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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Financial
Sector Legislation Amendment Bill (No. 1)
2002
No. ,
2002
(Treasury)
A Bill
for an Act to amend certain laws relating to the financial sector, and for
related purposes
Contents
Insurance Act
1973 9
General Insurance Reform Act
2001 14
A Bill for an Act to amend certain laws relating to the
financial sector, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Financial Sector Legislation Amendment
Act (No. 1) 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day after the day on which this Act receives the Royal Assent |
|
|
2. Schedules 1 to 3 |
The day after the day on which this Act receives the Royal Assent |
|
|
3. Schedule 4, items 1 to 17 |
Immediately after the commencement of Schedule 1 to the General
Insurance Reform Act 2001. |
|
|
4. Schedule 4, item 18 |
Immediately after the commencement of Schedule 2 to the General
Insurance Reform Act 2001. |
|
|
5. Schedules 5 to 9 |
The day after the day on which this Act receives the Royal
Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Section 50
Repeal the section, substitute:
(1) The Treasurer is to make, for each financial year, either of the
following determinations:
(a) a determination specifying the amount (the retainable
amount), of the levy money payable to the Commonwealth in respect of
levy for that financial year, that is to be available to cover the costs to the
Commonwealth of providing market integrity and consumer protection functions for
prudentially regulated institutions;
(b) a determination, in respect of each class of levy that is payable to
the Commonwealth for that financial year, specifying the amount (the
retainable amount), of the levy money payable to the Commonwealth
in respect of that class of levy for that financial year, that is to be
available to cover the costs to the Commonwealth of providing market integrity
and consumer protection functions for prudentially regulated
institutions.
(2) Subject to subsection (6), if the Treasurer makes a determination
in respect of a financial year of a kind mentioned in paragraph (1)(a), an
amount equal to so much of the levy money payable to the Commonwealth for that
financial year as exceeds the retainable amount referred to in that paragraph
for the levy for that financial year is payable by the Commonwealth to
APRA.
(3) Subject to subsection (6), if the Treasurer makes a determination
in respect of a financial year of a kind mentioned in paragraph (1)(b), an
amount equal to so much of the levy money payable to the Commonwealth for that
financial year in respect of a class of levy as exceeds the retainable amount
referred to in that paragraph for that class of levy for that financial year is
payable by the Commonwealth to APRA.
(4) A determination under subsection (1) is to be in writing and is
to be a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901.
(5) The Consolidated Revenue Fund is appropriated for the purpose of
payments under subsection (2) or (3).
(6) If:
(a) the Commonwealth waives, writes off or refunds any levy money;
and
(b) apart from this subsection an amount equal to that levy money would be
payable by the Commonwealth to APRA;
that amount is not payable by the Commonwealth to APRA.
(7) In this section:
levy means either of the following classes of levy:
(a) levy payable under the Financial Institutions Supervisory Levies
Collection Act 1998, other than levy imposed by the Superannuation
(Financial Assistance Funding) Levy Act 1993;
(b) levy payable under the Superannuation (Self Managed Superannuation
Funds) Taxation Act 1987.
levy money:
(a) in relation to levy, means any amount payable to the Commonwealth in
respect of levy; or
(b) in relation to a particular class of levy, means any amount payable to
the Commonwealth in respect of that class of levy.
2 Application
The amendment made by item 1 applies for the financial year that began
on 1 July 2001 and for all later financial years.
3 Subsection 56(1)
Insert:
personal information has the same meaning as in the
Privacy Act 1988.
4 At the end of
section 56
Add:
(12) A disclosure of personal information is taken to be authorised by law
for the purposes of paragraph (1)(d) of Information Privacy Principle 11 in
section 14 of the Privacy Act 1988 if:
(a) the information is protected information and the disclosure is made in
accordance with any of subsections (4), (5), (6), (7A), (7B) and (7C);
or
(b) the information is contained in a protected document and the
disclosure is made by the production of the document in accordance with any of
those subsections.
1 Paragraph 9(1)(a)
Repeal the paragraph, substitute:
(a) if the levy imposition day relating to the levy payable by the
leviable body is 1 July of the financial year—a business day that
is:
(i) specified in a notice given to the leviable body by APRA in relation
to the financial year; and
(ii) is not earlier than 28 days after the day on which the notice is
given; or
2 Subsection 9(2)
Repeal the subsection, substitute:
(2) Levy payable under subsection 8(6) for a financial year by a trustee
of a superannuation entity is due and payable:
(a) if the entity is a superannuation entity on 1 July of the
financial year and became a superannuation entity before that day—on a
business day that:
(i) is specified in a notice given by APRA to the trustee on or after the
day on which a return under section 36 of the Superannuation Industry
(Supervision) Act 1993 that relates to the previous financial year was
received by APRA; and
(ii) is not earlier than 6 weeks after the day on which the notice is
given; or
(b) if the entity becomes a superannuation entity on or after 1 July
of the financial year—on a business day that:
(i) is specified in a notice given by APRA to the trustee; and
(ii) is not earlier than 6 weeks after the day on which the notice is
given.
3 Section 10
Repeal the section, substitute:
(1) If any levy payable by a levy paying entity:
(a) is not paid on or before the day on which it is due and payable (the
due day for payment); and
(b) remains unpaid after the penalty calculation day;
the levy paying entity is liable to pay, by way of penalty, an amount
worked out at the rate of 20% per year on the amount unpaid, computed from the
end of the due day for payment to the end of the penalty calculation
day.
(2) The penalty calculation day is:
(a) if the levy is paid on or after the first day of a month and before
the sixth day of that month—the 20th day of the immediately preceding
month; or
(b) if the levy is paid on or after the sixth day of a month and before
the 20th day of that month—the sixth day of that month; or
(c) if the levy is paid on or after the 20th day of a month and on or
before the last day of that month—the 20th day of that month.
4 Application
The amendment made by item 3 applies only to levy that becomes due and
payable after the commencement of that item.
5 At the end of
section 13
Add:
(2) APRA is authorised, as agent of the Commonwealth, to bring proceedings
in the name of the Commonwealth for the recovery of a debt due to the
Commonwealth of a kind mentioned in subsection (1).
(3) If, in proceedings brought by APRA under subsection (2), the
Commonwealth is ordered to pay costs, APRA must pay the costs out of
APRA’s money and the Commonwealth is not liable to reimburse APRA for the
payment.
1 At the end of subsection
12(2)
Add:
; and (c) the Commissioner of Taxation.
2 At the end of
section 12
Add:
(5) APRA does not have to consult with the Commissioner of Taxation in
relation to the transfer of business if the Commissioner has notified APRA, in
writing, that he or she does not wish to be consulted about:
(a) the transfer; or
(b) a class of transfers that includes the transfer.
1 Paragraph 25(1)(a)
Repeal the paragraph, substitute:
(a) the person has been convicted of an offence against or arising out
of:
(i) this Act; or
(ii) the Financial Sector (Collection of Data) Act 2001;
or
(iii) the Corporations Act 2001, the Corporations Law that was
previously in force, or any law of a foreign country that corresponds to that
Act or to that Corporations Law; or
2 At the end of subsection
25(1)
Add:
; or (f) APRA has disqualified the person under
section 25A.
3 After section 25
Insert:
(1) APRA may disqualify a person if it is satisfied that the person is not
a fit and proper person to be or to act as someone referred to in paragraph
24(1)(a), (b) or (c).
(2) A disqualification takes effect on the day on which it is
made.
(3) APRA may revoke a disqualification on application by the disqualified
person or on its own initiative. A revocation takes effect on the day on which
it is made.
(4) APRA must give the person written notice of a disqualification,
revocation of a disqualification or a refusal to revoke a
disqualification.
(5) As soon as practicable after a notice is given to a person under
subsection (4), APRA must cause particulars of the disqualification,
revocation or refusal to which the notice relates:
(a) to be given:
(i) if the person is, or is acting as, a person referred to in paragraph
24(1)(a)—to the general insurer concerned; or
(ii) if the person is, or is acting as, a person referred to in paragraph
24(1)(b)—to the foreign general insurer concerned; or
(iii) if the person is, or is acting as, a person referred to in paragraph
24(1)(c)—to the authorised NOHC; and
(b) to be published in the Gazette.
(6) Part VI applies to a disqualification under this section or to a
refusal to revoke such a disqualification.
4 Subsections 26(3) to (6)
Repeal the subsections, substitute:
(3) If a person applies for a determination under this section, APRA
must:
(a) either make, or refuse to make, the determination; and
(b) in the case of a refusal, give the person written notice of the
refusal.
(4) APRA may do any of the following:
(a) when making a determination under subsection (1), specify in the
determination conditions to which the determination is to be subject;
(b) at any later time while a determination under subsection (1) is
in force, make a further determination specifying conditions or additional
conditions to which the determination under subsection (1) is to be
subject;
(c) at any time make a determination varying or revoking conditions that
have been specified under paragraph (a) or (b).
(5) A determination takes effect on the day on which it is made.
(6) APRA must, as soon as practicable after a determination is made, give
written notice of the making of the determination, and a copy of the
determination, to the person concerned and to any affected general insurer or
authorised NOHC.
(7) A notice of a refusal to make a determination, or a notice of the
making of a determination that specifies or varies conditions, must state the
reasons for the refusal or for the specifying or variation of the conditions, as
the case may be.
(8) APRA may revoke a determination under this section by giving written
notice to the person concerned and must give a copy of the notice to any
affected general insurer or authorised NOHC.
(9) Part VI applies to a refusal of APRA to make a determination
under this section, to a determination under this section that specifies
conditions, to a determination under this section that varies conditions in a
way that is more onerous on the person concerned or to the revocation of a
determination under this section.
5 Subsection 32(3A)
Omit “proposed by a general insurer, authorised NOHC or subsidiary of
a general insurer”, substitute “proposed by, or agreed to with, a
general insurer, an authorised NOHC or a subsidiary of a general insurer or
authorised NOHC”.
6 After subsection 32(3C)
Insert:
(3CA) APRA may vary or revoke a modification of a prudential standard and,
if it revokes a modification, it may make under subsection (3A) a further
modification of the standard in substitution for the previous modification. APRA
must give written notice of a variation or revocation to the general insurer,
authorised NOHC or subsidiary concerned.
7 At the end of subsection
32(3E)
Add “or varying a modification under
subsection (3CA)”.
8 After subsection 32(4)
Insert:
(4A) A modification, or a variation of a modification, takes effect on the
day on which the modification or variation is made or such later day as is
specified in the instrument effecting the modification or variation.
9 Subsection 33(1)
After “making”, insert “, modifying”.
10 Paragraph 42(1)(a)
Omit “of the appointment”, substitute “that the person
was required to perform”.
11 Paragraph 43(a)
Repeal the paragraph.
12 Subsection 49N(1)
Repeal the subsection, substitute:
(1) APRA may give a written direction to a general insurer to provide, or
further provide, in its accounts for the purposes of this Act (including the
prudential standards):
(a) a specified amount; or
(b) an amount determined in a specified way;
as the value of a specified asset of the insurer.
13 After subsection 49N(4)
Add:
(4A) A direction ceases to have effect on the commencement of the winding
up of the general insurer concerned.
14 Subsection 63(12)
Omit all the words after “employee”, substitute:
of:
(a) an entity of any kind carrying on (whether in Australia or elsewhere)
insurance business or life insurance business; or
(b) if an entity referred to in paragraph (a) is a body
corporate—a body corporate that is related to it.
15 After subsection 63(12)
Insert:
(12A) The question whether 2 bodies corporate are related to each other
for the purposes of paragraph (12)(b) is to be determined in the same way
as that question is determined for the purposes of the Corporations Act
2001.
16 At the end of
section 117
Add:
(3) If:
(a) written notice has been given to APRA of an address for service in
Australia for a foreign general insurer; and
(b) a body corporate that is a subsidiary of the foreign general insurer
is not incorporated in Australia; and
(c) no written notice has been given to APRA of an address for service in
Australia for the subsidiary;
the address for service in Australia for the foreign general insurer is
taken, from the time when the notice referred to in paragraph (a) was or is
given, to have been, or to be, the address for service in Australia for the
subsidiary for the purposes of this Act.
17 After subsection 118(4)
Insert:
(4A) If:
(a) a foreign general insurer has given written notice under
subsection (4) of the appointment of an agent of the foreign general
insurer and the notice specifies the name and place of residence of the agent;
and
(b) a body corporate that is a subsidiary of the foreign general insurer
is not incorporated in Australia; and
(c) no written notice has been given to APRA of the appointment of an
agent of the subsidiary;
the agent specified in the notice referred to in paragraph (a) is
taken, from the time when that notice was or is given, to have been, or to be,
the agent of the subsidiary for the purposes of this Act and to have been, or to
have, the place of residence specified in that notice.
General Insurance Reform Act
2001
18 Paragraph (a) of subitem 5(2) of
Schedule 2
Omit “old Act”, substitute “new Act”.
1 Section 3
Omit:
• A proposal can be stopped if the Minister makes a
temporary restraining order or a permanent restraining
order.
• A proposal can be carried out if:
(a) the Minister makes a go-ahead decision; or
(b) the Minister takes no action before a time limit runs
out.
substitute:
• A proposal can be stopped if the Minister makes a
permanent restraining order.
• A proposal can be carried out if the Minister makes a
go-ahead decision.
2 Section 4 (definition of reviewable
decision)
Omit “(other than section 42 or 56)”.
3 Section 35 (definition of temporary
restraining order)
Repeal the definition.
4 Division 2 of Part 3
(heading)
Repeal the heading, substitute:
5 Section 39
Repeal the section.
6 Section 40
Repeal the section, substitute:
If:
(a) a person carries out a trigger proposal; and
(b) the Minister did not give a go-ahead decision in relation to the
proposal before the relevant acquisition occurred or the relevant arrangement
was entered into;
the person commits an offence punishable on conviction by imprisonment for
a period not exceeding 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
7 Subsection 41(4)
Omit “a temporary restraining order or”.
8 Division 4 of Part 3
(heading)
Repeal the heading, substitute:
9 Section 42
Repeal the section.
10 Section 45
Omit “temporary restraining order,”.
Note: The heading to section 45 is altered by omitting
“temporary restraining order,”.
11 Section 46
Omit “temporary restraining order,”.
12 Subsection 47(1)
Omit “temporary restraining order or”.
13 Subsection 48(1)
Omit “a temporary restraining order,”.
14 Section 49 (definition of temporary
restraining order)
Repeal the definition.
15 Division 2 of Part 4
(heading)
Repeal the heading, substitute:
16 Section 53
Repeal the section.
17 Section 54
Repeal the section, substitute:
If:
(a) a person or company carries out a trigger proposal; and
(b) the Minister did not give a go-ahead decision in relation to the
proposal before the relevant agreement was entered into or the relevant
alteration to the company’s constituent document was made, as the case may
be;
the person or company commits an offence punishable on conviction by
imprisonment for a period not exceeding 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
18 Subsection 55(4)
Omit “a temporary restraining order or”.
19 Division 4 of Part 4
(heading)
Repeal the heading, substitute:
20 Section 56
Repeal the section.
21 Section 59
Omit “temporary restraining order,”.
Note: The heading to section 59 is altered by omitting
“temporary restraining order,”.
22 Section 60
Omit “temporary restraining order,”.
23 Subsection 61(1)
Omit “temporary restraining order or”.
24 Subsection 62(1)
Omit “a temporary restraining order,”.
1 Subsection 236(1A)
Omit “Any of the following decisions that are made within 5 years
after the commencement of this subsection”, substitute “The
following decisions”.
2 Subsection 236(1B)
Repeal the subsection.
1 Subparagraph
10B(3)(b)(ii)
After “efficiency of”, insert “the”.
2 Paragraph 14(1)(d)
Omit “Governor-General”, substitute
“Treasurer”.
3 Subsection 14(3)
Omit “Governor-General”, substitute
“Treasurer”.
4 After section 17
Insert:
A member of the Reserve Bank Board appointed under paragraph 14(1)(d) may
resign his or her appointment by giving a written resignation to the
Treasurer.
5 At the end of paragraphs 18(1)(a) and
(b)
Add “or”.
6 Paragraph 18(1)(c)
Repeal the paragraph.
7 Subsection 18(1)
Omit “Governor-General”, substitute
“Treasurer”.
8 Section 22
Repeal the section, substitute:
(1) The Secretary may, by writing, nominate a specified person who is an
SES employee or acting SES employee in the Department to attend a particular
meeting, or all meetings, of the Reserve Bank Board at which the Secretary is
not present.
(2) A person so nominated may attend a meeting to which the nomination
applies and, if the person does so, he or she is taken, for the purposes of this
Part, to be a member of the Reserve Bank Board.
9 Paragraph 24(a)
Repeal the paragraph, substitute:
(a) are to be appointed by the Treasurer; and
10 Paragraph 24(b)
Omit “Governor-General”, substitute
“Treasurer”.
11 After section 24A
Insert:
The Governor or the Deputy Governor may resign his or her appointment by
giving a written resignation to the Treasurer.
12 At the end of paragraphs 25(a) and
(b)
Add “or”.
13 Paragraph 25(c)
Omit “benefit; or”, substitute
“benefit;”.
14 Paragraph 25(d)
Repeal the paragraph.
15 Section 25
Omit “Governor-General”, substitute
“Treasurer”.
16 Subsection 25B(3)
Omit “Governor-General”, substitute
“Treasurer”.
17 Paragraph 25K(c)
Omit “Governor-General”, substitute
“Treasurer”.
18 Subsections 25L(3) and
(4)
Omit “Governor-General”, substitute
“Treasurer”.
19 Section 70
Repeal the section.
20 Subsection 74(2)
Repeal the subsection.
21 Application
(1) The amendments made by items 2, 9, 10 and 16 apply only in respect
of appointments made after the commencement of this Schedule.
(2) The amendments made by items 6, 7, 14 and 15 do not apply to a
person who resigned the relevant office before the commencement of this Schedule
but whose appointment had not been terminated before that
commencement.
1 Paragraph 21(2)(c)
Omit “unless the person is an approved trustee”, substitute
“if the person is required by subsection 121A(1) to be, but is not, an
approved trustee”.
2 Paragraph 21(2)(d)
Omit “is not an approved trustee”, substitute “is
required by subsection 121A(1) to be, but is not, an approved
trustee”.
3 Subsection 121A(1)
Omit “A person”, substitute “Subject to
subsection (1A), a person”.
4 After subsection 121A(1)
Insert:
(1A) Subsection (1) does not apply in respect of a superannuation
fund at a particular time (the relevant time) if:
(a) at the relevant time the fund is being wound up; and
(b) immediately before the commencement of the winding up, the fund had at
least 5 members; and
(c) the relevant time is not more than one year (or such longer period, if
any, as APRA allows in respect of the fund) after the time, or the first time,
at which the number of members falls below 5.
5 Paragraph 133(1)(d)
Omit “is not an approved trustee”, substitute “is
required by subsection 121A(1) to be, but is not, an approved
trustee”.
6 At the end of subsection
252C(7A)
Add:
; (d) a description of:
(i) court proceedings in relation to a breach or suspected breach by a
person of a provision of this Act or a provision of an Act covered by this
section; or
(ii) activity engaged in, or proposed to be engaged in, by the
Commissioner in relation to such a breach or suspected breach.
1 Section 5
Insert:
unregulated entity at a particular time means:
(a) a fund, trust or scheme that, at that time, is not a superannuation
entity within the meaning of the Superannuation Industry (Supervision) Act
1993; or
(b) a fund or scheme that, at that time, is a self managed superannuation
fund within the meaning of that Act.
2 Paragraph 7(1)(a)
Repeal the paragraph, substitute:
(a) unless paragraph (b) or (c) applies—the amount that, for
the financial year, is the levy percentage of:
(i) except where the superannuation entity was an unregulated entity on
30 June of the previous financial year—the superannuation
entity’s asset value on that day; or
(ii) if the superannuation entity was an unregulated entity on
30 June of the previous financial year—the unregulated entity’s
asset value on that day; or