Commonwealth Numbered Acts Commonwealth Numbered Acts1 Paragraph 65A(1)(a)
Repeal the paragraph, substitute:
(a) a contravention of:
(i) a provision of this Act, the regulations or the prudential standards; or
(ii) a condition imposed or specified under this Act; or
(iii) a direction by APRA under this Act; or
2 Paragraphs 65A(1)(b), (c), (d), (e) and (f)
Omit "or condition", substitute ", condition or direction".
3 Paragraph 65A(4)(a)
Omit "section 7, 8, 66, 66A or 67", substitute "this Act, the regulations or the prudential standards".
4 Paragraph 65A(4)(b)
Omit "on a consent given under subsection 63(1);", substitute "imposed or specified under this Act to do; or".
5 After paragraph 65A(4)(b)
Insert:
(c) by a direction by APRA under this Act to do;
6 Subsection 65A(9)
Omit "subsection (1), (4) or (7)", substitute "this section".
7 Section 129D
Repeal the section, substitute:
Restraining injunctions
(1) If a person (the perpetrator ) has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:
(a) a contravention of:
(i) this Act, the regulations or the prudential standards; or
(ii) a condition imposed or specified under this Act; or
(iii) a direction by APRA under this Act; or
(b) attempting to contravene the Act, regulations, standards, condition or direction; or
(c) aiding, abetting, counselling or procuring a person to contravene the Act, regulations, standards, condition or direction; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the Act, regulations, standards, condition or direction; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the Act, regulations, standards, condition or direction; or
(f) conspiring with others to contravene the Act, regulations, standards, condition or direction;
the Federal Court may grant an injunction in accordance with subsection (2).
Nature of injunction
(2) If granted, the injunction:
(a) is to restrain the perpetrator from engaging in the conduct; and
(b) if in the opinion of the court it is desirable to do so, may also require the perpetrator to do any act or thing.
The court may only grant the injunction on the application of APRA, and may grant it on such terms as the court thinks appropriate.
Performance injunctions
(3) If a person (the unwilling person ) has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by:
(a) this Act, the regulations or the prudential standards; or
(b) a condition imposed or specified under this Act; or
(c) a direction by APRA under this Act;
to do, the Federal Court may, on the application of APRA, grant an injunction, on such terms as the court thinks appropriate, requiring the unwilling person to do that act or thing.
Consent injunctions
(4) If an application for an injunction under subsection (1) or (3) has been made, the Federal Court may, if the court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the court is satisfied that that subsection applies.
Interim injunctions
(5) If in the opinion of the Federal Court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1).
Variation or discharge of injunctions
(6) The Federal Court may discharge or vary an injunction granted under this section.
Restraining injunctions
(7) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.
Performance injunctions
(8) The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.
Damages undertakings
(9) If APRA applies to the Federal Court for the grant of an injunction under this section, the court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.
Damages orders
(10) If the Federal Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.
This section extends Federal Court's powers
(11) The powers this section gives the Federal Court are additional to (and do not limit) its other powers.
Part 3 -- Life Insurance Act 1995
8 Section 235
Repeal the section, substitute:
Restraining injunctions
(1) If a person (the perpetrator ) has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:
(a) a contravention of this Act, a condition imposed or specified under this Act (including a condition mentioned in subsection 208(3)) or a direction by APRA or ASIC under this Act; or
(b) attempting to contravene the Act, condition or direction; or
(c) aiding, abetting, counselling or procuring a person to contravene the Act, condition or direction; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the Act, condition or direction; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the Act, condition or direction; or
(f) conspiring with others to contravene the Act, condition or direction;
the Court may grant an injunction in accordance with subsection (2).
Nature of injunction
(2) If granted, the injunction:
(a) is to restrain the perpetrator from engaging in the conduct; and
(b) if in the opinion of the Court it is desirable to do so, may also require the perpetrator to do any act or thing.
The Court may only grant the injunction on the application of the Regulator, and may grant it on such terms as the Court thinks appropriate.
Performance injunctions
(3) If a person (the unwilling person ) has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act, a condition imposed or specified under this Act or a direction by APRA or ASIC under this Act to do, the Court may, on the application of the Regulator, grant an injunction, on such terms as the Court thinks appropriate, requiring the unwilling person to do that act or thing.
Consent injunctions
(4) If an application for an injunction under subsection (1) or (3) has been made, the Court may, if the Court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.
Interim injunctions
(5) If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
Variation or discharge of injunctions
(6) The Court may discharge or vary an injunction granted under this section.
Restraining injunctions
(7) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.
Performance injunctions
(8) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.
Damages undertakings
(9) If the Regulator applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.
Damages orders
(10) If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.
This section extends Federal Court's powers
(11) The powers this section gives the Court are additional to (and do not limit) its other powers.
Part 4 -- Superannuation Industry (Supervision) Act 1993
9 Paragraphs 315(1)(a), (b), (c), (d), (e) and (f)
After "Act", insert ", a condition imposed on an RSE licence or a direction given under this Act by APRA or the Regulator".
10 Subsection 315(3)
After "this Act", insert ", a condition imposed on an RSE licence or a direction given under this Act by APRA or the Regulator".
11 Subsection 315(6)
Omit "subsection (1), (3) or (5)", substitute "this section".
12 After subsection 315(11)
Insert:
This section extends Federal Court's powers
(11A) The powers this section gives the Court are additional to (and do not limit) its other powers.
Part 5 -- First Home Saver Accounts Act 2008
13 At the end of Division 2 of Part 7
Add:
120A Injunctions for breach of conditions on authorisations
(1) The Superannuation Industry (Supervision) Act 1993 applies in accordance with subsection 114(2) with the modification set out in this section.
(2) Treat the references in section 315 of the Superannuation Industry (Supervision) Act 1993 to a condition imposed on an RSE licence as references to a condition imposed on an authorisation as an FHSA provider.
14 Application
The amendments made by this Schedule apply in relation to applications for injunctions made on or after the commencement of this Schedule, whether the conduct, refusal or failure that is the subject of the application occurred before, on or after that commencement.
[ Minister's second reading speech made in--
House of Representatives on 19 March 2009
Senate on 15 June 2009 ]
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