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FINANCIAL SECTOR REFORM (AMENDMENTS AND TRANSITIONAL PROVISIONS) ACT (NO. 1) 1999 NO. 44, 1999 - SCHEDULE 8--Transitional,

saving and application provisions Part 1--Transitional provisions relating to transfer from State and Territory regulatory regimes

Division 1--Interpretation

1 Definitions

(1) In this Part:

AFIC means the Australian Financial Institutions Commission.

AFIC Code means any of the following Codes of a State or Territory:

APRA means the Australian Prudential Regulation Authority.

APRA Act means the Australian Prudential Regulation Authority Act 1998 .

APRA employee means a person appointed under section 45 of the APRA Act.

ASIC means the Australian Securities and Investments Commission.

FIC body means a body that is a society, or a special services provider, as defined in section 3 of any of the Financial Institutions Codes.

Financial Institutions Code means any of the following Codes of a State or Territory:

Friendly Societies Code means any of the following Codes of a State or Territory:

friendly society means a body that is a society for the purposes of any of the Friendly Societies Codes.

SSA means any of the following:

State or Territory employee means a person who, immediately before the transfer date, is:

Territory means the Australian Capital Territory or the Northern Territory.

transfer agreement means an agreement entered into:

that provides for matters connected with the transfer of staff, assets or liabilities from AFIC or an SSA to APRA or ASIC.

transfer date has the meaning given by section 2 (which is at the front of this Act).

transferring body means a body that, immediately before the transfer date, was:

(2) In this Part, a reference to a transfer agreement determining or specifying a person, thing or other matter includes a reference to a person or persons determining or specifying that person, thing or matter, as permitted by that transfer agreement.

Division 2--Transitional provisions relating to staff

2 Transfer of State or Territory employees to APRA

(1) A transfer agreement may determine that specified State or Territory employees become APRA employees on a specified date, not being a date before the transfer date. In this Division, the date so specified is the agreed date in relation to the employees concerned.

(2) The agreement has effect accordingly, to the extent that it is within the Commonwealth's legislative power to give the agreement that effect.

3 Terms and conditions of transferred staff

(1) APRA is to determine the terms and conditions applying to a person who becomes an APRA employee as mentioned in item 2 as if the person had actually been appointed under section 45 of the APRA Act. The terms and conditions of employment must not be less favourable than those that applied to the person immediately before the agreed date.

(2) The person is entitled to retain, as an APRA employee, all the benefits that had accrued to the person in respect of his or her length of State or Territory service up to the agreed date, as if those benefits had accrued in respect of the person's position as an APRA employee. For this purpose, the person's State or Territory service is:

(3) The person's service as an APRA employee is taken, for all purposes, to have been continuous with the person's service, immediately before the agreed date, as a State or Territory employee.

4 Statement of accrued benefits

(1) A transfer agreement may determine that APRA is to be given a statement of the benefits to which a person who becomes an APRA employee as mentioned in item 2 has an accrued entitlement in respect of his or her position as a State or Territory employee.

(2) In any proceedings relating to subitem 3(2), the statement is prima facie evidence of the matters set out in the statement.

(3) Item 2 has effect in relation to the person even if the statement is not given as required.

Division 3--Transfer of assets and liabilities

5 Transfer of assets

(1) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:

(2) The agreement has effect accordingly, to the extent that it is within the Commonwealth's legislative power to give the agreement that effect.

(3) This item does not prevent assets being transferred to APRA or ASIC otherwise than in accordance with a transfer agreement.

(4) In this item:

assets includes records.

6 Transfer of liabilities

(1) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:

(2) The agreement has effect accordingly, to the extent that it is within the Commonwealth's legislative power to give the agreement that effect.

(3) This item does not prevent liabilities being transferred to APRA or ASIC otherwise than in accordance with a transfer agreement.

Division 4--Transitional provisions relating to operation of the Banking Act 1959

7 Certain bodies taken to have authorities to carry on banking business

(1) This item applies to the following bodies:

(2) APRA may, in writing, determine that this item applies to CCWPSBL, but only if the Treasurer and the Queensland Minister responsible for the administration of the Financial Intermediaries Act 1996 of Queensland have agreed that CCWPSBL should be covered by the Banking Act 1959 from the transfer date.

(3) On the transfer date, a body to which this item applies is taken to have been granted an authority under subsection 9(3) of the Banking Act 1959 .

(4) APRA may, in writing, determine conditions to which the authority is subject. The determination has effect accordingly.

(5) The authority may be dealt with under the Banking Act 1959 as if it had actually been granted under subsection 9(3) of that Act.

(6) Conditions determined under subitem (4) may be dealt with under the Banking Act 1959 as if they were imposed under subsection 9(4) of that Act.

(7) Subsection 9(7) of the Banking Act 1959 does not apply to:

(8) APRA must give the body written notice of the following:

(9) APRA may also give notice of a matter referred to in paragraph (8)(a) or (b) in such other way as APRA considers appropriate.

8 Bodies taken to have consent for use of certain expressions

(1) A body that, immediately before the transfer date:

is taken, on the transfer date, to have been granted a consent under section 66 of the Banking Act 1959 covering the body trading or carrying on business under that name or title. The consent may be dealt with under that Act as if it had actually been granted under section 66 of that Act.

(2) An exemption in force under subsection 144(4) of a Financial Institutions Code immediately before the transfer date continues to have effect from that date, and may be dealt with, as if it were a consent under section 66 of the Banking Act 1959 . Any conditions to which the exemption was subject immediately before the transfer date are to be taken, from that date, to be, and may be dealt with as if they were, conditions applying under section 66 of the Banking Act 1959 .

9 Unclaimed money

(1) This item applies to each body that is taken by subitem 7(3) to have been granted an authority under subsection 9(3) of the Banking Act 1959 .

(2) An amount of money in respect of which notification action has been taken before the transfer date by a body to which this item applies under an unclaimed money law is not unclaimed moneys for the purposes of section 69 of the Banking Act 1959 .

(3) For the avoidance of doubt, it is declared that, subject to subitem (2), an amount of money that, on the transfer date, satisfies the description of unclaimed moneys in section 69 of the Banking Act 1959 is unclaimed moneys for the purposes of that section even though, for any reason, the amount was not, immediately before that date, unclaimed money, or unclaimed moneys, within the meaning of an unclaimed money law.

(4) If, but for this item, a body to which this item applies would be required to deliver a Commonwealth unclaimed money statement on or before the 31 March next following the transfer date, then:

(5) The Treasurer, or an authorized officer (within the meaning of section 69 of the Banking Act 1959 ), may, in relation to a specified body to which this item applies, determine in writing that subsection 69(5) of the Banking Act 1959 has effect in relation to the first Commonwealth unclaimed money statement delivered by the body after the transfer date as if it required the amount shown in the statement to be paid to the Commonwealth:

(6) A person must not, under subitem (5), make a determination that would result in an amount being required to be paid to the Commonwealth more than 5 years after the date on which the amount would otherwise have had to be paid to the Commonwealth.

(7) A determination under subitem (5) has effect accordingly.

(8) In this item:

Commonwealth unclaimed money statement means a statement under subsection 69(3) of the Banking Act 1959 .

notification action means:

unclaimed money law means:

Division 5--Transitional provisions relating to operation of the Life Insurance Act 1995

10 Definitions

In this Division:

amended Act means the Life Insurance Act 1995 as in force on and after the transfer date.

eligible benefit fund means a fund:

existing benefit fund rules means rules applying to an eligible benefit fund immediately before the transfer date.

health insurance business has the same meaning as in section 67 of the National Health Act 1953 .

old Act means the Life Insurance Act 1995 as in force immediately before the transfer date.

transferring friendly society means a company that is taken, by subitem 11(1), to have been granted registration under section 21 of the amended Act.

11 Companies taken to be registered etc.

(1) A company (within the meaning of the amended Act) in relation to which all the following conditions are satisfied is taken, on the transfer date, to have been granted registration under section 21 of the amended Act:

For the purposes of paragraph (c), a company was in winding up immediately before the transfer date if, at that time, an appointment of a liquidator of the company was in force in accordance with Part 9 of the Friendly Societies Code of a State or Territory.

(2) APRA must, as soon as practicable after the transfer date, issue to the company a certificate under subsection 21(5) of the amended Act.

(3) The registration may be dealt with under the amended Act as if it had actually been granted under section 21 of that Act.

(4) The regulations may provide for the company to cease to be registered. Regulations for this purpose have effect in addition to the provisions in sections 26 and 27 of the amended Act about cancellation of a company's registration.

(5) If, immediately before the transfer date, the company carried on business:

APRA is taken, on the transfer date, to have made a declaration under section 12A of the amended Act that the business is to be treated as if it were life insurance business.

(6) If, immediately before the transfer date, the company carried on business:

APRA is taken, on the transfer date, to have made a declaration under section 12B of the amended Act that the business is to be treated as if it were life insurance business.

(7) The eligible benefit funds of the company are taken to be benefit funds established by the company in accordance with the requirements of the amended Act (as it applies subject to Part 2A of that Act).

(8) The existing benefit fund rules for the eligible benefit funds of the company are taken, on the transfer date, to have been approved under section 16L of the amended Act and to have come into force under section 16N of the amended Act on that date. This approval has effect subject to subitem (10).

(9) A provision of the existing benefit fund rules as so taken to be approved is not effective to the extent that the provision is inconsistent with:

(10) If the existing benefit fund rules for an eligible benefit fund of the company are taken to have an approval by subitem (8), APRA may determine, in writing, that the approval ceases to have effect if:

A determination under this subitem can only be made during the period beginning on the day that is 18 months after the transfer date and ending on the day that is 30 months after the transfer date.

(11) If APRA makes a determination under subitem (10) in relation to an approval, the approval that those rules are taken to have by subitem (8) ceases to have effect on the day the determination is made.

(12) A reference in section 236 of the amended Act to a reviewable decision includes a reference to a decision to make a determination under subitem (10).

(13) Subject to subsection 77(6) of the amended Act, for the purposes of the amended Act, the financial year of the company is the period that, immediately before the transfer date, was the financial year of the company for the purposes of the Friendly Societies Code under which the company was then registered.

(14) APRA may give notice of any of the following matters in such way as APRA considers appropriate:

12 Transitional provision relating to assignment of interests in benefit funds

If:

that assignment is taken, for the purposes of the amended Act, to have been made in accordance with subsection 200(2) of the amended Act.

13 Transitional provision relating to registration of policies

Nothing in section 227 of the amended Act applies to a policy issued before the transfer date that was not a life policy for the purposes of the old Act when it was issued.

14 Continued effect of declarations under section 12 of the old Act

(1) A declaration in force immediately before the transfer date for the purposes of paragraph 12(2)(a) of the old Act continues to have effect on and after the transfer date as if it were a declaration under subsection 12(2) of the amended Act.

(2) A declaration in force immediately before the transfer date for the purposes of paragraph 12(2)(b) of the old Act continues to have effect on and after the transfer date as if it were a declaration under subsection 12A(1) of the amended Act.

15 Transitional provisions relating to auditors

(1) An approval of a person that is in force under subsection 85(1) of the old Act immediately before the transfer date continues to have effect on and after the transfer date as if it were an approval of the person under paragraphs 85(1)(a) and (b) of the amended Act.

(2) If an appointment (including an appointment that is taken to have been made) of a person as an auditor of a friendly society is in force under any of the Friendly Societies Codes immediately before the transfer date and that friendly society is a transferring friendly society, the person is taken, on the transfer date:

(3) At any time while 2 or more persons are taken by subitem (2) to have been appointed as auditors of the same transferring friendly society, the amended Act applies in relation to the transferring friendly society as if any reference to the auditor, or the approved auditor, of a life company were instead a reference to any of the persons so taken to have been appointed.

(4) An approval or appointment that is taken by subitem (2) to have been granted or made may be dealt with under the amended Act:

(5) Subsection 87(1) of the amended Act does not apply to an appointment that is taken by paragraph (2)(b) to have been made.

16 Transitional provisions relating to actuaries

(1) If an appointment of a person as an actuary to a friendly society is in force under any of the Friendly Societies Codes immediately before the transfer date and that friendly society is a transferring friendly society, the person is taken, on the transfer date:

(2) An approval or appointment that is taken by subitem (1) to have been granted or made may be dealt with under the amended Act:

(3) Subsection 95(1) of the amended Act does not apply to an appointment that is taken by paragraph (1)(b) to have been made.

17 Unclaimed money

(1) An amount of money in respect of which notification action has been taken before the transfer date under an unclaimed money law is not an amount of unclaimed money for the purposes of section 216 of the amended Act.

(2) For the avoidance of doubt, it is declared that, subject to subitem (1), an amount of money that, on the transfer date, satisfies the description of unclaimed money in section 216 of the amended Act is unclaimed money for the purposes of that section even though, for any reason, the amount was not, immediately before the transfer date, unclaimed money, or unclaimed moneys, within the meaning of an unclaimed money law.

(3) If, but for this item, a transferring friendly society would be required to deliver a Commonwealth unclaimed money statement on or before the 31 March next following the transfer date, then:

(4) ASIC may, in relation to a specified transferring friendly society, determine in writing that subsection 216(3) of the amended Act has effect in relation to the first Commonwealth unclaimed money statement delivered by the transferring friendly society after the transfer date as if it required the amount worked out under subsection 216(6) of that Act to be paid to the Commonwealth:

(5) ASIC must not, under subitem (4), make a determination that would result in an amount being required to be paid to the Commonwealth more than 5 years after the date on which the amount would otherwise have had to be paid to the Commonwealth.

(6) A determination under subitem (4) has effect accordingly.

(7) In this item:

Commonwealth unclaimed money statement means a statement under subsection 216(1) of the amended Act.

notification action means:

unclaimed money law means:

18 Effect of amendments etc. on treatment of business that is not currently eligible insurance business for the purposes of Division 8A of Part III of the Income Tax Assessment Act 1936

If, immediately before the transfer date, a kind of business was not eligible insurance business for the purposes of Division 8A of Part III of the Income Tax Assessment Act 1936 , then business of that kind that is carried on after the transfer date is not to be taken to be eligible insurance business for the purposes of that Division merely because of all or any of the following:

Division 6--Other transitional provisions

19 Transitional provision relating to completion of transfers of engagements and mergers under State and Territory laws

(1) This item applies if a law of a State or Territory (a State or Territory transitional law ) provides for a transfer of engagements, or a merger, commenced before the transfer date under the Financial Institutions Code or the Friendly Societies Code of the State or Territory to be completed, or to be given effect, after the transfer date in accordance with that law.

(2) A transfer of engagements or a merger to which a State or Territory transitional law applies may be completed, or be given effect, after the transfer date in accordance with that law despite anything in the Banking Act 1959 , the Life Insurance Act 1995 or any other law of the Commonwealth prescribed by the regulations for the purposes of this subitem.

(3) Regulations for the purposes of this subitem may deal with how specified laws of the Commonwealth apply in relation to the situation resulting from a transfer of engagements, or a merger, that is completed or given effect in accordance with a State or Territory transitional law.

(4) For the purposes of this item, a transfer of engagements was commenced before the transfer date if, before that date:

(5) For the purposes of this item, a merger was commenced before the transfer date if, before that date, one of the following conditions was satisfied in relation to each transferring body involved:

20 Treatment of determinations under section 29 of the Social Security Act 1991

A determination in force immediately before the transfer date for the purposes of section 29 of the Social Security Act 1991 as then in force is to be taken, on and after the transfer date, to be an approval for the purposes of section 29 of that Act as amended by this Act.

Part 2--Transitional provisions relating to other amendments

21 Treatment of approvals of banks and authorisations of persons under subsection 4(1) of the High Court of Australia Act 1979

An approval of a bank, or an authorisation of a person, that is in force immediately before the commencement of item 21 of Schedule 6 for the purposes of the definition of approved bank in subsection 4(1) of the High Court of Australia Act 1979 as then in force is to be taken, after that commencement, to be an approval of the bank or an authorisation of the person for the purposes of the definition of ADI in subsection 4(1) of that Act as amended by this Act.

Part 3--Regulations

22 Regulations may deal with transitional, saving or application matters

(1) The regulations may deal with matters of a transitional, saving or application nature relating to:

(2) Without limiting subitem (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:

(3) Without limiting subitems (1) and (2), the regulations may provide for the continued effect, for the purposes of a provision of a law of the Commonwealth, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a law of a State or Territory. In the case of an instrument or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.

(4) Without limiting subitem (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:

(5) Despite subsection 48(2) of the Acts Interpretation Act 1901 , regulations for the purposes of this item:

(6) In this item, a reference to a law , whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.

(7) In this item:

replaced legislation means:

23 Power to make regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters required or permitted by this Act to be prescribed.

(32/99)

[ Minister's second reading speech made in--

House of Representatives on 11 March 1999

Senate on 30 March 1999 ]


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