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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. 2)
2002
No. ,
2002
(Treasury)
A Bill
for an Act to amend certain laws relating to the financial sector, and for
related purposes
Contents
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. 2) 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 on which this Act receives the Royal Assent |
|
|
2. Schedule 1, items 1 to 3 |
The day after this Act receives the Royal Assent |
|
|
3. Schedule 1, item 4 |
Immediately after the commencement of the Australian Securities and
Investments Commission Act 2001. |
|
|
4. Schedules 2 and 3 |
The day after this Act receives the Royal Assent |
|
|
5. Schedule 4, item 1 |
Immediately after the time specified in the Corporations (Repeals,
Consequentials and Transitionals) Act 2001 for the commencement of
subsection 2(8) of that Act |
|
|
6. Schedule 4, item 2 |
Immediately after the time specified in the Corporations (Repeals,
Consequentials and Transitionals) Act 2001 for the commencement of
item 284 of Schedule 3 to that Act |
|
|
7. Schedule 4, item 3 |
Immediately after the time specified in the Corporations (Repeals,
Consequentials and Transitionals) Act 2001 for the commencement of
item 337 of Schedule 3 to that Act |
|
|
8. Schedules 5 to 7 |
The day after 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repealed as set out in the applicable items in the Schedule concerned, and any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 Subsection 12GM(1)
After “engaged in”, insert “in”.
2 Subsection 127(5)
Omit “(4F)”, substitute “(4FA)”.
3 Paragraph 203(1)(c)
Omit “the Australian Society of Certified Practising
Accountants”, substitute “CPA Australia”.
4 Subsection 254(1) (subparagraph (b)(iii)
of the definition of old ASIC legislation)
After “Part 8”, insert “or Division 6 of
Part 11”.
1 Subsection 5(1) (definition of prudential
matters)
Repeal the definition, substitute:
prudential matters means matters relating to:
(a) the conduct by an ADI, an authorised NOHC, a relevant group of bodies
corporate, or a particular member or members of such a group, of any part of its
or their affairs in such a way as:
(i) to keep the ADI, NOHC, group or member or members of the group in a
sound financial position; or
(ii) not to cause or promote instability in the Australian financial
system; or
(b) the conduct by an ADI, an authorised NOHC, a relevant group of bodies
corporate, or a particular member or members of such a group, of its or their
affairs with integrity, prudence and professional skill.
2 Subsection 5(1)
Insert:
relevant group of bodies corporate has the meaning given by
subsection 5(3).
3 Subsection 5(1)
Insert:
senior manager of an ADI or an authorised NOHC or the
Australian operations of a foreign ADI means a person who has or exercises any
of the senior management responsibilities (including those specified in
prudential standards) for the ADI or NOHC or for the Australian operations of
the foreign ADI, as the case may be.
4 At the end of
section 5
Add:
(3) For the purposes of this Act:
(a) an ADI and its subsidiaries together constitute a relevant group
of bodies corporate; and
(b) an authorised NOHC and its subsidiaries together also constitute a
relevant group of bodies corporate.
5 Before paragraph 9A(2)(a)
Insert:
(aa) the body corporate has, whether before or after the commencement of
this paragraph, provided, in connection with its application for the authority,
information that was false or misleading in a material particular; or
6 Before paragraph
11AB(2)(a)
Insert:
(aa) the body corporate has, whether before or after the commencement of
this paragraph, provided, in connection with its application for the authority,
information that was false or misleading in a material particular; or
7 After subsection 11AF(1A)
Insert:
(1AA) Without limiting the prudential matters in relation to which APRA
may determine a standard, a standard may require:
(a) each ADI or authorised NOHC; or
(b) each ADI or authorised NOHC included in a specified class of ADIs or
authorised NOHCs; or
(c) a specified ADI or authorised NOHC; or
(d) each of 2 or more specified ADIs or authorised NOHCs;
to ensure that its subsidiaries (or particular subsidiaries), or it and its
subsidiaries (or particular subsidiaries), collectively satisfy particular
requirements in relation to prudential matters.
8 Subsection 11CA(2)
Repeal the subsection, substitute:
(2) The kinds of direction that the body corporate may be given are
directions to do, or to cause a body corporate that is its subsidiary to do, any
one or more of the following:
(a) to comply with the whole or a part of a prudential regulation or a
prudential standard;
(b) to order an audit of the affairs of the body corporate, at the expense
of the body corporate, by an auditor chosen by APRA;
(c) to remove a director, secretary, executive officer or employee of the
body corporate from office;
(d) to ensure a director, secretary, executive officer or employee of the
body corporate does not take part in the management or conduct of the business
of the body corporate except as permitted by APRA;
(e) to appoint a person or persons as a director, secretary, executive
officer or employee of the body corporate for such term as APRA
directs;
(f) to remove any auditor of the body corporate from office and appoint
another auditor to hold office for such term as APRA directs;
(g) not to give any financial accommodation to any person;
(h) not to accept the deposit of any amount;
(i) not to borrow any amount;
(j) not to accept any payment on account of share capital, except payments
in respect of calls that fell due before the direction was given;
(k) not to repay any amount paid on shares;
(l) not to pay a dividend on any shares;
(m) not to repay any money on deposit or advance;
(n) not to pay or transfer any amount to any person, or create an
obligation (contingent or otherwise) to do so;
(o) not to undertake any financial obligation (contingent or otherwise) on
behalf of any other person;
(p) anything else as to the way in which the affairs of the body corporate
are to be conducted or not conducted.
A direction under paragraph (n) not to pay or transfer any amount does
not apply to the payment or transfer of money pursuant to an order of a court or
a process of execution.
9 After subsection 11CA(4)
Insert:
(4A) If the direction requires the body corporate to cause a subsidiary to
do, or to refrain from doing, an act or thing:
(a) the body corporate has power to cause the subsidiary to do, or to
refrain from doing, the act or thing; and
(b) the subsidiary has power to do, or to refrain from doing, the act or
thing;
despite anything in the subsidiary’s constitution or any contract or
arrangement to which the subsidiary is a party.
10 Subsection 11CD(1)
After “NOHC” (last occurring), insert “, or a subsidiary
of the ADI or NOHC,”.
11 Subsection 11CD(2)
After “NOHC” (first occurring), insert “, or a subsidiary
of an ADI or of an authorised NOHC,”.
12 Subsection 11CD(2)
Omit “11CA(2)(k)”, substitute
“11CA(2)(m)”.
13 Subsection 16B(1)
Repeal the subsection, substitute:
Duty to give information when required
(1) APRA may, by notice in writing, require a person who is, or has been,
an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or authorised NOHC; or
(d) if an ADI is a subsidiary of a foreign corporation (whether or not the
ADI is itself a foreign ADI):
(i) another subsidiary (a relevant Australian-incorporated
subsidiary) of the foreign corporation (other than a body
mentioned in paragraph (a), (b) or (c)), being a subsidiary that is
incorporated in Australia; or
(ii) another subsidiary (a relevant foreign-incorporated
subsidiary) of the foreign corporation (other than a body mentioned in
paragraph (a), (b) or (c)), being a subsidiary that is not incorporated in
Australia and carries on business in Australia;
to provide information to APRA about the ADI, authorised NOHC, subsidiary
of the ADI or authorised NOHC, or relevant Australian-incorporated subsidiary,
or about the Australian operations of the relevant foreign-incorporated
subsidiary, if APRA considers that the provision of the information will assist
APRA in performing its functions under this Act.
14 Subsection 16B(1A)
Omit “who is or has been an auditor of an ADI, an authorised NOHC, or
a subsidiary of an ADI or an authorised NOHC,”.
15 After subsection 16B(4)
Insert:
Additional duty to give information about Australian-incorporated
subsidiaries of certain foreign corporations
(4A) A person who is or has been an auditor of a relevant
Australian-incorporated subsidiary of a foreign corporation commits an offence
if:
(a) the person has reasonable grounds for believing that:
(i) the subsidiary is insolvent, or there is a significant risk that the
subsidiary will become insolvent; or
(ii) the subsidiary has failed to comply with a requirement under this Act
or the regulations; or
(iii) an existing or proposed state of affairs may materially prejudice
the interests of depositors of any ADI that is a subsidiary of the foreign
corporation; and
(b) the person does not inform APRA of the matter; and
(c) there is no order in force under section 11 determining that this
subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of
imprisonment. The maximum fine a court may impose is worked out as provided in
that subsection.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of up to 5 times the maximum fine worked out as mentioned
in Note 2.
Additional duty to give information about foreign-incorporated
subsidiaries of certain foreign corporations
(4B) A person who is or has been an auditor of a relevant
foreign-incorporated subsidiary of a foreign corporation commits an offence
if:
(a) the person has reasonable grounds for believing that:
(i) the subsidiary is insolvent, or there is a significant risk that the
subsidiary will become insolvent; or
(ii) the subsidiary has failed to comply with a requirement under this Act
or the regulations; or
(iii) an existing or proposed state of affairs of the Australian
operations of the subsidiary may materially prejudice the interests of
depositors of any ADI that is a subsidiary of the foreign corporation;
and
(b) the person does not inform APRA of the matter; and
(c) there is no order in force under section 11 determining that this
subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of
imprisonment. The maximum fine a court may impose is worked out as provided in
that subsection.
Note 3: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of up to 5 times the maximum fine worked out as mentioned
in Note 2.
Strict liability
(4C) Strict liability applies to the physical elements in
paragraphs (1A)(c), (2)(c), (3)(c), (4)(c), (4A)(c) and (4B)(c) that no
orders making determinations of kinds referred to in the paragraphs concerned
are in force under section 11.
16 Section 16C
Repeal the section, substitute:
A person who is, or has been, an auditor of:
(a) an ADI; or
(b) an authorised NOHC; or
(c) a subsidiary of an ADI or authorised NOHC; or
(d) if an ADI is a subsidiary of a foreign corporation (whether or not the
ADI is itself a foreign ADI):
(i) another subsidiary (a relevant Australian-incorporated
subsidiary) of the foreign corporation (other than a body
mentioned in paragraph (a), (b) or (c)), being a subsidiary that is
incorporated in Australia; or
(ii) another subsidiary (a relevant foreign-incorporated
subsidiary) of the foreign corporation (other than a body
mentioned in paragraph (a), (b) or (c)), being a subsidiary that is not
incorporated in Australia and carries on business in Australia;
may provide information to APRA about the ADI, authorised NOHC, subsidiary
of the ADI or authorised NOHC, or relevant Australian-incorporated subsidiary,
or about the Australian operations of the relevant foreign-incorporated
subsidiary, if the person considers that the provision of the information to
APRA will assist APRA in performing its functions under this Act.
17 After Division 2A of Part
II
Insert:
(1) This section applies to a person who is an auditor of an
ADI.
(2) APRA may direct (in writing) that an ADI remove the person from the
position if APRA is satisfied that the person:
(a) has failed to perform adequately and properly the functions and duties
of the position as required under this Act or the prudential standards;
or
(b) does not meet one or more of the criteria for fitness and propriety
set out in the prudential standards.
(3) Before directing an ADI to remove a person, APRA must give written
notice to:
(a) the person; and
(b) the ADI;
giving each of them a reasonable opportunity to make submissions on the
matter.
(4) If a submission is made to APRA under subsection (3), APRA must
have regard to the submission and may discuss any matter contained in the
submission with such persons as it considers appropriate for the purpose of
assessing the truth of the matter.
(5) A notice given under subsection (3) to a person or an ADI must
state that any submissions made pursuant to the notice may be discussed by APRA
with other persons as mentioned in subsection (4).
(6) A direction takes effect on the day specified in it, which must be not
earlier than 7 days after it is made.
(7) If APRA directs an ADI to remove a person, APRA must give a copy of
the direction to the person and to the ADI.
(8) Part VIA applies to a direction given by APRA under this
section.
(1) This section applies if APRA directs an ADI under section 17 to
remove a person from the position of auditor of the ADI.
(2) APRA may refer details of the matter to the following:
(a) the Companies Auditors and Liquidators Disciplinary Board established
by Division 1 of Part 11 of the Australian Securities and
Investments Commission Act 2001;
(b) those members of the professional association of the auditor who APRA
believes will be involved in considering or taking any disciplinary or other
action concerning the matter against the auditor.
(3) When APRA refers details of a matter, APRA must also give written
notice of the referral (including the nature of the matter) to the
auditor.
(1) A disqualified person commits an offence if the person is or acts
as:
(a) a director or senior manager of an ADI (other than a foreign ADI);
or
(b) a senior manager of the Australian operations of a foreign ADI;
or
(c) a director or senior manager of an authorised NOHC.
Maximum penalty: Imprisonment for 2 years.
(2) A disqualified person commits an offence if the person is or acts
as:
(a) a director or senior manager of an ADI (other than a foreign ADI);
or
(b) a senior manager of the Australian operations of a foreign ADI;
or
(c) a director or senior manager of an authorised NOHC.
Maximum penalty: 60 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) A body corporate commits an offence if it allows a disqualified person
to be or act as:
(a) if the body corporate is an ADI (other than a foreign ADI)—a
director or senior manager of the ADI; or
(b) if the body corporate is a foreign ADI—a senior manager of the
Australian operations of the ADI; or
(c) if the body corporate is an authorised NOHC—a director or senior
manager of the NOHC.
Maximum penalty: 250 penalty units.
(5) A body corporate commits an offence if it allows a disqualified person
to be or act as:
(a) if the body corporate is an ADI (other than a foreign ADI)—a
director or senior manager of the ADI; or
(b) if the body corporate is a foreign ADI—a senior manager of the
Australian operations of the ADI; or
(c) if the body corporate is an authorised NOHC—a director or senior
manager of the NOHC.
Maximum penalty: 60 penalty units.
(6) An offence against subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7) In a prosecution under subsection (4) or (5), it is a defence
if:
(a) the person was a disqualified person only because he or she was
disqualified by APRA under section 21; and
(b) the defendant contacted APRA within a reasonable period before
allowing the person to be or act as a director or senior manager (as the case
may be); and
(c) the defendant was incorrectly advised by APRA that the person was not
a disqualified person under section 21.
Note: A defendant bears an evidential burden in relation to
the matters in this subsection (see section 13.3(3) of the Criminal
Code).
(8) A failure to comply with this section does not affect the validity of
an appointment or transaction.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person is a disqualified person if, at any time
(whether before or after the commencement of this section):
(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
(b) the person has been convicted of an offence against or arising out of
a law in force in Australia, or the law of a foreign country, where the offence
related or relates to dishonest conduct, or to conduct relating to a company
that carries on business in the financial sector; or
(c) the person has been or becomes bankrupt; or
(d) the person has applied to take the benefit of a law for the relief of
bankrupt or insolvent debtors; or
(e) the person has compounded with his or her creditors; or
(f) APRA has disqualified the person under section 21; or
(g) the person has been disqualified under the law of a foreign country
from managing, or taking part in the management of, an entity that carries on
the business of banking or insurance or otherwise deals in financial
matters.
Note: APRA may determine that a person is not a disqualified
person (see section 22).
(2) A reference in subsection (1) to a person who has been convicted
of an offence includes a reference to a person in respect of whom an order has
been made relating to the offence under:
(a) section 19B of the Crimes Act 1914; or
(b) a corresponding provision of a law of a State, a Territory or a
foreign country.
(3) Nothing in this section affects the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions that, in certain
circumstances, relieve persons from the requirement to disclose spent
convictions and require persons aware of such convictions to disregard
them).
(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
19(1)(a), (b) or (c) or (2)(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
19(1)(a) or (2)(a)—to the ADI concerned; or
(ii) if the person is, or is acting as, a person referred to in paragraph
19(1)(b) or (2)(b)—to the foreign ADI concerned; or
(iii) if the person is, or is acting as, a person referred to in paragraph
19(1)(c) or (2)(c)—to the authorised NOHC; and
(b) to be published in the Gazette.
(6) Part VIA applies to a disqualification under this section or to a
refusal to revoke such a disqualification.
(1) Despite section 20, APRA may determine (in writing) that a person
is not a disqualified person. APRA may do so on its own initiative
or on the application of the person.
(2) However, APRA may only make the determination if it is satisfied that
the person is highly unlikely to be a prudential risk to any ADI or authorised
NOHC.
(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 ADI 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 ADI or authorised NOHC.
(9) The revocation of a determination takes effect on the day specified in
the instrument of revocation, which must be not earlier than 7 days after the
instrument is signed.
(10) Part VIA 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.
(1) This section applies to a person who is:
(a) a director or senior manager of an ADI (other than a foreign ADI);
or
(b) a senior manager of the Australian operations of a foreign ADI;
or
(c) a director or senior manager of an authorised NOHC.
(2) APRA may direct (in writing) that the ADI or authorised NOHC remove
the person from the position if APRA is satisfied that the person:
(a) is a disqualified person; or
(b) does not meet one or more of the criteria for fitness and propriety
set out in the prudential standards.
(3) Before directing an ADI or authorised NOHC to remove a person, APRA
must give written notice to:
(a) the person; and
(b) the ADI or NOHC;
giving each of them a reasonable opportunity to make submissions on the
matter.
(4) If a submission is made to APRA under subsection (3), APRA must
have regard to the submission and may discuss any matter contained in the
submission with such persons as it considers appropriate for the purpose of
assessing the truth of the matter.
(5) A notice given under subsection (3) to a person, an ADI or an
authorised NOHC must state that any submissions made pursuant to the notice may
be discussed by APRA with other persons as mentioned in
subsection (4).
(6) A direction takes effect on the day specified in it, which must be not
earlier than 7 days after it is signed.
(7) If APRA directs an ADI or authorised NOHC to remove a person, APRA
must give a copy of the direction to the person and to the ADI or
NOHC.
(8) Part VIA applies to a direction given by APRA under this
section.
18 After Part VI
Insert:
In this Part:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
reviewable decision of APRA means a decision of APRA to
which, under this Act, this Part applies.
(1) A person affected by a reviewable decision of APRA who is dissatisfied
with the decision may, by notice in writing given to APRA, within the period of
21 days after the day on which the decision first comes to the notice of the
person, or within such further period as APRA allows, request APRA to reconsider
the decision.
(2) The request must set out the reasons for making the request.
(3) Upon receiving the request, APRA must reconsider the decision and may,
subject to subsection (4), confirm or revoke the decision or vary the
decision in such manner as APRA thinks fit.
(4) If APRA does not confirm, revoke or vary a decision before the end of
the period of 21 days after the day on which APRA received the request under
subsection (1) to reconsider the decision, APRA is taken, at the end of
that period, to have confirmed the decision under subsection (3).
(5) If APRA confirms, revokes or varies a decision before the end of the
period referred to in subsection (4), APRA must, by notice served on the
person who made the request:
(a) tell the person of the result of APRA’s reconsideration of the
decision; and
(b) set out the findings on material questions of fact; and
(c) refer to the evidence or other material on which those findings were
based; and
(d) give APRA’s reasons for confirming, revoking or varying the
decision, as the case may be.
(6) When APRA serves on a person a notice containing information of a kind
mentioned in paragraph (5)(b) or (c), APRA may include in the notice
conditions to be complied with in relation to the notice or any information
disclosed in the notice.
(7) A person commits an offence if the person fails to comply with a
condition imposed under subsection (6).
Maximum penalty: Imprisonment for 2 years.
(8) Strict liability applies to the physical element of the offence in
subsection (7) that the condition is imposed under
subsection (6).
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) Applications may be made to the Administrative Appeals Tribunal for
review of decisions of APRA that have been confirmed or varied under subsection
51B(3).
(2) If a decision is taken, because of the operation of subsection 51B(4),
to be confirmed, section 29 of the Administrative Appeals Tribunal Act
1975 applies as if the prescribed time for making application for review of
the decision were the period beginning on the day on which the decision is taken
to be confirmed and ending on the 28th day after that day.
(3) If a person makes a request under subsection 51B(1) in respect of a
reviewable decision of APRA, section 41 of the Administrative Appeals
Tribunal Act 1975 applies as if the making of the request were the making of
an application to the Administrative Appeals Tribunal for a review of that
decision.
(4) The hearing of a proceeding relating to a reviewable decision of APRA
is to take place in private and the Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b) or (c) of
the Administrative Appeals Tribunal Act 1975.
(1) If a reviewable decision of APRA is made and notice in writing of the
decision is given to a person affected by the decision, the notice is to include
a statement to the effect that:
(a) the person may, if dissatisfied with the decision, seek a
reconsideration of the decision by APRA in accordance with subsection 51B(1);
and
(b) a person whose interests are affected by the decision may, subject to
the Administrative Appeals Tribunal Act 1975, if dissatisfied with a
decision made by APRA upon that reconsideration confirming or varying the
first-mentioned decision, apply to the Administrative Appeals Tribunal for a
review of the decision so confirmed or varied.
(2) A notice given to a person under subsection (1) may impose
conditions relating to the disclosure of any information setting out reasons for
the decision that is contained in, or in a document accompanying, the
notice.
(3) A person commits an offence if the person fails to comply with a
condition imposed under subsection (2).
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(4) If APRA confirms or varies a decision under subsection 51B(3) and
gives to a person notice in writing of the confirmation or variation of the
decision, the notice is to include a statement to the effect that a person whose
interests are affected by the decision may, subject to the Administrative
Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed or
varied, apply to the Administrative Appeals Tribunal for review of the
decision.
(5) Any failure to comply with the requirements of subsection (1) or
(4) in relation to a decision does not affect the validity of the
decision.
19 Section 61
Repeal the section, substitute:
(1) APRA may appoint a person to investigate and report on prudential
matters in relation to:
(a) a body corporate that is:
(i) an ADI; or
(ii) an authorised NOHC; or
(iii) a subsidiary of an ADI or of an authorised NOHC; or
(b) if a body corporate that is an ADI is a subsidiary of a foreign
corporation (whether or not the ADI is itself a foreign ADI):
(i) another subsidiary of the foreign corporation (other than a body
mentioned in paragraph (a), being a subsidiary that is incorporated in
Australia; or
(ii) the Australian operations of another subsidiary of the foreign
corporation (other than a body mentioned in paragraph (a), being a
subsidiary that is not incorporated in Australia and carries on business in
Australia;
if it is satisfied that such a report is necessary. The appointment must be
in writing and must specify the prudential matters that are to be the subject of
the investigation and report.
(2) If APRA has appointed a person under this section to investigate and
report on prudential matters in relation to a body corporate, the body corporate
must give the person access to its books, accounts and documents and must give
the person such information and facilities as the person requires to conduct the
investigation and produce the report.
(3) A body corporate commits an offence if:
(a) under subsection (1), APRA has appointed a person to investigate
and report on prudential matters in relation to the body corporate;
and
(b) the body corporate:
(i) does not give the person access to its books, accounts and documents;
or
(ii) fails to comply with a requirement made under subsection (2) for
the provision of information or facilities; and
(c) there is no order in force under section 11 determining that this
subsection does not apply to the body corporate.
Maximum penalty: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(4) Strict liability applies to:
(a) the physical element in subparagraph (3)(b)(ii) that the
requirement was made under subsection (2); and
(b) the physical element in paragraph (3)(c) that no orders making
determinations of a kind referred to in that paragraph are in force under
section 11.
(5) If a body corporate does or fails to do an act in circumstances that
give rise to the body corporate committing an offence against
subsection (3), the body corporate commits an offence against that
subsection in respect of:
(a) the first day on which the offence is committed; and
(b) each subsequent day (if any) on which the circumstances that gave rise
to the body corporate committing the offence continue (including the day of
conviction for any such offence or any later day).
Note: This subsection is not intended to imply that
section 4K of the Crimes Act 1914 does not apply to offences against
this Act or the regulations.
(6) Nothing in this section is intended to limit the operation of any
other provision of this Act.
20 At the end of paragraph
62(1)(a)
Add “or in respect of any member of a relevant group of bodies
corporate of which the ADI is a member”.
21 At the end of paragraph
62(1)(b)
Add “or in respect of any member of a relevant group of bodies
corporate of which the NOHC is a member”.
22 At the end of paragraph
62(1)(c)
Add “or in respect of any member of a relevant group of bodies
corporate of which the subsidiary is a member”.
23 After paragraph 62(1)(c)
Insert:
(ca) if an ADI is a subsidiary of a foreign corporation (whether or not
the ADI is itself a foreign ADI):
(i) another subsidiary of the foreign corporation (other than a body
mentioned in paragraph (a), (b) or (c) that is incorporated in Australia
may be required to give APRA information in respect of the subsidiary;
or
(ii) another subsidiary of the foreign corporation (other than a body
mentioned in paragraph (a), (b) or (c)) that is not incorporated in
Australia and carries on business in Australia may be required to give APRA
information in respect of its Australian operations;
24 After section 62
Insert:
(1) A member of a relevant group of bodies corporate commits an offence
if:
(a) it becomes aware of any of the following matters:
(i) it, or another member of the group, has committed a breach of a
prudential standard applying to it or to the other member, as the case may
be;
(ii) it, another member of the group, or the group as a whole, may not be
in a sound financial position;
(iii) another member of the group has committed a breach of this Act, the
regulations, a direction under Division 1BA or a condition of an authority
granted under this Act to the other member; and
(b) it fails to notify APRA of the matter immediately after it becomes
aware of the matter.
Penalty: 200 penalty units.
(2) If an individual:
(a) commits an offence against subsection (1) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1);
he or she is punishable, on conviction, by a fine not exceeding 40 penalty
units.
(3) A notification given to APRA of a matter mentioned in
paragraph (1)(a) must not include information, books, accounts or documents
with respect to the affairs of an individual customer of an ADI unless the
information, books, accounts or documents are in respect of prudential matters
relating to the ADI.
25 After subsection 69F(3)
Insert:
References to a subsidiary of a foreign corporation
(3A) This Act has, by force of this subsection, the effect it would have
if the Act separately provided as mentioned in the following
paragraphs:
(a) the Act has effect as if a reference to a subsidiary of a foreign
corporation were expressly limited to a reference to a subsidiary of a foreign
corporation, being a subsidiary that is a corporation to which paragraph 51(xx)
of the Constitution applies;
(b) the Act has effect as if a reference to a subsidiary of a foreign
corporation were expressly limited to a reference to a subsidiary of a foreign
corporation, being a subsidiary that carries on banking business as mentioned in
paragraph (a) of the banking business definition;
(c) the Act has effect as if a reference to a subsidiary of a foreign
corporation were expressly limited to a reference to a subsidiary of a foreign
corporation, being a subsidiary that carries on banking business as mentioned in
paragraph (b) of the banking business definition.
References to a body corporate that is a member of a relevant group of
bodies corporate
(3B) This Act has, by force of this subsection, the effect it would have
if the Act separately provided as mentioned in the following
paragraphs:
(a) the Act has effect as if a reference to a body corporate that is a
member of a relevant group of bodies corporate were expressly limited to a
reference to a body corporate, being a body corporate that is a corporation to
which paragraph 51(xx) of the Constitution applies;
(b) the Act has effect as if a reference to a body corporate that is a
member of a relevant group of bodies corporate were expressly limited to a
reference to a body corporate, being a body corporate that carries on banking
business as mentioned in paragraph (a) of the banking business
definition;
(c) the Act has effect as if a reference to a body corporate that is a
member of a relevant group of bodies corporate were expressly limited to a
reference to a body corporate, being a body corporate that carries on banking
business as mentioned in paragraph (b) of the banking business
definition;
26 Section 70A
Repeal the section, substitute:
(1) A person is not subject to any liability to any person in respect of
anything done, or omitted to be done, in good faith and without negligence in
the exercise or performance, or the purported exercise or performance, of
powers, functions or duties under this Act.
(2) To avoid doubt, any information provided by a person to APRA under
section 16C is taken, for the purposes of subsection (1), to be
provided in the exercise of a power or the performance of a function under this
Act.
(3) Subsection (1) does not apply to a person referred to in
section 58 of the Australian Prudential Regulation Authority Act
1998 and, to avoid doubt, does not affect the operation of that
section.
1 Section 9 (subparagraph (a)(ii) of
the definition of administrator)
Repeal the subparagraph.
2 Section 9 (paragraph (d) of the
definition of Corporations legislation)
After “of a State”, insert “, or by the Supreme Court of
the Northern Territory”.
3 Section 9 (definition of State Fair
Trading Act, column 3 of table item 7)
Omit “Fair Trading Act 1990”, substitute “Consumer
Affairs and Fair Trading Act 1990”.
4 Section 53
Omit “53AA”, substitute “53AA,”.
5 Section 91
Repeal the section.
6 Subsection 109X(2)
Omit “(in addition to the methods of service set out in
subsection (4))”.
7 Subsection 109X(6)
Repeal the subsection, substitute:
(6) This section does not affect:
(a) any other provision of this Act, or any provision of another law, that
permits; or
(b) the power of a court to authorise;
a document to be served in a different way.
8 Part 1.5 (paragraph 1.6, note in square
brackets)
Repeal the note, substitute:
9 Part 1.5 (paragraph 1.8, note in square
brackets)
Repeal the note, substitute:
10 Part 1.5 (paragraph
3.7)
Omit “in this jurisdiction”, substitute “in
Australia”.
11 Part 1.5 (paragraph 3.7,
note)
Repeal the note.
12 Part 1.5 (paragraph 5.1, note in square
brackets)
Repeal the note, substitute:
13 Part 1.5 (paragraph 5.2, note in square
brackets)
Omit “224C”, substitute “201G”.
14 Part 1.5 (paragraph
5.4)
Omit “A company must have a company secretary.”, substitute
“A company other than a proprietary company must have a company secretary.
However, a proprietary company may choose to have a company
secretary.”.
15 Part 1.5 (paragraph 5.4, note in square
brackets)
Omit “222A, 240, 242, 242C”, substitute “188, 204A-204G,
205A, 205B”.
16 Part 1.5 (section 7, first note in
square brackets)
Omit “, 240”.
17 Part 1.5 (section 9, first note in
square brackets)
Omit “1317H”, substitute “1317E, 1317G, 1317H,
1317P”.
18 Part 1.5 (paragraph 11.1, note in square
brackets)
Omit “246AA”, substitute “232-235”.
19 Part 1.5 (paragraph 12.3, note in square
brackets)
Repeal the note, substitute:
20 Part 1.5 (paragraph 12.4,
note)
Omit “5.5”, substitute “5.6”.
21 Section 141 (table items 32 (second
occurring) and 33 (second occurring)
Renumber as 33A and 33B respectively.
22 Subsection 188(1) (note)
Omit “203C”, substitute “204A”.
23 Subsection 219(2)
Omit “(1)(d)”, substitute “(1)(e)”.
24 Subsection 252Z(3) (second
occurring)
Renumber as subsection (3A).
25 Paragraph 254G(2)(e)
Omit “classes or”, substitute “classes
of”.
26 Subsection 273A(1)
(note)
Omit “273E”, substitute “273D”.
27 Subsection 273B(1)
(note)
Omit “273E”, substitute “273D”.
28 Subsections 273B(5) and
(6)
Repeal the subsections.
29 Subsection 273C(1)
(note)
Omit “273E”, substitute “273D”.
30 Subsections 273C(5) and
(6)
Repeal the subsections.
31 Subsections 319(5) and
(6)
Repeal the subsections.
32 Subsection 345(4)
Omit “242”, substitute “205B”.
33 Paragraphs 411(5)(a) and
(b)
Omit “meetings is”, substitute “meetings
are”.
34 Subparagraph
1280(2)(a)(i)
Omit “the Australian Society of Certified Practising
Accountants”, substitute “CPA Australia”.
35 Subparagraph
1282(2)(a)(i)
Omit “the Australian Society of Certified Practising
Accountants”, substitute “CPA Australia”.
36 Subsection 1306(4)
Omit “are to be construed”, substitute “is to be
construed”.
37 Subsection 1335(2)
Omit “is to be borne”, substitute “are to be
borne”.
38 Division 2 of Part 9.6A
(heading)
Repeal the heading, substitute:
39 Section 1408 (table
item 7)
Repeal the item, substitute:
|
7 |
Subsections 319(4), (5) and (6) |
40 Schedule 3 (table
item 112)
Omit “Subsections 318(1) and (5)”, substitute “Subsection
319(1)”.
41 Schedule 3 (after table
item 112)
Insert:
|
112A |
Section 320 |
25 penalty units or imprisonment for 6 months, or both |
|
112B |
Section 321 |
10 penalty units or imprisonment for 3 months, or both |
42 Schedule 4 (paragraphs 36(2)(a) and
(b))
Omit “Life Insurance Act 1996”, substitute
“Life Insurance Act 1995”.
1 Subsection 2(8)
Omit “Schedule 2”, substitute
“Schedule 1”.
2 Item 284 of
Schedule 3
Omit “a prescribed interest as defined in”, substitute “a
prescribed interest as defined by”.
3 Item 337 of
Schedule 3
Omit “a law referred to in paragraph (a)”, substitute
“a law referred to in paragraph (1)(a)”.
1 Subsection 14(1)
(penalty)
Omit “60”, substitute “300”.
2 After subsection 14(1)
Insert:
(1A) If an individual:
(a) commits an offence against subsection (1) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
3 Subsection 14(2) (note 3)
Repeal the note.
4 Subsection 17(8)
(penalty)
Omit “60”, substitute “300”.
5 After subsection 17(8)
Insert:
(8A) If an individual:
(a) commits an offence against subsection (8) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (8);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
6 Subsection 17(9)
Omit “subsection (8)”, substitute “this
section”.
7 Subsection 17(9) (note 3)
Repeal the note.
8 Subsection 20(1)
(penalty)
Omit “60”, substitute “300”.
9 After subsection 20(1)
Insert:
(1A) If an individual:
(a) commits an offence against subsection (1) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
10 Subsection 20(2) (note
3)
Repeal the note.
11 After subsection 27(3)
Insert:
(3A) If a submission is made to APRA under subsection (3), APRA must
have regard to the submission and may discuss any matter contained in the
submission with such persons as it considers appropriate for the purpose of
assessing the truth of the matter.
(3B) A notice given under subsection (3) to a person, a general
insurer or an authorised NOHC must state that any submissions made pursuant to
the notice may be discussed by APRA with other persons as mentioned in
subsection (3A).
12 Subsection 27(7)
(penalty)
Omit “60”, substitute “300”.
13 After subsection 27(7)
Insert:
(7A) If an individual:
(a) commits an offence against subsection (7) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (7);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
14 Subsection 27(8)
Omit “subsection (7)”, substitute “this
section”.
15 Subsection 27(8) (note
3)
Repeal the note.
16 At the end of Division 1 of Part
III
Add:
(1) A general insurer, an authorised NOHC or a subsidiary of a general
insurer or of an authorised NOHC commits an offence if:
(a) it becomes aware of:
(i) a breach by it of a prudential standard; or
(ii) any other matter or occurrence that materially affects its financial
position; and
(b) it fails to notify APRA, as soon as practicable, in writing of the
breach or of the other matter or occurrence, as the case may be.
Penalty: 200 penalty units.
(2) Subsection (1) does not apply to the notifying of information,
books, accounts or documents with respect to the affairs of an individual
insured person unless the information, books, accounts or documents are in
respect of prudential matters relating to the general insurer, authorised NOHC
or subsidiary of a general insurer or of an authorised NOHC in respect of which
the breach or the other matter or occurrence relates.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
17 Subsections 37(1), (2) and (3)
(penalty)
Omit “60”, substitute “300”.
18 After subsection 37(3)
Insert:
(3A) If an individual:
(a) commits an offence against subsection (1), (2) or (3) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1), (2) or (3);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
19 Subsection 37(4) (note
3)
Repeal the note.
20 Subsection 47(5)
(penalty)
Omit “60”, substitute “300”.
21 After subsection 47(5)
Insert:
(5A) If an individual:
(a) commits an offence against subsection (5) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (5);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
22 Subsection 47(6)
Omit “subsection (5)”, substitute “this
section”.
23 Subsection 47(6) (note
3)
Repeal the note.
24 Section 49L
(penalty)
Omit “60”, substitute “300”.
25 After subsection 49L(1)
Insert:
(1A) If an individual:
(a) commits an offence against subsection (1) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
26 Subsection 49L(2)
Omit “Subsection (1)”, substitute “An offence
against this section”.
27 Subsection 49L(2) (note
3)
Repeal the note.
28 Section 49P
(penalty)
Omit “60”, substitute “300”.
29 After subsection 49P(1)
Insert:
(1A) If an individual:
(a) commits an offence against subsection (1) because of
Part 2.4 of the Criminal Code; or
(b) commits an offence under Part 2.4 of the Criminal Code in
relation to an offence against subsection (1);
he or she is punishable, on conviction, by a fine not exceeding 60 penalty
units.
30 Subsection 49P(2) (note
3)
Repeal the note.
1 Section 337A
Repeal the section, substitute:
If:
(a) the Superannuation Complaints Tribunal made an award in an arbitration
conducted under an arbitration agreement entered into under the former
Part 7A of the Superannuation (Resolution of Complaints) Act 1993;
and
(b) the award is still in force;
nothing in this Act or any other law of the Commonwealth, in any law of a
State or Territory (whether written or unwritten) or in the governing rules of a
fund, scheme or trust prevents a trustee of a fund, scheme or trust from giving
effect to the award.
1 Subsection 3(2) (definition of
arbitration)
Repeal the definition.
2 Subsection 3(2) (definition of arbitration
agreement)
Repeal the definition.
3 Subsection 3(2) (definition of nominated
State or Territory)
Repeal the definition.
4 Subsection 3(2) (definition of party in
relation to an arbitration)
Repeal the definition.
5 Subsections 7(2) and (2A)
Repeal the subsections, substitute:
(2) The Tribunal Chairperson and the Tribunal Deputy Chairperson are to be
appointed by the Governor-General.
(2A) The Tribunal Chairperson may be appointed to hold office either on a
full-time basis or on a part time-basis.
(2B) The Tribunal Deputy Chairperson may be appointed to hold office
either on a full-time basis or on a part time-basis.
6 Paragraph 11(b)
Repeal the paragraph, substitute:
(b) if a complaint cannot be resolved by conciliation—the review of
the decision or conduct to which the complaint relates;
7 Paragraph 12(1)(b)
Repeal the paragraph, substitute:
(b) if the complaint cannot be resolved by conciliation—to review
the decision or conduct to which the complaint relates;
8 Paragraph 13(1)(c)
Omit “resolved; and”, substitute
“resolved.”.
9 Paragraph 13(1)(d)
Repeal the paragraph.
10 Subsection 14(6A)
Omit “The Tribunal”, substitute “Subject to
subsection (6BA), the Tribunal”.
11 Subsection 14(6B)
Omit “The Tribunal”, substitute “Subject to
subsection (6BA), the Tribunal”.
12 After subsection 14(6B)
Insert:
(6BA) Neither subsection (6A) nor (6B) prevents the Tribunal from
dealing with a complaint if the Tribunal determines that circumstances exist
that justify the Tribunal in dealing with the complaint.
(6BB) The Tribunal is to formulate in writing, and make available to the
public in any way that it considers appropriate, guidelines indicating the kinds
of circumstances in which it would ordinarily make a determination under
subsection (6BA).
13 Section 28
Repeal the section, substitute:
(1) The purpose of this section is to help the Tribunal to settle a
complaint in accordance with section 27.
(2) The Tribunal may, if it thinks it desirable to do so after considering
any documents given to it, by notice in writing given to:
(a) each party to the complaint; and
(b) any other person:
(i) who, in the Tribunal’s opinion, is likely to be able to provide
information relevant to the settlement of the complaint; or
(ii) whose presence at the conference would, in the Tribunal’s
opinion, be likely to be conducive to settling the complaint;
require the party or other person to attend a conciliation
conference.
(3) The notice must also fix the date, time and place for the
conference.
(4) If the complainant fails to attend the conference, the Tribunal may
deal with the complaint as if it had been withdrawn by the complainant under
section 21.
(5) A person, other than the complainant, commits an offence if he or she
does not attend a conference when required to do so under this
section.
Penalty: 30 penalty units or imprisonment for 6 months.
(6) If a party attending a conference is not proficient in English, the
Tribunal may recommend that communication with the party at the conference
proceed through an interpreter.
(7) The Tribunal is to formulate in writing, and make available to the
public in any way that it thinks appropriate, guidelines indicating the kinds of
circumstances in which it would ordinarily require persons to attend a
conciliation conference.
14 Subsection 30(2)
Repeal the subsection.
15 Subsections 32(1) and
(2)
Omit “Chairperson”.
16 Part 7A
Repeal the Part.
17 Subsection 59(1)
Omit “12(a)”, substitute “12(1)(a)”.
18 Subsection 59(1)
Omit “and 29”, substitute “, 29 and 32”.
19 Paragraph 59(2)(b)
Omit “Deputy Chairperson; and”, substitute “Deputy
Chairperson.”.
20 Paragraph 59(2)(c)
Repeal the paragraph.
21 Subsection 63(2)
After “64”, insert “, 64A”.
22 Paragraph 63(2)(a)
Omit “or arbitration”.
23 After paragraph 63(3)(a)
Insert:
(aa) to APRA if requested by APRA to do so; or
24 Sections 64 and 64A
Repeal the sections, substitute:
If, in connection with a complaint made to the Tribunal under this Act, a
Tribunal member becomes aware that a contravention of any law or of the
governing rules of a fund may have occurred, the Tribunal member:
(a) if he or she is not the Tribunal Chairperson—must give
particulars of the contravention to the Tribunal Chairperson; or
(b) if he or she is the Tribunal Chairperson:
(i) in the case of a contravention of a law that is administered by
APRA—must give particulars of the contravention to APRA and, if he or she
thinks it appropriate to do so, may also give particulars of the contravention
to ASIC; or
(ii) in any other case—must give particulars of the contravention to
ASIC and, if he or she thinks it appropriate to do so, may also give particulars
of the contravention to APRA.
If, in connection with a complaint made to the Tribunal under this Act, a
Tribunal member becomes aware of a breach in the terms and conditions relating
to an annuity policy, a life policy or an RSA, the Tribunal member:
(a) if he or she is not the Tribunal Chairperson—must give
particulars of the breach to the Tribunal Chairperson; or
(b) if he or she is the Tribunal Chairperson—must do one of the
following:
(i) give particulars of the breach to APRA;
(ii) give particulars of the breach to ASIC;
(iii) give particulars of the breach to both APRA and ASIC;
as he or she thinks appropriate.
25 Paragraph 65(1)(b)
Repeal the paragraph, substitute:
(b) if he or she is the Tribunal Chairperson—do one of the
following:
(i) give particulars of the refusal or failure to APRA;
(ii) give particulars of the refusal or failure to ASIC;
(iii) give particulars of the refusal or failure to both APRA and
ASIC;
as he or she thinks appropriate.