self-managed superannuation 24 funds only) 25 Lodgment 26 (1) Each trustee of a superannuation entity that was a self managed 27 superannuation fund at any time during a year of income must, 28 within the reporting period, or within such longer period as the 29 Commissioner of Taxation allows, ensure that the Commissioner 30 of Taxation is given a return under this section. 31 Period for lodgment 32 (2) The reporting period is the period that begins at the end of the year 33 of income and whose length is: [Page Break] 2 paragraph; or 3 (b) if the length of the period is not prescribed--specified, by 4 legislative instrument, by the Commissioner of Taxation. 5 Form of return 6 (3) The return must: 7 (a) be in the approved form; and 8 (b) contain the information required by the form in relation to the 9 fund in respect of that year of income or in relation to another 10 year of income, or both. 11 Note: The approved form of return may require a trustee to set out the tax 12 file number of the entity. See subsection 299U(2). 13 (4) A person commits an offence if the person contravenes this section. 14 Penalty: 50 penalty units. 15 (5) A person commits an offence if the person contravenes this section. 16 This is an offence of strict liability. 17 Penalty: 25 penalty units. 18 Note: For strict liability, see section 6.1 of the Criminal Code. 19 36 Trustee to give copy of audit report to APRA (registrable 20 superannuation entities only) 21 Lodgment 22 (1) Each trustee of a registrable superannuation entity must, within the 23 prescribed period after the year of income, ensure that APRA is 24 given a copy of the report given to a trustee of the entity by an 25 approved auditor under section 35C in relation to the entity, and 26 any RSE licensee of the entity, in respect of that year of income, 27 certified to be a true copy of the report by: 28 (a) if the trustee is a body corporate--a responsible officer of the 29 body corporate; or 30 (b) if the trustee is a member of a group of individual trustees-- 31 at least one of those trustees; or 32 (c) in any other case--the trustee. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 for annual returns and other reporting documents to be given by 3 trustees to APRA. 4 (2) A trustee commits an offence if the trustee contravenes 5 subsection (1). 6 Penalty: 50 penalty units. 7 (3) A trustee commits an offence if the trustee contravenes 8 subsection (1). This is an offence of strict liability. 9 Penalty: 25 penalty units. 10 Note: For strict liability, see section 6.1 of the Criminal Code. 11 9 Part 13 12 Repeal the Part. 13 10 Paragraph 129(1)(a) 14 Repeal the paragraph, substitute: 15 (a) the person forms the opinion that it is likely that a 16 contravention of any of the following may have occurred, 17 may be occurring, or may occur, in relation to the entity: 18 (i) this Act or the regulations; 19 (ii) if the entity is a registrable superannuation entity--the 20 Financial Sector (Collection of Data) Act 2001; 21 (iii) if the entity is a registrable superannuation entity--a 22 provision of the Corporations Act 2001 listed in a 23 subparagraph of paragraph (b) of the definition of 24 regulatory provision in section 38A of this Act or 25 specified in regulations made for the purposes of 26 subparagraph (b)(xvi) of that definition, as it applies in 27 relation to superannuation interests; and 28 11 At the end of paragraph 130A(1)(c) 29 Add "or". 30 12 After paragraph 130A(1)(c) 31 Insert: 32 (d) the Corporations Act 2001; [Page Break] 2 Taxation Act 1987 3 13 Section 15DA 4 Omit "36A", substitute "35D". 5 14 Saving and application provisions 6 (1) If, immediately before the commencement of this Schedule: 7 (a) subsection 111(2); or 8 (b) subsection 112(4); 9 of the Superannuation Industry (Supervision) Act 1993 applied to the 10 trustee of a superannuation entity in relation to the accounting records 11 of the entity, that subsection continues to apply to the trustee in relation 12 to the records despite the repeal of the subsection by this Schedule. 13 (2) If, before the commencement of this Schedule, an auditor had requested 14 a trustee of a superannuation entity to give the auditor a document under 15 subsection 113(1A) of the Superannuation Industry (Supervision) Act 16 1993 and the request had not been complied with, the trustee's 17 obligation under subsection 113(1A) to ensure that the document is 18 given to the auditor continues to apply despite the repeal of the 19 subsection by this Schedule. 20 (3) Sections 35B, 35C and 35D of the Superannuation Industry 21 (Supervision) Act 1993 apply in relation to a superannuation entity in 22 respect of the year of income in which those sections commence and 23 each later year of income. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Schedule 4--Technical amendments relating 3 to legislative instruments 4 5 Australian Securities and Investments Commission Act 2001 6 1 Subsection 285(4) 7 Repeal the subsection, substitute: 8 (4) Despite subsection 12(2) of the Legislative Instruments Act 2003, 9 regulations made for the purposes of this section may be expressed 10 to take effect from a date before the regulations are registered 11 under that Act. 12 Authorised Deposit-taking Institutions Supervisory Levy 13 Imposition Act 1998 14 2 Subsection 7(3) 15 Omit "in writing", substitute "by legislative instrument". 16 3 Subsection 7(7) 17 Repeal the subsection. 18 Authorised Non-operating Holding Companies Supervisory 19 Levy Imposition Act 1998 20 4 Subsection 7(1) 21 Omit "in writing" (wherever occurring), substitute ", by legislative 22 instrument,". 23 5 Subsection 7(3) 24 Repeal the subsection. 25 Banking Act 1959 26 6 Subsection 63(8) 27 Omit "in writing", substitute "by legislative instrument". [Page Break] 2 Repeal the subsection. 3 8 Subsection 66(5) 4 Repeal the subsection, substitute: 5 (5) APRA may, by legislative instrument, determine that a specified 6 word or expression is to be a restricted word or expression for the 7 purposes of this section. 8 9 Saving provision 9 Instruments in force under subsection 66(5) of the Banking Act 1959 10 immediately before the commencement of item 8 continue in force, on 11 and after that commencement, according to their terms and subject to 12 the Legislative Instruments Act 2003, as if they had been made under 13 that provision of the Banking Act 1959 as amended by this Act. 14 Cheques Act 1986 15 10 Subsection 70A(4) 16 Repeal the subsection, substitute: 17 (4) The Reserve Bank of Australia may, by legislative instrument, 18 determine that a settlement system is a recognised settlement 19 system for the purposes of this section. The Reserve Bank of 20 Australia is to take the public interest into account in determining 21 that a settlement system is a recognised settlement system, and, in 22 doing so, is to have regard to the rules that govern the system. 23 11 Saving provision 24 Instruments in force under subsection 70A(4) of the Cheques Act 1986 25 immediately before the commencement of item 10 continue in force, on 26 and after that commencement, according to their terms and subject to 27 the Legislative Instruments Act 2003, as if they had been made under 28 that provision of the Cheques Act 1986 as amended by this Act. 29 Commonwealth Bank Sale Act 1995 30 12 Subsection 19(3) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 the Legislative Instruments Act 2003". 3 Commonwealth Borrowing Levy Collection Act 1987 4 13 Subsection 4(1) 5 Omit "(1)". 6 14 Subsection 4(1) 7 Omit "by determination published in the Gazette", substitute "by 8 legislative instrument". 9 15 Subsections 4(2) and (3) 10 Repeal the subsections. 11 Corporations Act 2001 12 16 Subsection 334(1) 13 After "AASB may", insert ", by legislative instrument,". 14 17 Subsection 334(1) 15 Omit "must be in writing and". 16 18 Subsection 334(2) 17 Repeal the subsection (including the note). 18 19 Subsection 336(1) 19 After "AUASB may", insert ", by legislative instrument,". 20 20 Subsection 336(1) 21 Omit "must be in writing and". 22 21 Subsection 336(2) 23 Repeal the subsection (including the note). 24 22 Subsection 850B(2) 25 Omit "section 48 of the Acts Interpretation Act 1901", substitute "Part 5 26 of the Legislative Instruments Act 2003". [Page Break] 2 Omit "disallowable instrument for the purposes of section 46A of the 3 Acts Interpretation Act 1901", substitute "legislative instrument". 4 24 Subsection 926A(5) 5 Omit "subsection 48(1) of the Acts Interpretation Act 1901 as applying 6 because of section 46A of that Act", substitute "the Legislative 7 Instruments Act 2003 (if the declaration is of a kind referred to in 8 subsection (4))". 9 25 Subsection 1409(4) 10 Repeal the subsection, substitute: 11 (4) Despite subsection 12(2) of the Legislative Instruments Act 2003, 12 regulations for the purposes of this section may be expressed to 13 take effect from a date before the regulations are registered under 14 that Act. 15 26 Subsection 1438(6) 16 Omit "in writing", substitute ", by legislative instrument,". 17 27 Paragraph 1438(7)(a) 18 Repeal the paragraph. 19 28 Subsection 1444(6) 20 Repeal the subsection, substitute: 21 (6) Despite subsections 12(2) and (3) of the Legislative Instruments 22 Act 2003, regulations made for the purposes of this section: 23 (a) may be expressed to take effect from a date before the 24 regulations are registered under that Act; and 25 (b) may provide for a determination of a kind referred to in 26 subsection (5) to take effect from a date before the 27 determination is made (including a date before the 28 regulations are registered under that Act). 29 29 Subsection 1445(1) 30 Omit "determination in writing, deal", substitute "legislative instrument, 31 make a determination dealing". B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Repeal the subsection, substitute: 3 (2) A determination overrides any inconsistent regulations made for 4 the purposes of section 1444, other than any such regulations that 5 are expressed to have effect despite anything in a determination 6 under this section (in which case, the determination is of no effect, 7 to the extent of the inconsistency). 8 Currency Act 1965 9 31 Subsection 13(2) 10 Omit "signed instrument", substitute "legislative instrument". 11 32 Subsection 13(6) 12 Repeal the subsection. 13 33 Subsection 13A(1) 14 Omit "signed instrument", substitute "legislative instrument". 15 34 Subsection 13A(4) 16 Repeal the subsection. 17 Financial Sector (Business Transfer and Group Restructure) 18 Act 1999 19 35 Subsection 46(1) 20 Omit "(1) APRA may, in writing", substitute "APRA may, by 21 legislative instrument". 22 36 Subsection 46(2) 23 Repeal the subsection. 24 Financial Sector (Collection of Data) Act 2001 25 37 Paragraph 13(1)(a) 26 Omit "by writing", substitute "by legislative instrument". [Page Break] 2 Repeal the subsection. 3 39 Subsection 16(1) 4 Omit "by writing", substitute "by legislative instrument". 5 40 Subsection 16(3) 6 Repeal the subsection. 7 Insurance Acquisitions and Takeovers Act 1991 8 41 Subsection 65(1) 9 Omit "signed instrument", substitute "legislative instrument". 10 42 Subsection 65(3) 11 Repeal the subsection. 12 Insurance Act 1973 13 43 Subsection 3(2) 14 Omit "signed writing", substitute "legislative instrument". 15 44 Subsection 3(3) 16 Repeal the subsection. 17 45 Subsection 68(1) 18 Omit "written", insert "legislative". 19 46 Subsection 68(10) 20 Repeal the subsection. 21 47 Subsection 70(1) 22 Omit "written", substitute "legislative". 23 48 Subsection 70(7) 24 Repeal the subsection. 25 49 Paragraph 75(2)(b) B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 legislative instrument,". 3 50 Subsection 75(9) 4 Repeal the subsection. 5 Life Insurance Supervisory Levy Imposition Act 1998 6 51 Subsection 7(3) 7 Omit "in writing", substitute "by legislative instrument". 8 52 Subsection 7(7) 9 Repeal the subsection. 10 Payment Systems and Netting Act 1998 11 53 Subsection 9(1) 12 After "The Reserve Bank may", insert ", by legislative instrument,". 13 54 Subsection 9(3) 14 Repeal the subsection, substitute: 15 (3) An approval may be given subject to the terms and conditions 16 specified in the approval. 17 Retirement Savings Account Providers Supervisory Levy 18 Imposition Act 1998 19 55 Subsection 7(3) 20 Omit "in writing", substitute "by legislative instrument". 21 56 Subsection 7(7) 22 Repeal the subsection. 23 Superannuation Industry (Supervision) Act 1993 24 57 Subsection 11E(1) 25 Omit "(1)". [Page Break] 2 Omit "determines in writing", substitute ", by legislative instrument, 3 determines". 4 59 Subsection 11E(2) 5 Repeal the subsection. 6 60 Subsection 50(6) 7 Omit "49A of the Acts Interpretation Act 1901", substitute "14 of the 8 Legislative Instruments Act 2003". 9 Note: The heading to subsection 50(6) is replaced by the heading "Section 14 of the 10 Legislative Instruments Act 2003". 11 61 Paragraph 66(2)(d) 12 Omit "written determination", substitute "legislative instrument". 13 62 Subsection 66(2B) 14 Repeal the subsection. 15 63 Subparagraph 67(3)(b)(ii) 16 Omit "written determination made", substitute "determination made, by 17 legislative instrument,". 18 64 Subsection 67(4) 19 Repeal the subsection. 20 65 Paragraph 71(1)(f) 21 Omit "written determination", substitute "legislative instrument". 22 66 Subsection 71(6) 23 Repeal the subsection. 24 67 Subparagraph 95(3)(b)(ii) 25 Omit "written determination made", substitute "determination made, by 26 legislative instrument,". 27 68 Subsection 95(4) 28 Repeal the subsection. B06RC312.v49.doc 12/6/2007 4:04 PM [Page Break] 2 Omit "written determination made", substitute "determination made, by 3 legislative instrument,". 4 70 Subsection 97(4) 5 Repeal the subsection. 6 71 Subsection 142(1) 7 Omit "writing", substitute "legislative instrument". 8 72 Subsection 142(8) 9 Repeal the subsection. 10 73 Subsection 142(9) 11 Omit "Subsection (8)", substitute "Section 42 of the Legislative 12 Instruments Act 2003". 13 Superannuation Supervisory Levy Determination Validation 14 Act 2000 15 74 Subsection 4(2) 16 Omit "48(2) of the Acts Interpretation Act 1901", substitute "12(2) of 17 the Legislative Instruments Act 2003". 18 Superannuation Supervisory Levy Imposition Act 1998 19 75 Subsection 7(3) 20 Omit "in writing", substitute "by legislative instrument". 21 76 Subsection 7(5) 22 Repeal the subsection.