Commonwealth Numbered Acts

FINANCIAL SECTOR REFORM (AMENDMENTS AND TRANSITIONAL PROVISIONS) ACT 1998 NO. 54, 1998 - SCHEDULE 1--Amendment

1 Title

Omit " establish an Australian Securities Commission ", substitute " provide for the Australian Securities and Investments Commission ".

2 Paragraph 1(1)(a)

Repeal the paragraph, substitute:

(a) to provide for the Australian Securities and Investments Commission which will administer such laws of:

(i) the Commonwealth; and

(ii) the Capital Territory; and

(iii) the States and the other Territories;

as confer functions and powers under those laws on the Commission; and

Repeal the subsection, substitute:

(2) In performing its functions and exercising its powers, the Commission must strive to:

(a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and

(b) promote the confident and informed participation of investors and consumers in the financial system; and

(c) achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and

(d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and

(e) receive, process and store, efficiently and quickly, the information given to the Commission under the laws that confer functions and powers on it; and

(f) ensure that information is available as soon as practicable for access by the public; and

(g) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it.

After " Securities ", insert " and Investments ".

5 Subsection 1B(1)

After "This Act", insert "(except section 12A)".

6 Subsection 5(1)

Insert:

APRA means the Australian Prudential Regulation Authority.

7 Subsection 5(1) (definition of Commission )

Repeal the definition, substitute:

Commission means the Australian Securities and Investments Commission.

8 At the end of section 7

Add:

(2) From the commencement of this subsection, the Commission is to be known as the Australian Securities and Investments Commission.

9 Subsection 9(3A)

Repeal the subsection.

10 After section 12

Insert:

SECT 12A Functions and powers--non-national scheme laws (1) The Commission has the functions and powers that are conferred on it by or under the following Acts:

(a) the Insurance Act 1973 ;

(b) the Insurance (Agents and Brokers) Act 1984 ;

(c) the Insurance Contracts Act 1984 ;

(d) the Superannuation (Resolution of Complaints) Act 1993 ;

(e) the Life Insurance Act 1995 ;

(f) the Retirement Savings Accounts Act 1997 ;

(g) the Superannuation Industry (Supervision) Act 1993 .

(3) The Commission has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by:

(a) promoting the adoption of approved industry standards and codes of practice; and

(b) promoting the protection of consumer interests; and

(c) promoting community awareness of payments system issues; and

(d) promoting sound customer-banker relationships, including through:

(i) monitoring the operation of industry standards and codes of practice; and

(ii) monitoring compliance with such standards and codes.

(5) The Commission may:

(a) advise the Minister about any changes to a law listed in subsection (1) that the Commission thinks are needed to help overcome any problems that the Commission has encountered in the course of performing its functions or exercising any of its powers under that law; and

(b) advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3).

Note: The heading to section 11 is altered by adding at the end " --national scheme laws ".

Add:

SECT 93AA Enforcement of undertakings (1) The Commission may accept a written undertaking given by a person in connection with a matter in relation to which the Commission has a function or power under this Act.

(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.

(3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).

(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:

(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

Add "or".

13 At the end of subsection 102(2)

Add:

; or (d) a person appointed by APRA under section 45 of the Australian Prudential Regulation Authority Act 1998 .

Insert:

(2A) The Commission must not delegate a function or power to an APRA staff member within the meaning of the Australian Prudential Regulation Authority Act 1998 , unless the Chief Executive Officer of APRA has agreed to the delegation in writing.

15 At the end of section 102

Add:

(8) If this section is being applied as a law of a State, it applies only in relation to functions and powers conferred by a national scheme law.

16 Section 123

Repeal the section, substitute:

SECT 123 Chairperson to disclose certain interests to Minister The Chairperson must give written notice to the Minister of all direct or indirect pecuniary interests that the Chairperson has or acquires in:

(a) a business carried on in Australia or a body corporate carrying on such a business; or

(b) a pooled superannuation trust (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) or a body corporate that is a trustee of such a trust; or

(c) a superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) or an approved deposit fund (within the meaning of that Act) or a body corporate that is a trustee of such a fund; or

(d) an RSA or an RSA provider (within the meaning of the Retirement Savings Accounts Act 1997 ).

Omit all the words from and including "disclosure information" to and including "this jurisdiction", substitute:

disclosure information:

(a) given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction; or

(b) that is protected information.

Insert:

(1A) Disclosing summaries of information or statistics derived from information is authorised use and disclosure of the information provided that information relating to any particular person cannot be found out from those summaries or statistics.

(1B) Disclosing:

(a) the names of entities that are RSA providers or RSA institutions for the purposes of the RSA Act; or

(b) the addresses at which business relating to entities referred to in paragraph (a) is conducted; or

(c) any other information that is reasonably necessary to enable members of the public to contact a person who performs functions in relation to an RSA (within the meaning of the RSA Act);

(1C) Disclosing any or all of the following information about an RSA provider is authorised use and disclosure of the information:

(a) whether or not the RSA provider has lodged a return under section 44 of the RSA Act in respect of a particular year of income;

(b) whether or not a notice, or a particular kind of notice, has been given under section 92 of the RSA Act in relation to an RSA provider in respect of a particular year of income.

(a) the names of:

(i) superannuation funds, approved deposit funds and pooled superannuation trusts that are superannuation entities for the purposes of the SIS Act; or

(ii) superannuation entities that are non-complying superannuation funds or non-complying approved deposit funds, or are not pooled superannuation trusts, as the case may be, in relation to a specified year of income for the purposes of Part IX of the Income Tax Assessment Act; or

(iii) superannuation funds and approved deposit funds that are eligible roll-over funds for the purposes of Part 24 of the SIS Act; and

(b) the addresses at which business relating to funds or trusts referred to in paragraph (a) is conducted; and

(c) particulars of names of beneficiaries and amounts set out in a statement of unclaimed money given to the Commission under section 225 of the SIS Act; and

(d) any other information that is reasonably necessary to enable members of the public to contact a person who performs functions in relation to a superannuation entity (within the meaning of the SIS Act);

(1E) Disclosing any or all of the following information about a fund, scheme or trust (of a type referred to in subsection (1D)) is authorised use and disclosure of the information:

(a) whether or not the trustee of the fund, scheme or trust has lodged a return under section 36 of the SIS Act in respect of a particular year of income;

(b) whether or not a decision has been made by APRA to give a notice, or a particular kind of notice, in relation to the fund, scheme or trust under section 40 of the SIS Act in relation to a particular year of income;

(c) whether or not a notice or a particular kind of notice has been given by APRA or the Commission under section 40 or 254 of the SIS Act in relation to the fund, scheme or trust, in respect of a particular year of income;

(d) in the case of a superannuation fund--whether or not the trustee of the fund has told APRA that the trustee is willing to accept a particular kind of contribution.

Insert:

(2A) Disclosing information to one of the following is authorised use and disclosure of the information:

(a) the Minister;

(b) the Secretary to the Department for the purpose of advising the Minister, or an officer authorised for that purpose;

(c) APRA.

Add "or".

21 After paragraph 127(4)(a)

Insert:

(aa) will enable or assist:

(i) the Australian Bureau of Criminal Intelligence; or

(ii) the Australian Financial Institutions Commission; or

(iii) the Superannuation Complaints Tribunal;

to perform any of its functions or powers; or

(ab) will enable or assist an officer of the Commonwealth Attorney-General's Department who is in the office known as the Office of Law Enforcement Co-ordination to perform any of his or her functions or powers; or

Insert:

or (d) will enable or assist a prescribed professional disciplinary body to perform 1 of its functions;

Omit "agency or government by a person", insert "agency, government or disciplinary body by a person".

24 Subsection 127(4B)

After "subsection (4C)", insert "(including a body corporate that is a foreign company)".

25 After subparagraph 127(4B)(a)(i)

Insert:

(ia) the business law of a foreign country; or

Insert:

(4EA) If the Commission discloses information to a disciplinary body under paragraph (4)(d), the body or a member of the body:

(a) must not disclose the information to any other person; and

(b) must not use the information for any purpose other than for deciding whether or not to take disciplinary or other action or for taking that action.

Penalty: Imprisonment for 2 years.

Insert:

(ia) the business law of a foreign country; or

Omit "(2)", substitute "(1A), (1B), (1C), (ID), (IE), (2), (2A)".

29 At the end of section 127

Add:

(8) If this section is being applied as a law of a State, it applies only in relation to the performance of the Commission's functions and the exercise of the Commission's powers under a national scheme law.

(9) In this section:

Income Tax Assessment Act means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.

protected information means information disclosed or obtained, or a document given or produced, (whether before or after the commencement of this section) for the purposes of a function in section 12A and relating to the affairs of:

(a) a body regulated by the Commission; or

(b) a body corporate (including a body corporate that has ceased to exist) that has at any time been, or is, related (within the meaning of the Corporations Law) to a body regulated by the Commission; or

(c) a person who has been, is, or proposes to be, a customer of a body regulated by the Commission;

RSA Act means the Retirement Savings Accounts Act 1997.

SIS Act means the Superannuation Industry (Supervision) Act 1993 .

30 Paragraph 135(1)(a)

Omit "under a national scheme law of this or any other jurisdiction".

31 Subsection 135(4)

Repeal the subsection, substitute:

(4) This section and subsection 18(3) of the Commonwealth Authorities and Companies Act 1997 have effect subject to:

(a) a provision that a national scheme law of this or any other jurisdiction makes about money or property that vests in the Commission under such a law; and

(b) Part 22 of the Superannuation Industry (Supervision) Act 1993 .

Add:

(2) The report must also set out information about the exercise during the year of the Commission's powers under Part 15 of the Retirement Savings Accounts Act 1997 and under Part 29 of the Superannuation Industry (Supervision) Act 1993 .

(3) In relation to the Commission's functions under the Insurance (Agents and Brokers) Act 1984 , the report must include information about:

(a) the number of persons registered by the Commission for the time being as foreign insurance agents, life insurance brokers or general insurance brokers, respectively; and

(b) any suspensions or cancellations effected by the Commission under section 25 or 31H of that Act during the period to which the report relates; and

(c) any prosecutions for offences against that Act during that period; and

(d) any insolvency of an insurance intermediary that came to the Commission's notice during that period; and

(e) any other matters (if any) as are prescribed.

After " Securities ", insert " and Investments ".

34 Paragraph 246(1)(f)

After " Securities ", insert " and Investments ".

35 At the end of the Act

Add:

Part 18--Transitional: from the ASC to ASIC

SECT 268 Changes to name of ASC and the Australian Securities Commission Act SECT 1989 (1) After the commencement of this section, a reference in:

(a) an Act of this jurisdiction; or

(b) an instrument under such an Act; or

(c) an award or other industrial determination, order or agreement; or

(d) any other order (whether executive, judicial or otherwise); or

(e) any contract; or

(f) any pleading in, or process issued in connection with, any legal or other proceeding; or

(g) any other instrument;

(2) After the commencement of this section, a reference in:

(a) an Act of the Commonwealth; or

(b) an instrument under such an Act;

Note: Subsection (2) is enacted in case the effect of subsections 5(3) to (5) is to exclude the application of section 25B of the Acts Interpretation Act 1901.