Commonwealth Numbered Acts Commonwealth Numbered Acts1 Interpretation
In this Part:
amended Act means the Banking Act 1959 as in force immediately after the APRA commencement.
APRA means the Australian Prudential Regulation Authority.
APRA commencement means the commencement of the Australian Prudential Regulation Authority Act 1998 .
old Act means the Banking Act 1959 as in force immediately before the APRA commencement.
2 Treatment of section 9 authorities
(1) This item applies to an authority that, immediately before the APRA commencement, was:
(b) deemed by subsection 9(1) of the old Act to be an authority under section 9 of that Act.
(3) Any conditions to which the authority was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions imposed under subsection 9(4) of the amended Act.
3 Treatment of undetermined applications for section 9 authorities
An application for an authority under section 9 of the old Act made, but not determined, before the APRA commencement is to be treated, after that commencement, as if it were an application for an authority under subsection 9(3) of the amended Act.
4 Treatment of obligations to publish notices in relation to section 9 authorities
An obligation under section 9 of the old Act to publish notice of a matter in relation to, or to the holder of, an authority, being an obligation that is undischarged as at the APRA commencement, becomes, on that commencement, an obligation that APRA is to discharge.
5 Treatment of bodies covered by State and Territory Financial Institutions Codes
(1) Subject to subitem (2), APRA may, in writing, determine that a specified FIC body, or each body in a specified class of FIC bodies, is taken to be granted an authority under subsection 9(3) of the amended Act on a specified date.
(2) APRA's power to make a determination under subitem (1) that covers a particular FIC body (whether individually or as a member of a class of bodies) is subject to the following qualifications:
(b) the date specified in the determination as mentioned in subitem (1) must be the specified date referred to in paragraph (a).
(4) The determination has effect accordingly.
(5) The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
(6) Subsection 9(7) of the amended Act does not apply to:
(b) the imposition of conditions on an authority under subitem (3).
FIC body means a body that is a financial institution for the purposes of any of the Financial Institutions Codes.
Financial Institutions Code means any of the following Codes of a State or Territory:
(b) the Financial Institutions (Victoria) Code of Victoria;
(c) the Financial Institutions (Queensland) Code of Queensland;
(d) the Financial Institutions (Western Australia) Code of Western Australia;
(e) the Financial Institutions (South Australia) Code of South Australia;
(f) the Financial Institutions (Tasmania) Code of Tasmania;
(g) the Financial Institutions (ACT) Code of the Australian Capital Territory;
(h) the Financial Institutions (NT) Code of the Northern Territory.
6 Treatment of exemptions under section 11
(1) An order in force immediately before the APRA commencement under section 11 of the old Act continues to have effect after that commencement as if it were an order under subsection 11(1) of the amended Act.
(2) Any conditions to which the order was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions applying under subsection 11(2) of the amended Act.
7 Treatment of subsection 11E(2) approvals
An approval by the Governor of the Reserve Bank in force under subsection 11E(2) of the old Act immediately before the APRA commencement is to be taken, after that commencement, to be an approval by APRA under subsection 11E(2) of the amended Act.
8 Treatment of matters under depositor protection provisions
(1) The following provisions apply in relation to matters under provisions of Division 2 of Part II of the old Act (including matters under those provisions as applying for the purpose of subsection 65(3) of the old Act):
(b) an appointment of an investigator under a provision of the Division, being an appointment that is still in force immediately before the APRA commencement, has effect after that commencement as if it were an appointment by APRA under section 13 or 13A of the amended Act;
(c) if the Reserve Bank is, immediately before the APRA commencement, in control of an institution's business under a provision of the Division, the Reserve Bank is to transfer the control of the institution's business to APRA, and the provisions of Division 2 of Part II of the amended Act apply in relation to APRA being in control of the institution's business;
(d) proceedings under subsection 14(6) of the old Act that have not been completed by the APRA commencement lapse;
(e) an obligation on the Reserve Bank under a provision of the Division to publish notice of a matter, being an obligation that is undischarged as at the APRA commencement, becomes, on that commencement, an obligation that APRA is to discharge;
(f) an authorisation that is in force under subsection 16(2) of the old Act immediately before the APRA commencement has effect, after that commencement, as if it were an authorisation under subsection 13A(4) of the amended Act.
(3) Section 15 of the old Act continues to have effect (despite its repeal) after the APRA commencement in relation to things done or omitted to be done before that commencement.
9 Treatment of instruments under Division 3 of Part II
An instrument in force immediately before the APRA commencement under a provision of Division 3 of Part II of the old Act, being a provision that is amended by this Act, continues to have effect after that commencement (as far as practicable and subject to later instruments) as if it covered ADIs in the same way as it covers banks.
10 Reserve Bank to repay non-callable deposits on repeal of Division 3 of Part II
On the repeal of Division 3 of Part II of the Banking Act 1959 , the Reserve Bank is to repay to an ADI the amount then standing to the credit of the ADI's Non-callable Deposit Account. The repayment is to be made as soon as practicable after the repeal takes effect.
Regulations in force immediately before the APRA commencement under section 50 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if they covered ADIs in the same way as they cover banks.
12 Treatment of regulations under Part VI
Regulations in force immediately before the APRA commencement under section 51 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if they covered ADIs in the same way as they cover banks.
13 Treatment of investigations under section 61
An appointment of an investigator under section 61 of the old Act, being an appointment that is still in force immediately before the APRA commencement, has effect after that commencement as if it were an appointment by APRA under section 61 of the amended Act.
14 Treatment of obligations under section 62
An obligation to provide information to the Reserve Bank under section 62 of the old Act, being an obligation that is undischarged as at the APRA commencement, becomes, on the APRA commencement, an obligation to provide the information to APRA.
15 Assumption of control of business under section 65
(1) An order in force in relation to an institution immediately before the APRA commencement under section 65 of the old Act continues to have effect after that commencement as if it authorised APRA to assume control of, and to carry on, the institution's business.
(2) If the Reserve Bank is, immediately before the APRA commencement, in control of an institution's business under section 65 of the old Act, the Reserve Bank is to transfer the control of the institution's business to APRA, and the provisions of Subdivision B of Division 2 of the amended Act apply in relation to APRA being in control of the institution's business in accordance with subsection 65(3) of that Act.
(3) The regulations may make provision dealing with how the transfer of control of an institution's business as mentioned in subitem (2) is to occur, or otherwise relating to such a transfer.
16 Treatment of consents under section 66
(1) A consent in force immediately before the APRA commencement under section 66 of the old Act continues to have effect after that commencement as if it were a consent under section 66 of the amended Act.
(2) Any conditions to which the consent was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions applying under section 66 of the amended Act.
17 Continued use of words by banks
(1) This item applies to an institution that, immediately before the APRA commencement was a bank that was assuming or using a bank-related word in relation to a financial business (within the meaning of section 66 of the old Act).
(2) The institution is taken, on the APRA commencement, to have been granted a consent under section 66 of the amended Act covering the assumption or use of the word.
18 Treatment of consents under section 67
(1) A consent in force immediately before the APRA commencement under section 67 of the old Act continues to have effect after that commencement as if it were a consent under section 67 of the amended Act.
(2) Any conditions to which the consent was subject immediately before the APRA commencement are to be taken, after that commencement, to be conditions applying under section 67 of the amended Act.
19 Treatment of regulations under section 71
Regulations in force immediately before the APRA commencement under section 71 of the old Act continue to have effect after that commencement (as far as practicable and subject to later regulations) as if:
(b) references in them to the Reserve Bank were instead references to APRA.
Part 2--Transitional provisions relating to amendments of the Financial Corporations Act 1974
20 Interpretation
In this Part:
amended Act means the Financial Corporations Act 1974 as in force immediately after the APRA commencement.
APRA commencement means the commencement of the Australian Prudential Regulation Authority Act 1998 .
old Act means the Financial Corporations Act 1974 as in force immediately before the APRA commencement.
21 Treatment of exemptions and determinations under paragraph 8(2)(l)
An exemption or determination in force immediately before the APRA commencement under paragraph 8(2)(l) of the old Act continues to have effect after that commencement as if it were an exemption or determination under paragraph 8(2)(l) of the amended Act.
22 Treatment of matters under section 10
The following provisions apply in relation to matters under section 10 of the old Act:
(b) an obligation on the Treasurer to publish notice of a matter, or to notify a person of a matter, being an obligation that is undischarged as at the APRA commencement, becomes, on that commencement, an obligation that the Governor of the Reserve Bank is to discharge;
(c) a determination in force under a provision of section 10 of the old Act immediately before the APRA commencement continues to have effect, after that commencement as if it were a determination under that provision of section 10 of the amended Act;
(d) a request under subsection 10(7) of the old Act that has not been dealt with by the APRA commencement is, after that commencement, to be dealt with as if it were a request under subsection 10(7) of the amended Act.
An exemption in force immediately before the APRA commencement under subsection 11(14) of the old Act continues to have effect after that commencement as if it were an exemption under subsection 11(14) of the amended Act.
Part 3--Transitional provisions relating to the establishment of APRA and the repeal of the Insurance and Superannuation Commissioner Act 1987
Division 1--Interpretation
24 Interpretation
(1) In this Part:
APRA means the Australian Prudential Regulation Authority.
APRA Act means the Australian Prudential Regulation Authority Act 1998 .
APRA commencement means the commencement of 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.
ISC employee means a member of the staff assisting the Insurance and Superannuation Commissioner.
person's transfer time has the meaning given by subitem 25(1) or subitem 25(3), as the case requires.
RBA employee means a person appointed under Part VII of the Reserve Bank Act 1959 .
Reserve Bank means the Reserve Bank of Australia.
(2) A reference in this Part to the Commonwealth includes a reference to the Insurance and Superannuation Commissioner.
Division 2--Transfer of staff
25 Transfer of staff from the Reserve Bank and the ISC
(1) The Governor of the Reserve Bank, in consultation with APRA's Chief Executive Officer, may, in writing, determine that, at a specified time (the person's transfer time ), not being a time before the APRA commencement, a specified RBA employee:
(b) becomes an APRA employee.
(3) An ISC employee may, at a particular time (the person's transfer time ), become an APRA employee because of a declaration under section 81C of the Public Service Act 1922 .
26 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 subitem 25(1) or (3) as if the person had actually been appointed under section 45 of the APRA Act. The terms and conditions relating to remuneration must not be less favourable than those that applied to the person immediately before the person's transfer time.
(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 service as an RBA employee or an ISC employee up to the person's transfer time, as if those benefits had accrued in respect of the person's position as an APRA employee.
(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 person's transfer time, as an RBA employee or an ISC employee.
(4) The person is not entitled to receive any payment or other benefit merely because he or she stopped being an RBA employee or an ISC employee as a result of this Part.
(5) This item does not prevent the terms and conditions applying to the person as an APRA employee being varied (including by omitting existing terms and conditions or adding new terms and conditions) after the person's transfer time:
(b) by or under a law, award, determination or agreement.
(1) Before a person becomes an APRA employee as mentioned in subitem 25(1) or (3), the Reserve Bank or the Insurance and Superannuation Commissioner, as the case requires, must give the person a written statement setting out particulars of the benefits to which the person has an accrued entitlement.
(2) In any proceedings relating to subitem 26(2), the statement is prima facie evidence of the matters set out in the statement.
(3) Item 25 has effect in relation to the person even if the Reserve Bank or the Insurance and Superannuation Commissioner fails to give the required statement.
Division 3--Transfer of assets and liabilities
28 Transfer of assets
(1) The Treasurer may, in writing, make any or all of the following declarations:
(b) a declaration that a specified instrument in relation to a specified asset continues to have effect after the asset vests in APRA, or in ASIC, as if a reference in the instrument to the Commonwealth were a reference to APRA or ASIC, as the case requires;
(c) a declaration that APRA or ASIC becomes the Commonwealth's successor in law in relation to a specified asset immediately after the asset vests in APRA or ASIC.
(3) Subitem (1) does not prevent the Commonwealth from transferring an asset to APRA or ASIC otherwise than under that subitem.
(4) A declaration under this item is not to be taken to be a legislative instrument for the purposes of the Legislative Instruments Act 1998 .
29 Transfer of liabilities
(1) The Treasurer may, in writing, make any or all of the following declarations:
(b) a declaration that a specified instrument in relation to a specified liability continues to have effect after the liability becomes a liability of APRA, or of ASIC, as if a reference in the instrument to the Commonwealth were a reference to APRA or ASIC, as the case requires;
(c) a declaration that APRA or ASIC becomes the Commonwealth's successor in law in relation to a specified liability immediately after the liability becomes a liability of APRA or ASIC.
(3) Subitem (1) does not prevent the Commonwealth from transferring a liability to APRA or ASIC otherwise than under that subitem.
(4) A declaration under this item is not to be taken to be a legislative instrument for the purposes of the Legislative Instruments Act 1998 .
30 References in instruments to Reserve Bank or ISC become references to APRA
(1) APRA may, in writing, declare that a specified instrument that:
(b) contains one or more references to the Reserve Bank or to the Insurance and Superannuation Commissioner;
(3) In this item:
instrument includes a document.
31 Transfer of records
(1) The Treasurer may transfer to APRA, or to ASIC, records that relate to the functions of APRA or ASIC.
(2) This item does not authorise a Commonwealth record to be transferred, or otherwise dealt with, except in accordance with the Archives Act 1983 .
(3) In this item:
Commonwealth record and record have the same meanings as in the Archives Act 1983 .
32 Exemption from stamp duty and other taxes
Stamp duty or other tax is not payable under a law of a State or Territory in respect of:
(b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, the vesting or transfer of an asset or liability under this Division.
The Treasurer may, by instrument in writing, delegate all or any of the Treasurer's powers under this Division to an officer of the Department.
Division 4--Other general transitional provisions
34 Definitions
In this Division:
ASIC means the Australian Securities and Investments Commission.
Commissioner means the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987 as in force prior to the APRA commencement.
Insurance Act means the Insurance Act 1973 .
Life Insurance Act means the Life Insurance Act 1995 .
RSA Act means the Retirement Savings Accounts Act 1997 .
SIS Act means the Superannuation Industry (Supervision) Act 1993 .
35 Instruments made and things done before the APRA commencement by the Commissioner under the Insurance Act, the Life Insurance Act, the RSA Act and the SIS Act
(1) An instrument made or issued by the Commissioner under a provision of the Insurance Act, the Life Insurance Act, the RSA Act or the SIS Act and in force immediately before the APRA commencement, continues to have effect after the APRA commencement as if it were made or issued by:
(b) ASIC, to the extent that the instrument could, on the APRA commencement, be made or issued by ASIC under its powers and functions in the Act under which the instrument was made or issued.
(3) Anything done before the APRA commencement in relation to the Commissioner (for example, lodging an application with the Commissioner) under a provision of the Insurance Act, the Life Insurance Act, the RSA Act or the SIS Act has effect after the APRA commencement as if it had been done in relation to:
(b) ASIC to the extent to which the provision is administered by ASIC after the APRA commencement.
36 Instruments made and things done before the APRA commencement by the Commissioner under Acts now administered by ASIC
(1) An instrument made or issued by the Commissioner under a provision of:
(b) the Insurance Contracts Act 1984 ; or
(c) the Superannuation (Resolution of Complaints) Act 1993 ;
(2) If an instrument was, when made, to have effect only for a limited period, it has effect only for so much of the period as has not already expired before the APRA commencement.
(3) Anything done before the APRA commencement in relation to the Commissioner (for example, lodging an application with the Commissioner) under a provision of:
(b) the Insurance Contracts Act 1984 ; or
(c) the Superannuation (Resolution of Complaints) Act 1993 ;
37 Proceedings etc. by or against the ISC
(1) If, immediately before the APRA commencement, the Commissioner was a party to a legal proceeding in a court or tribunal then:
(b) to the extent that the proceeding relates to a function of ASIC--ASIC is substituted as a party to the proceeding and has the same rights in the proceeding as the Commissioner had.
(b) the rights in the proceeding of any of the parties to the proceeding.
(1) Despite the repeal of Part IX of the Insurance Act, that Part, as in force immediately before the APRA commencement, continues to apply to bodies corporate to which it applied immediately before the APRA commencement as if references in that Part to the Commissioner were instead references to APRA.
(2) The regulations may provide that Part IX of the Insurance Act, as it continues to apply under subitem (1), has effect with specified modifications.
39 Modified operation of item 27 of Schedule 2 to the Insurance Laws Amendment Act 1998
Item 27 of Schedule 2 to the Insurance Laws Amendment Act 1998 has effect as if the reference to the Commissioner were instead a reference to the Commissioner or to APRA.
Part 4--Transitional provisions relating to amendments of the Reserve Bank Act 1959
40 Interpretation
In this Part:
amended Act means the Reserve Bank Act 1959 as in force immediately after the APRA commencement.
APRA commencement means the commencement of the Australian Prudential Regulation Authority Act 1998 .
old Act means the Reserve Bank Act 1959 as in force immediately before the APRA commencement.
41 Effect of amendments reducing number of Deputy Governors
If, on the APRA commencement, there are 2 people holding office as Deputy Governors of the Reserve Bank of Australia, the following provisions have effect during the period starting on the APRA commencement and ending at the first time at which one of those people ceases to hold office as a Deputy Governor:
(b) subsection 21(3) of the old Act continues to have effect as if it referred to the quorum for a meeting of the Reserve Bank Board being 6 members;
(c) a reference to the Deputy Governor of the Reserve Bank of Australia in the amended Act, or in any other law of the Commonwealth, has effect as if it were a reference to either of the 2 Deputy Governors.
The period of appointment of a member of the Reserve Bank Board to whom subsection 14(5) of the old Act applied immediately before the APRA commencement remains the same, despite the repeal of that subsection.
43 Treatment of investigations under section 81
Section 81 of the old Act continues to have effect (despite its repeal) after the APRA commencement in relation to investigations, to the extent they were completed or in progress before that commencement.
Part 5--Transitional provisions relating to the Payment Systems (Regulation) Act 1998
44 Certain corporations are taken to have been granted authorities under section 23
A corporation that, on the commencement of the Payment Systems (Regulation) Act 1998 :
(b) is not an authorised deposit-taking institution, within the meaning of the Banking Act 1959 ;
Part 6--Transitional provisions relating to levies
45 Regulations may deal with transitional matters arising out of changes to levy legislation
(1) The regulations may deal with transitional matters arising out of:
(ii) the Insurance Supervisory Levies Collection Act 1989 ;
(iii) the Life Insurance Supervisory Levy Act 1989 ;
(iv) the Retirement Savings Accounts Supervisory Levy Act 1997 ; and
(ii) the Superannuation Supervisory Levy Act 1991 ; and
(ii) the Authorised Non-operating Holding Companies Supervisory Levy Imposition Act 1998 ;
(iii) the Life Insurance Supervisory Levy Imposition Act 1998 ;
(iv) the General Insurance Supervisory Levy Imposition Act 1998 ;
(v) the Retirement Savings Account Providers Supervisory Levy Imposition Act 1998 ;
(vi) the Superannuation Supervisory Levy Imposition Act 1998 ;
(vii) the Financial Institutions Supervisory Levies Collection Act 1998 .
(b) the waiver of an amount of levy that is due and payable; and
(c) the refund of an amount of levy that has been paid.
Part 7--Regulations dealing with transitional matters
46 Regulations may deal with other transitional matters
The regulations may deal with other transitional matters relating to the amendments and repeals made by the Schedules to this Act, or relating to the establishment of the Australian Prudential Regulation Authority.
47 Power to make regulations
The Governor-General may make regulations, not inconsistent with this Schedule, prescribing matters required or permitted by this Schedule to be prescribed.
[ Minister's second reading speech made in--
House of Representatives on 26 March 1998
Senate on 13 May 1998 ]
(39/98)