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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Financial Accountability Regime Bill
2022
No. , 2022
(Treasury)
A Bill for an Act to provide for a strengthened
accountability framework for financial entities in
the banking, insurance and superannuation
industries, and for related purposes
No. , 2022
Financial Accountability Regime Bill 2022
i
Contents
Chapter 1--Introduction
2
Part 1--Preliminary provisions
2
1
Short title ........................................................................................... 2
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 3
5
Act binds the Crown .......................................................................... 4
6
Extension to external Territories ....................................................... 4
7
Extra-territorial application ............................................................... 4
Part 2--Interpretation
5
8
Definitions ......................................................................................... 5
9
Meaning of
accountable entity
.......................................................... 9
10
Meaning of
accountable person
...................................................... 10
11
When a person is not an
accountable person
................................... 12
12
Meaning of
significant related entity
............................................... 13
13
Meaning of
constitutionally covered body
....................................... 15
Chapter 2--Obligations under the Financial
Accountability Regime
16
Part 1--Introduction
16
14
Simplified outline of this Chapter .................................................... 16
Part 2--Obligations of accountable entities and accountable
persons
18
Division 1--Accountable entities
18
15
Obligations of accountable entities .................................................. 18
16
Minister may exempt accountable entities ....................................... 18
17
Inconsistency with corresponding foreign laws ............................... 19
Division 2--Accountable persons
20
18
Obligations of accountable persons ................................................. 20
19
Inconsistency with corresponding foreign laws ............................... 20
Part 3--Accountability obligations
22
20
The accountability obligations of an accountable entity .................. 22
21
The accountability obligations of an accountable person ................ 22
22
Taking reasonable steps ................................................................... 24
ii
Financial Accountability Regime Bill 2022
No. , 2022
Part 4--Key personnel obligations
25
23
The key personnel obligations of an accountable entity .................. 25
24
People prohibited from being an accountable person ...................... 26
Part 5--Deferred remuneration obligations
28
25
The deferred remuneration obligations of an accountable
entity ................................................................................................ 28
26
Meaning of
variable remuneration
.................................................. 29
27
Minimum amount of variable remuneration to be deferred ............. 30
28
Minimum deferral period for variable remuneration ....................... 32
29
Exemption for small amounts of variable remuneration .................. 34
30
Exemption for variable remuneration payable for temporary
performance ..................................................................................... 35
Part 6--Notification obligations
36
31
The notification obligations of an accountable entity ...................... 36
32
Events for which the Regulator must be notified ............................. 38
33
Accountability statements ................................................................ 39
34
Accountability map ......................................................................... 39
Chapter 3--Administration
40
Part 1--Introduction
40
35
Simplified outline of this Chapter .................................................... 40
Part 2--The Regulator
41
Division 1--Arrangements for administration
41
36
Administration of this Act ............................................................... 41
37
Arrangement for administration ...................................................... 43
38
Agreement about exercise of powers ............................................... 43
Division 2--Information sharing
45
39
Disclosure of information and documents between APRA
and ASIC ......................................................................................... 45
Part 3--Registration and disqualification of accountable
persons
47
Division 1--Registration of accountable persons
47
40
Register of accountable persons ...................................................... 47
41
Registration of a person as an accountable person........................... 48
Division 2--Disqualification of accountable persons
49
42
Regulator may disqualify an accountable person............................. 49
43
Regulator may vary or revoke a disqualification ............................. 50
No. , 2022
Financial Accountability Regime Bill 2022
iii
44
Allowing a person disqualified by the Regulator to act as an
accountable person .......................................................................... 51
Part 4--Regulatory powers and enforcement
52
Division 1--Investigations
52
45
Regulator may appoint an investigator ............................................ 52
46
Requirement to assist investigator ................................................... 53
47
Investigator may require production of books etc............................ 53
48
Concealing books, accounts or documents relevant to
investigation .................................................................................... 54
Division 2--Examinations
55
49
Notice requiring appearance for examination .................................. 55
50
Conduct of examinations ................................................................. 55
51
Who may be present at examinations .............................................. 56
52
Record of examination..................................................................... 57
53
Offences .......................................................................................... 57
Division 3--Evidentiary use of certain material
58
54
Statements made at an examination--proceedings against
examinee .......................................................................................... 58
55
Statements made at an examination--other proceedings ................. 59
56
Weight of evidence under section 55 ............................................... 60
57
Objection to admission of statements made at examination ............ 61
58
Copies of, or extracts from, certain books, accounts and
documents ........................................................................................ 62
59
Admissibility of investigation report ............................................... 63
60
Exceptions to admissibility of investigation report .......................... 63
61
Material otherwise admissible ......................................................... 64
Division 4--Requesting information
65
62
Regulator may request information ................................................. 65
63
Failing to give information .............................................................. 67
Division 5--Regulator's power to issue directions
68
Subdivision A--Kinds of directions
68
64
Direction dealing with non-compliance ........................................... 68
65
Direction to reallocate responsibilities............................................. 70
Subdivision B--Non-compliance with directions
72
66
Offence provision for non-compliance with a direction .................. 72
Subdivision C--Secrecy and disclosure provisions relating to
directions
73
iv
Financial Accountability Regime Bill 2022
No. , 2022
67
Regulator may determine that a direction is covered by
secrecy provision ............................................................................. 73
68
Secrecy relating to directions........................................................... 74
69
Disclosure of publicly available information ................................... 75
70
Disclosure allowed by the Regulator ............................................... 75
71
Disclosure for the purpose of seeking review or legal advice .......... 76
72
Disclosure under the APRA Act ...................................................... 77
73
Disclosure under the ASIC Act ....................................................... 78
74
Disclosure in circumstances set out in the Minister rules ................ 78
75
Disclosure for purpose ..................................................................... 78
76
Exceptions operate independently ................................................... 79
Subdivision D--Other provisions relating to directions
79
77
Direction not grounds for denial of obligations ............................... 79
78
Information to the Minister about certain directions........................ 80
79
Relationship with other laws ........................................................... 81
Division 6--Civil penalties
82
80
Civil penalty provision for non-compliance with obligations .......... 82
81
Ancillary contravention of civil penalty provisions ......................... 82
82
Civil penalty provisions--enforcement ........................................... 83
83
Civil penalty provisions--amount of penalty .................................. 84
Division 7--Enforceable undertakings
86
84
Enforceable undertakings ................................................................ 86
Division 8--Injunctions
88
85
Injunctions ....................................................................................... 88
Division 9--Miscellaneous
89
86
Physical elements of offences .......................................................... 89
87
Contravening an offence provision or a civil penalty
provision .......................................................................................... 89
88
Self-incrimination ............................................................................ 89
89
Legal professional privilege ............................................................ 90
90
Powers of Court relating to non-compliance with this Act .............. 91
Part 5--Review of decisions
92
91
Reviewable decisions ...................................................................... 92
92
Notice of decisions and review rights .............................................. 95
93
Affected person may request reconsideration of reviewable
decision............................................................................................ 95
94
Reconsideration of reviewable decision .......................................... 96
95
Review by the Administrative Appeals Tribunal ............................. 97
No. , 2022
Financial Accountability Regime Bill 2022
v
Part 6--Miscellaneous
98
96
Disclosure for the purpose of seeking review or legal advice .......... 98
97
Indemnifying accountable entities ................................................... 98
98
Causes of action not created ............................................................ 99
99
Compensation for acquisition of property ....................................... 99
100
Conduct of directors, employees and agents .................................... 99
101
Protection from liability--general ................................................. 101
102
Protection from liability--directions and secrecy ......................... 101
103
Protection from liability--provisions do not limit each other ....... 102
104
Minister rules ................................................................................. 102
105
Regulator rules .............................................................................. 103
No. , 2022
Financial Accountability Regime Bill 2022
1
A Bill for an Act to provide for a strengthened
1
accountability framework for financial entities in
2
the banking, insurance and superannuation
3
industries, and for related purposes
4
The Parliament of Australia enacts:
5
Chapter 1
Introduction
Part 1
Preliminary provisions
Section 1
2
Financial Accountability Regime Bill 2022
No. , 2022
Chapter 1--Introduction
1
Part 1--Preliminary provisions
2
3
1 Short title
4
This Act is the
Financial Accountability Regime Act 2022
.
5
2 Commencement
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
12
enacted. It will not be amended to deal with any later amendments of
13
this Act.
14
(2) Any information in column 3 of the table is not part of this Act.
15
Information may be inserted in this column, or information in it
16
may be edited, in any published version of this Act.
17
3 Objects of this Act
18
The objects of this Act are:
19
(a) to provide for a strengthened accountability framework for:
20
(i) financial entities in the banking, insurance and
21
superannuation industries; and
22
(ii) persons who hold certain positions, or have certain
23
responsibilities, related to those financial entities; and
24
Introduction
Chapter 1
Preliminary provisions
Part 1
Section 4
No. , 2022
Financial Accountability Regime Bill 2022
3
(b) to confer on APRA and ASIC functions and powers
1
(including information gathering, investigation and
2
enforcement powers) that:
3
(i) relate to obligations under that framework; and
4
(ii) can be performed and exercised in aid of their functions
5
and powers under other laws.
6
4 Simplified outline of this Act
7
This Act establishes a strengthened accountability framework for
8
financial entities in the banking, insurance and superannuation
9
industries that are regulated by Acts under which APRA is the
10
prudential or principal regulator. These entities are called
11
accountable entities.
12
The framework is intended to ensure that accountable entities take
13
reasonable steps:
14
(a)
to conduct their business with honesty and integrity, and
15
with due skill, care and diligence; and
16
(b)
to deal with APRA and ASIC in an open, constructive
17
and cooperative way; and
18
(c)
to prevent adverse effects on their prudential standing or
19
prudential reputation; and
20
(d)
to ensure that their senior executives and other key
21
personnel (called accountable persons) meet those same
22
standards of conduct, and take reasonable steps to ensure
23
compliance with applicable laws; and
24
(e)
to ensure that related entities whose business and
25
activities materially and substantially affect the
26
accountable entities (called significant related entities)
27
comply with the framework in the same way as the
28
accountable entities themselves.
29
Note:
Other entities that hold Australian financial services licences or
30
Australian credit licences are not covered by the framework in this Act.
31
Accountable entities are subject to a series of obligations that
32
enable oversight and enforcement by APRA and ASIC (together
33
Chapter 1
Introduction
Part 1
Preliminary provisions
Section 5
4
Financial Accountability Regime Bill 2022
No. , 2022
called the Regulator). These are enforced mainly through civil
1
penalties for non-compliance.
2
Accountable persons are also subject to obligations, which can be
3
enforced by accountable entities through reduction of deferred
4
remuneration, or by the Regulator through disqualification.
5
A range of compliance and enforcement powers are provided for,
6
including by applying the
Regulatory Powers (Standard
7
Provisions) Act 2014
.
8
5 Act binds the Crown
9
(1) This Act binds the Crown in each of its capacities.
10
(2) This Act does not make the Crown liable to be prosecuted for an
11
offence.
12
6 Extension to external Territories
13
This Act extends to every external Territory.
14
7 Extra-territorial application
15
This Act extends to acts, omissions, matters and things outside
16
Australia.
17
Note:
The expression
this Act
includes the Regulatory Powers Act as it
18
applies in relation to this Act (see section 8).
19
Introduction
Chapter 1
Interpretation
Part 2
Section 8
No. , 2022
Financial Accountability Regime Bill 2022
5
Part 2--Interpretation
1
2
8 Definitions
3
In this Act:
4
accountability map
: see subsection 31(2).
5
accountability statement
: see subsection 31(2).
6
accountable entity
: see section 9.
7
accountable person
: see sections 10 and 11.
8
ADI
has the same meaning as in the
Banking Act 1959
.
9
Note:
ADI is short for authorised deposit-taking institution.
10
affected person
: see section 91.
11
annual turnover
, of an accountable entity during a 12-month
12
period, has the same meaning as in section 761A of the
13
Corporations Act 2001
.
14
APRA
means the Australian Prudential Regulation Authority.
15
APRA staff member
has the same meaning as in the
Australian
16
Prudential Regulation Authority Act 1998
.
17
ASIC
means the Australian Securities and Investments
18
Commission.
19
ASIC staff member
means a staff member within the meaning of
20
the
Australian Securities and Investments Commission Act 2001
.
21
Australia
, when used in a geographical sense, includes the external
22
Territories.
23
authorised NOHC
:
24
(a) of an ADI--means an authorised NOHC (within the meaning
25
of the
Banking Act 1959
) of the ADI; and
26
Chapter 1
Introduction
Part 2
Interpretation
Section 8
6
Financial Accountability Regime Bill 2022
No. , 2022
(b) of a general insurer--means an authorised NOHC (within the
1
meaning of the
Insurance Act 1973
) of the general insurer.
2
Note:
NOHC is short for non-operating holding company.
3
benefit derived and detriment avoided
has the same meaning as in
4
the
Corporations Act 2001
.
5
civil penalty order
has the same meaning as in the Regulatory
6
Powers Act.
7
civil penalty provision
has the same meaning as in the Regulatory
8
Powers Act.
9
connected entity
, in relation to an RSE licensee, means a
10
connected entity (within the meaning of the
Superannuation
11
Industry (Supervision) Act 1993
) of the RSE licensee.
12
constitutional corporation
means a corporation to which
13
paragraph 51(xx) of the Constitution applies.
14
constitutionally covered body
: see section 13.
15
decision-maker
for a reviewable decision means:
16
(a) if APRA made the reviewable decision--APRA; or
17
(b) if ASIC made the reviewable decision--ASIC.
18
enhanced notification threshold
: see subsection 31(3).
19
financial year
, in relation to an accountable entity or significant
20
related entity:
21
(a) if the accountable entity or significant related entity is a
22
company that is registered under the
Corporations Act
23
2001
--has the same meaning as in that Act; or
24
(b) if:
25
(i) the accountable entity or significant related entity is not
26
a company that is registered under the
Corporations Act
27
2001
; and
28
(ii) the accountable entity or significant related entity is
29
incorporated or registered under another law; and
30
(iii) a definition of
financial year
applies in relation to that
31
other law;
32
Introduction
Chapter 1
Interpretation
Part 2
Section 8
No. , 2022
Financial Accountability Regime Bill 2022
7
has the same meaning as in that other law; or
1
(c) in any other case--means a period of 12 months starting on
2
1 July.
3
foreign accountable entity
means:
4
(a) a foreign ADI (within the meaning of the
Banking Act 1959
);
5
or
6
(b) a foreign general insurer (within the meaning of the
7
Insurance Act 1973
); or
8
(c) an eligible foreign life insurance company (within the
9
meaning of the
Life Insurance Act 1995
) that is registered
10
under section 21 of the
Life Insurance Act 1995.
11
general insurer
has the same meaning as in the
Insurance Act
12
1973
.
13
internal decision reviewer
: see subsection 94(1).
14
investigator
means a person the Regulator appoints under
15
subsection 45(1).
16
lawyer
means a duly qualified legal practitioner and, in relation to
17
a person, means such a practitioner acting for the person.
18
life company
means a body corporate that is registered under
19
section 21 of the
Life Insurance Act 1995
.
20
minimum deferral period
, for variable remuneration of an
21
accountable person, has the meaning given by subsection 28(1).
22
Minister rules
means the rules made under subsection 104(1).
23
officer
has the meaning given by section 9 of the
Corporations Act
24
2001
.
25
private health insurer
has the same meaning as in the
Private
26
Health Insurance (Prudential Supervision) Act 2015
.
27
reconsideration decision
means a decision made under
28
subsection 94(2).
29
Chapter 1
Introduction
Part 2
Interpretation
Section 8
8
Financial Accountability Regime Bill 2022
No. , 2022
registered NOHC
, of a life company, means a registered NOHC
1
(within the meaning of the
Life Insurance Act 1995
) of the life
2
company.
3
Note:
NOHC is short for non-operating holding company.
4
Regulator
means either APRA or ASIC, but, if the context requires
5
the reference to be particularly to one of those bodies, then
6
Regulator means that body.
7
Note:
However, ASIC is to perform functions and exercise powers under
8
this Act only in relation to certain persons: see subsection 36(2).
9
Regulator rules
means the rules made under subsection 105(1).
10
Regulatory Powers Act
means the
Regulatory Powers (Standard
11
Provisions) Act 2014
.
12
related
: the question whether 2 bodies corporate are
related
to each
13
other is to be determined for the purposes of this Act in the same
14
way as for the purposes of the
Corporations Act 2001
.
15
relevant group
,
of an accountable entity, means the accountable
16
entity and its significant related entities.
17
remuneration
, of an accountable person, has a meaning affected
18
by subsection 25(3).
19
reviewable decision
: see section 91.
20
RSE licensee
means a constitutional corporation, or a body
21
corporate, that:
22
(a) holds an RSE licence granted under section 29D of the
23
Superannuation Industry (Supervision) Act 1993
; and
24
(b) is not the trustee of a fund that is an exempt public sector
25
superannuation scheme (within the meaning of that Act).
26
significant related entity
has the meaning given by section 12.
27
subsidiary
: the question whether a body corporate is a
subsidiary
28
of another body corporate is to be determined for the purposes of
29
this Act in the same way as for the purposes of the
Corporations
30
Act 2001
.
31
Introduction
Chapter 1
Interpretation
Part 2
Section 9
No. , 2022
Financial Accountability Regime Bill 2022
9
this Act
includes:
1
(a) the Minister rules; and
2
(b) the Regulator rules; and
3
(c) the Regulatory Powers Act as it applies in relation to this
4
Act.
5
variable remuneration
has the meaning given by section 26.
6
9 Meaning of accountable entity
7
ADIs and authorised NOHCs of ADIs
8
(1) A body corporate is an
accountable entity
if both of the following
9
apply to the body corporate:
10
(a) it is an ADI or an authorised NOHC of an ADI;
11
(b) it is a constitutionally covered body.
12
Note:
For when a body corporate is a
constitutionally covered body
, see
13
section 13.
14
(2) The ADI or authorised NOHC is an
accountable entity
from the
15
start of the later of:
16
(a) the day that is 6 months after the commencement of this Act;
17
and
18
(b) the day on which it becomes an ADI or authorised NOHC, as
19
the case may be.
20
Other bodies corporate
21
(3) A body corporate is an
accountable entity
if both of the following
22
apply to the body corporate:
23
(a) it is:
24
(i) a general insurer; or
25
(ii) an authorised NOHC of a general insurer; or
26
(iii) a life company; or
27
(iv) a registered NOHC of a life company; or
28
(v) a private health insurer; or
29
(vi) an RSE licensee;
30
(b) it is a constitutionally covered body.
31
Chapter 1
Introduction
Part 2
Interpretation
Section 10
10
Financial Accountability Regime Bill 2022
No. , 2022
(4) The body corporate is an
accountable entity
from the start of the
1
later of:
2
(a) the day that is 18 months after the commencement of this
3
Act; and
4
(b) the day on which it becomes a body corporate covered by the
5
relevant subparagraph of paragraph (3)(a).
6
10 Meaning of accountable person
7
Accountable persons of accountable entities
8
(1) An individual is an
accountable person
of an accountable entity if:
9
(a) either of the following applies:
10
(i) in the case of an accountable entity other than an RSE
11
licensee--the person holds a position in the accountable
12
entity or in another body corporate of which the
13
accountable entity is a subsidiary;
14
(ii) in the case of an accountable entity that is an RSE
15
licensee--the person holds a position in the accountable
16
entity or in another body corporate of which the
17
accountable entity is a connected entity; and
18
(b) because of that position, the person has actual or effective
19
senior executive responsibility:
20
(i) for management or control of the accountable entity; or
21
(ii) for management or control of a significant or substantial
22
part or aspect of the operations of the accountable entity
23
or the accountable entity's relevant group.
24
Note 1:
For the definitions of
connected entity
,
relevant group
and
25
subsidiary
, see section 8.
26
Note 2:
This section is subject to section 11 (when a person is not an
27
accountable person).
28
Prescribed responsibilities and positions
29
(2) An individual is an
accountable person
of an accountable entity if
30
the person:
31
(a) holds a position in, or relating to, the accountable entity; and
32
Introduction
Chapter 1
Interpretation
Part 2
Section 10
No. , 2022
Financial Accountability Regime Bill 2022
11
(b) because of that position has a responsibility, relating to the
1
accountable entity, prescribed by the Minister rules for the
2
purposes of this paragraph
.
3
(3) If an individual holds a position in an accountable entity that is a
4
position prescribed by the Minister rules for the purposes of this
5
subsection, then:
6
(a) the individual is an
accountable person
of the accountable
7
entity; and
8
(b) for the purposes of this Act, the responsibilities associated
9
with that position are responsibilities that cause the
10
individual to be an accountable person of the accountable
11
entity.
12
(4) The Minister rules:
13
(a) may prescribe responsibilities relating to accountable entities
14
for the purposes of paragraph (2)(b); and
15
(b) may prescribe positions in accountable entities for the
16
purposes of subsection (3).
17
Note:
For example, the Minister rules could prescribe responsibilities
18
relating to accountable entities for the purposes of paragraph (2)(b) by
19
reference to one or more of the following:
20
(a) a level of responsibility;
21
(b) responsibility for a matter;
22
(c) accountable entities of a particular kind.
23
Accountable persons of foreign accountable entities
24
(5) An individual is an
accountable person
of an accountable entity
25
that is a foreign accountable entity if the person:
26
(a) has a responsibility of a kind mentioned in subsection (1) or
27
(2); or
28
(b) holds a position of a kind mentioned in subsection (3);
29
in relation to a branch of the accountable entity that is operating in
30
Australia.
31
Accountable persons of significant related entities
32
(6) An individual is an
accountable person
of a significant related
33
entity of an accountable entity if:
34
Chapter 1
Introduction
Part 2
Interpretation
Section 11
12
Financial Accountability Regime Bill 2022
No. , 2022
(a) the person holds a position in the significant related entity;
1
and
2
(b) because of that position, the person has actual or effective
3
senior executive responsibility:
4
(i) for management or control of the accountable entity; or
5
(ii) for management or control of a significant or substantial
6
part or aspect of the operations of the accountable entity
7
or the accountable entity's relevant group.
8
Note:
For the definitions of
relevant group
and
significant related entity
,
9
see section 8.
10
Alternative tests
11
(7) An individual can be an
accountable person
of an accountable
12
entity (other than a foreign accountable entity) because of one or
13
more of subsections (1), (2) and (3). An individual can be an
14
accountable person
of a foreign accountable entity only because of
15
subsection (5).
16
11 When a person is not an accountable person
17
When persons are not accountable persons
18
(1) A person is not an
accountable person
of an accountable entity, or
19
of a significant related entity, if each of the person's
20
responsibilities that would (apart from this subsection) cause the
21
person to be an accountable person of the entity is either:
22
(a) a responsibility excluded under subsection (2) in relation to
23
the entity; or
24
(b) a responsibility excluded under subsection (3) in relation to a
25
class of accountable entities or significant related entities that
26
includes that accountable entity or significant related entity.
27
(2) For the purposes of paragraph (1)(a), the Regulator may, by written
28
notice given to an accountable entity or a significant related entity,
29
exclude specified responsibilities.
30
(3) For the purposes of paragraph (1)(b), the Regulator rules may
31
exclude specified responsibilities relating to:
32
Introduction
Chapter 1
Interpretation
Part 2
Section 12
No. , 2022
Financial Accountability Regime Bill 2022
13
(a) a specified class of accountable entities; or
1
(b) a specified class of significant related entities.
2
Relationship with other provisions
3
(4) This section has effect despite section 10.
4
Notice not a legislative instrument
5
(5) A notice under subsection (2) is not a legislative instrument.
6
12 Meaning of significant related entity
7
Significant related entities of accountable entities other than RSE
8
licensees
9
(1) Subject to subsection (2), a body corporate is a
significant related
10
entity
of an accountable entity that is not an RSE licensee if all of
11
the following apply to the body corporate:
12
(a) it is a subsidiary of the accountable entity;
13
(b) it, or its business or activities, has (or is likely to have) an
14
effect on the accountable entity, or the business or activities
15
of the accountable entity, that is material and substantial;
16
(c) it is a constitutionally covered body;
17
(d) it is not an accountable entity itself.
18
Note 1:
For the definition of
subsidiary
, see section 8.
19
Note 2:
For when a body corporate is a
constitutionally covered body
, see
20
section 13.
21
(2) A body corporate is not a
significant related entity
of an
22
accountable entity (the
first accountable entity
) if:
23
(a) the body corporate is also a subsidiary
of another accountable
24
entity; and
25
(b) that other accountable entity is a subsidiary of the first
26
accountable entity.
27
Example: Company A is a subsidiary of the authorised NOHC of an ADI, and
28
also a subsidiary of the ADI. Both the ADI and the authorised NOHC
29
are accountable entities. Under this subsection:
30
Chapter 1
Introduction
Part 2
Interpretation
Section 12
14
Financial Accountability Regime Bill 2022
No. , 2022
(a) if the business of Company A has a material and substantial
1
effect on both the ADI and the authorised NOHC--Company A
2
would be a significant related entity only in relation to the ADI;
3
but
4
(b) if the business of Company A did not have a material and
5
substantial effect on the ADI--Company A would not be a
6
significant related entity in relation to either the ADI or the
7
authorised NOHC.
8
Significant related entities of accountable entities that are RSE
9
licensees
10
(3) A body corporate is a
significant related entity
of an accountable
11
entity that is an RSE licensee if all of the following apply to the
12
body corporate:
13
(a) it is a connected entity of the accountable entity;
14
(b) it, or its business or activities, has (or is likely to have) an
15
effect on the accountable entity, or the business or activities
16
of the accountable entity, that is material and substantial;
17
(c) it is a constitutionally covered body;
18
(d) it is not an accountable entity itself.
19
Note:
For the definition of
connected entity
, see section 8.
20
Material and substantial effect
21
(4) For the purposes of paragraphs (1)(b) and (3)(b), in determining
22
whether a body corporate has (or is likely to have) an effect on an
23
accountable entity, or the business or activities of an accountable
24
entity, that is material and substantial, the following matters may
25
be taken into account:
26
(a) the nature of the body corporate's business or activities;
27
(b) the scale of the body corporate's business or activities;
28
(c) the nature and extent of any interdependency between the
29
body corporate and the accountable entity;
30
(d) any organisational, financial or administrative arrangements
31
between the body corporate and the accountable entity;
32
(e) any other relevant matter.
33
Introduction
Chapter 1
Interpretation
Part 2
Section 13
No. , 2022
Financial Accountability Regime Bill 2022
15
13 Meaning of constitutionally covered body
1
(1) A body corporate is a
constitutionally covered body
if any of the
2
following apply to the body corporate:
3
(a) it is a constitutional corporation;
4
(b) it carries on the business of banking (within the meaning of
5
paragraph 51(xiii) of the Constitution), other than State
6
banking not extending beyond the limits of the State
7
concerned;
8
(c) it carries on the business of insurance (within the meaning of
9
paragraph 51(xiv) of the Constitution), other than State
10
insurance not extending beyond the limits of the State
11
concerned;
12
(d) it is the trustee of a superannuation fund (within the meaning
13
of the
Superannuation Industry (Supervision) Act 1993
) the
14
sole or primary purpose of which is the provision of old-age
15
pensions (within the meaning of paragraph 51(xxiii) of the
16
Constitution).
17
(2) A body corporate is also a
constitutionally covered body
if:
18
(a) the conduct of the body corporate affects (or is capable of
19
affecting) the activities, functions, relationships or business
20
of another body corporate; and
21
(b) the other body corporate is covered by paragraph (1)(a), (b),
22
(c) or (d).
23
Chapter 2
Obligations under the Financial Accountability Regime
Part 1
Introduction
Section 14
16
Financial Accountability Regime Bill 2022
No. , 2022
Chapter 2--Obligations under the Financial
1
Accountability Regime
2
Part 1--Introduction
3
4
14 Simplified outline of this Chapter
5
Entities of the following kinds are accountable entities:
6
(a)
an authorised deposit-taking institution (ADI);
7
(b)
an authorised non-operating holding company (NOHC)
8
of an ADI;
9
(c)
a general insurer;
10
(d)
an authorised NOHC of a general insurer;
11
(e)
a life company;
12
(f)
a registered NOHC of a life company;
13
(g)
a private health insurer;
14
(h)
an RSE licensee.
15
Note:
RSE is short for registrable superannuation entity.
16
An accountable person is primarily someone who has actual or
17
effective senior executive responsibility for management or control
18
of an accountable entity, or of a significant or substantial part or
19
aspect of the operations of the entity or its corporate group. Rules
20
made by the Minister can prescribe other responsibilities and
21
positions that cause a person to be an accountable person.
22
An accountable entity must comply with:
23
(a)
accountability obligations under Part 3; and
24
(b)
key personnel obligations under Part 4, including to
25
ensure that responsibilities covering all parts of its
26
business are appropriately allocated to accountable
27
persons who are registered with the Regulator and not
28
disqualified; and
29
Obligations under the Financial Accountability Regime
Chapter 2
Introduction
Part 1
Section 14
No. , 2022
Financial Accountability Regime Bill 2022
17
(c)
obligations under Part 5 to defer a prescribed portion of
1
the variable remuneration of its accountable persons to
2
ensure compliance with their obligations; and
3
(d)
obligations under Part 6 to notify the Regulator of
4
matters relating to accountable persons and their
5
responsibilities.
6
An accountable entity that fails to comply with any of these
7
obligations is liable to a civil penalty.
8
Accountable persons also have accountability obligations under
9
Part 3. Failure by an accountable person to comply with any of
10
those obligations may lead to reduction of their variable
11
remuneration or disqualification by the Regulator.
12
A foreign accountable entity is subject to obligations only to the
13
extent that it operates a branch of the foreign accountable entity in
14
Australia.
15
Chapter 2
Obligations under the Financial Accountability Regime
Part 2
Obligations of accountable entities and accountable persons
Division 1
Accountable entities
Section 15
18
Financial Accountability Regime Bill 2022
No. , 2022
Part 2--Obligations of accountable entities and
1
accountable persons
2
Division 1--Accountable entities
3
15 Obligations of accountable entities
4
(1) An accountable entity must comply with each one of the following:
5
(a) its accountability obligations under Part 3;
6
(b) its key personnel obligations under Part 4;
7
(c) its deferred remuneration obligations under Part 5;
8
(d) its notification obligations under Part 6.
9
Note:
Failure to comply with an obligation under this Chapter is a
10
contravention of a civil penalty provision (see section 80).
11
(2) Subsection (1) does not apply to:
12
(a) an accountable entity that:
13
(i) the Minister has exempted under section 16; or
14
(ii) is included in a class of accountable entities that the
15
Minister has exempted under section 16; or
16
(b) a foreign accountable entity, except to the extent that it
17
operates a branch of the foreign accountable entity in
18
Australia.
19
(3) Subsection (1) does not apply to an accountable entity and an
20
obligation to the extent that the accountable entity is not required
21
to comply with the obligation because of subsection 17(2).
22
16 Minister may exempt accountable entities
23
Exemption of particular accountable entities
24
(1) The Minister may, by written notice given to an accountable entity,
25
exempt the accountable entity from compliance with this Chapter.
26
Obligations under the Financial Accountability Regime
Chapter 2
Obligations of accountable entities and accountable persons
Part 2
Accountable entities
Division 1
Section 17
No. , 2022
Financial Accountability Regime Bill 2022
19
Class exemptions
1
(2) The Minister may, by legislative instrument, exempt a class of
2
accountable entities from compliance with this Chapter.
3
Notice not a legislative instrument
4
(3) A notice under subsection (1) is not a legislative instrument.
5
17 Inconsistency with corresponding foreign laws
6
(1) If the Regulator is satisfied that an accountable entity would
7
contravene a law of a foreign country if the accountable entity
8
were to comply with a particular obligation under section 15, the
9
Regulator may:
10
(a) give a written notice specifying that obligation to the
11
accountable entity; and
12
(b) specify in the notice:
13
(i) the extent to which the accountable entity need not
14
comply with that obligation; and
15
(ii) conditions to which the notice is subject.
16
Note:
A decision not to specify an obligation, or to specify conditions, is a
17
reviewable decision (see Part 5 of Chapter 3).
18
(2) The accountable entity is not required to comply with that
19
obligation:
20
(a) to the extent compliance would result in the accountable
21
entity contravening that law of a foreign country; or
22
(b) if the notice specifies the extent to which the accountable
23
entity need not comply with that obligation--to the extent so
24
specified;
25
if the conditions (if any) specified in the notice are complied with.
26
(3) A notice under subsection (1) is not a legislative instrument.
27
Chapter 2
Obligations under the Financial Accountability Regime
Part 2
Obligations of accountable entities and accountable persons
Division 2
Accountable persons
Section 18
20
Financial Accountability Regime Bill 2022
No. , 2022
Division 2--Accountable persons
1
18 Obligations of accountable persons
2
(1) An accountable person must comply with each of the person's
3
accountability obligations under Part 3 in relation to each of the
4
responsibilities that cause the person to be an accountable person
5
of an accountable entity or a significant related entity.
6
(2) Subsection (1) does not apply to an accountable person of an
7
accountable entity
to which section 15 does not apply because of
8
paragraph 15(2)(a).
9
(3) Subsection (1) applies to an accountable person of a foreign
10
accountable entity only in relation to a branch of the accountable
11
entity that is operating in Australia.
12
(4) Subsection (1) does not apply to an accountable person and an
13
obligation to the extent that the accountable person is not required
14
to comply with the obligation because of subsection 19(2).
15
19 Inconsistency with corresponding foreign laws
16
(1) If the Regulator is satisfied that an accountable person of an
17
accountable entity, or of a significant related entity, would
18
contravene a law of a foreign country if the person were to comply
19
with a particular obligation under section 18, the Regulator may:
20
(a) give a written notice specifying that obligation to the
21
accountable person; and
22
(b) specify in the notice:
23
(i) the extent to which the accountable person need not
24
comply with that obligation; and
25
(ii) conditions to which the notice is subject.
26
Note:
A decision not to specify an obligation, or to specify conditions, is a
27
reviewable decision (see Part 5 of Chapter 3).
28
(2) The accountable person is not required to comply with that
29
obligation:
30
Obligations under the Financial Accountability Regime
Chapter 2
Obligations of accountable entities and accountable persons
Part 2
Accountable persons
Division 2
Section 19
No. , 2022
Financial Accountability Regime Bill 2022
21
(a) to the extent that compliance would result in the accountable
1
person contravening that law of a foreign country; or
2
(b) if the notice specifies the extent to which the accountable
3
person need not comply with that obligation--to the extent
4
so specified;
5
if the conditions (if any) specified in the notice are complied with.
6
(3) The Regulator must give a copy of the notice to the accountable
7
entity or significant related entity.
8
(4) A notice under subsection (1) is not a legislative instrument.
9
Chapter 2
Obligations under the Financial Accountability Regime
Part 3
Accountability obligations
Section 20
22
Financial Accountability Regime Bill 2022
No. , 2022
Part 3--Accountability obligations
1
2
20 The accountability obligations of an accountable entity
3
The accountability obligations of an accountable entity are:
4
(a) to take reasonable steps to conduct its business with honesty
5
and integrity, and with due skill, care and diligence; and
6
(b) to take reasonable steps to deal with the Regulator in an
7
open, constructive and cooperative way; and
8
(c) in conducting its business, to take reasonable steps to prevent
9
matters from arising that would (or would be likely to)
10
adversely affect the accountable entity's prudential standing
11
or prudential reputation; and
12
(d) to take reasonable steps to ensure that each of its accountable
13
persons meets their accountability obligations under
14
section 21; and
15
(e) to take reasonable steps to ensure that each of its significant
16
related entities complies with each of paragraphs (a), (b), (c)
17
and (d) as if the significant related entity were an accountable
18
entity.
19
Note:
See also section 22 (taking reasonable steps).
20
21 The accountability obligations of an accountable person
21
(1) The accountability obligations of an accountable person of an
22
accountable entity, or of a significant related entity of an
23
accountable entity, are to conduct the responsibilities of their
24
position as an accountable person:
25
(a) by acting with honesty and integrity, and with due skill, care
26
and diligence; and
27
(b) by dealing with the Regulator in an open, constructive and
28
cooperative way; and
29
(c) by taking reasonable steps in conducting those
30
responsibilities to prevent matters from arising that would (or
31
would be likely to) adversely affect the prudential standing or
32
prudential reputation of the accountable entity; and
33
Obligations under the Financial Accountability Regime
Chapter 2
Accountability obligations
Part 3
Section 21
No. , 2022
Financial Accountability Regime Bill 2022
23
(d) by taking reasonable steps in conducting those
1
responsibilities to prevent matters from arising that would (or
2
would be likely to) result in a material contravention by the
3
accountable entity of any of the following:
4
(i) this Act;
5
(ii) the
Banking Act 1959
;
6
(iii) the credit legislation (within the meaning of the
7
National Consumer Credit Protection Act 2009
);
8
(iv) the
Financial Sector (Collection of Data) Act 2001
;
9
(v) the financial services law (within the meaning of
10
section 761A of the
Corporations Act 2001
);
11
(vi) the
Insurance Act 1973
;
12
(vii) the
Life Insurance Act 1995
;
13
(viii) the
Private Health Insurance (Prudential Supervision)
14
Act 2015
;
15
(ix) the
Superannuation Industry (Supervision) Act 1993
;
16
(x) regulations, instruments, directions or orders made
17
under a law referred to in any of subparagraphs (i) to
18
(ix).
19
Example:
Cherie is an accountable person of an ADI and has senior executive
20
responsibility for management of the ADI's financial resources.
21
Cherie must take reasonable steps to ensure that the management of
22
those resources complies with the requirements of laws, instruments,
23
directions and orders referred to in subparagraphs (d)(i) to (x) that
24
apply in relation to financial resource management.
25
Note 1:
See also section 22 (taking reasonable steps).
26
Note 2:
For protection for whistleblowers, see Part 9.4AAA of the
27
Corporations Act 2001
.
28
(2) To the extent that 2 or more accountable persons of an accountable
29
entity or significant related entity have the same responsibility,
30
each of them has the accountability obligations under
31
subsection (1) in relation to that responsibility to the same extent as
32
if it were solely that person's responsibility.
33
Note:
Under section 65, the Regulator may direct an accountable entity to
34
reallocate a responsibility of an accountable person.
35
Chapter 2
Obligations under the Financial Accountability Regime
Part 3
Accountability obligations
Section 22
24
Financial Accountability Regime Bill 2022
No. , 2022
22 Taking reasonable steps
1
Without limiting what constitutes the taking of reasonable steps in
2
relation to a matter for the purposes of this Part, the taking of
3
reasonable steps in relation to that matter includes:
4
(a) having appropriate governance, control and risk management
5
in relation to that matter; and
6
(b) having safeguards against inappropriate delegations of
7
responsibility in relation to that matter; and
8
(c) having appropriate procedures for identifying and
9
remediating problems that arise or may arise in relation to
10
that matter; and
11
(d) taking appropriate action in response to non-compliance, or
12
suspected non-compliance, in relation to that matter.
13
Obligations under the Financial Accountability Regime
Chapter 2
Key personnel obligations
Part 4
Section 23
No. , 2022
Financial Accountability Regime Bill 2022
25
Part 4--Key personnel obligations
1
2
23 The key personnel obligations of an accountable entity
3
(1) The key personnel obligations of an accountable entity are:
4
(a) subject to subsections (2) and (3), to ensure that the
5
responsibilities of the accountable persons of the accountable
6
entity and its significant related entities cover:
7
(i) all parts or aspects of the operations of the accountable
8
entity's relevant group; and
9
(ii) each of the responsibilities to which subsection 10(2)
10
applies; and
11
(iii) each of the responsibilities to which subsection 10(3)
12
applies; and
13
(b) to ensure that no accountable person of the accountable entity
14
or any of its significant related entities is prohibited by
15
section 24 from being an accountable person of the
16
accountable entity or significant related entity; and
17
(c) to comply with each direction the Regulator gives to the
18
accountable entity under section 65; and
19
(d) to take reasonable steps to ensure that each of the
20
accountable entity's significant related entities complies with
21
each of paragraphs (b) and (c) as if the significant related
22
entity were an accountable entity.
23
Note:
For the definition of
relevant group
, see section 8.
24
(2) Paragraph (1)(a) does not apply in relation to a responsibility
25
excluded by the Regulator under subsection 11(2) or (3).
26
(3) If the accountable entity is a foreign accountable entity, the
27
accountable entity's obligation under paragraph (1)(a) is taken to
28
be an obligation to ensure that the responsibilities of the
29
accountable entity's accountable persons cover:
30
(a) all parts or aspects of the operations of each branch of the
31
accountable entity operating in Australia; and
32
(b) for each such branch:
33
Chapter 2
Obligations under the Financial Accountability Regime
Part 4
Key personnel obligations
Section 24
26
Financial Accountability Regime Bill 2022
No. , 2022
(i) each of the responsibilities to which subsection 10(2)
1
applies; and
2
(ii) each of the responsibilities to which subsection 10(3)
3
applies.
4
24 People prohibited from being an accountable person
5
(1) A person is prohibited from being an accountable person of an
6
accountable entity or significant related entity if the person:
7
(a) is not registered in respect of the accountable entity or
8
significant related entity on the register established under
9
section 40; or
10
(b) is disqualified under section 42 from being or acting as an
11
accountable person of the accountable entity or significant
12
related entity.
13
(2) If a person becomes an accountable person of an accountable entity
14
or significant related entity by filling a temporary or unforeseen
15
vacancy, paragraph (1)(a) does not apply to the person in respect of
16
the accountable entity or significant related entity until the person
17
has been an accountable person of the entity for:
18
(a) 90 days; or
19
(b) such other period as is determined under subsection (5) or
20
prescribed by the Regulator rules.
21
Note:
One example of a temporary vacancy is when the holder of a position
22
is absent from duty but is expected to return. Another is where a
23
position becomes vacant and there is an intention to fill it, but the new
24
holder has not yet been appointed.
25
(3) If a person becomes an accountable person of an accountable entity
26
by being appointed a director of a body corporate at a general
27
meeting of the body, paragraph (1)(a) does not apply to the person
28
in respect of the accountable entity until the person has been an
29
accountable person of the entity for:
30
(a) 30 days; or
31
(b) such other period as is determined under subsection (5) or
32
prescribed by the Regulator rules.
33
(4) If, because a body corporate first becomes an ADI, an authorised
34
NOHC of an ADI, a general insurer, an authorised NOHC of a
35
Obligations under the Financial Accountability Regime
Chapter 2
Key personnel obligations
Part 4
Section 24
No. , 2022
Financial Accountability Regime Bill 2022
27
general insurer, a life company, a registered NOHC of a life
1
company, a private health insurer or an RSE licensee:
2
(a) that or another body corporate becomes an accountable
3
entity; and
4
(b) a person becomes an accountable person of the accountable
5
entity, or of a significant related entity of the accountable
6
entity;
7
paragraph (1)(a) does not apply to the person in respect of the
8
accountable entity or significant related entity, as the case may be,
9
until the person has been an accountable person of the entity for:
10
(c) 30 days; or
11
(d) such other period as is determined under subsection (5) or
12
prescribed by the Regulator rules.
13
(5) The Regulator may, by written notice given to an accountable
14
entity or significant related entity, determine a period for the
15
purposes of paragraph (2)(b), (3)(b) or (4)(d).
16
(6) If a determination made under subsection (5) is inconsistent with
17
Regulator rules made for the purposes of paragraph (2)(b), (3)(b)
18
or (4)(d), the determination prevails and the Regulator rules, to the
19
extent of the inconsistency, do not have any effect.
20
(7) A determination made under subsection (5) is not a legislative
21
instrument.
22
Chapter 2
Obligations under the Financial Accountability Regime
Part 5
Deferred remuneration obligations
Section 25
28
Financial Accountability Regime Bill 2022
No. , 2022
Part 5--Deferred remuneration obligations
1
2
25 The deferred remuneration obligations of an accountable entity
3
(1) The deferred remuneration obligations of an accountable entity are:
4
(a) to ensure that, in relation to the variable remuneration of an
5
accountable person of the accountable entity:
6
(i) the payment of a portion of that variable remuneration is
7
deferred for a period; and
8
(ii) the amount of that portion is at least the amount
9
required under subsection 27(1); and
10
(iii) that period is not shorter than the minimum deferral
11
period (see section 28); and
12
(b) to have a remuneration policy in force that requires that, if
13
the person has failed to comply with one or more of their
14
accountability obligations under section 21, the person's
15
variable remuneration is to be reduced by an amount that is
16
proportionate to the failure; and
17
(c) to ensure that, if the remuneration policy requires the variable
18
remuneration to be reduced because of that failure, the
19
amount of the reduction is not paid or transferred to the
20
person; and
21
(d) to take reasonable steps to ensure that, if variable
22
remuneration may become payable to an accountable person
23
of a significant related entity of the accountable entity, the
24
significant related entity complies with each of
25
paragraphs (a), (b) and (c) as if the significant related entity
26
were an accountable entity.
27
(2) A reduction of variable remuneration:
28
(a) need not be a reduction of variable remuneration relating to a
29
period in which the failure occurred; and
30
(b) may be a reduction to zero.
31
(3)
Remuneration
, of an accountable person, includes:
32
Obligations under the Financial Accountability Regime
Chapter 2
Deferred remuneration obligations
Part 5
Section 26
No. , 2022
Financial Accountability Regime Bill 2022
29
(a) in relation to an accountable person of an accountable
1
entity--any remuneration that:
2
(i) is an amount paid or payable, or property transferred or
3
transferrable, to the accountable person by a related
4
body corporate of the accountable entity; and
5
(ii) relates wholly or partly to the responsibilities that cause
6
the person to be an accountable person of the
7
accountable entity; or
8
(b) in relation to an accountable person of a significant related
9
entity--any remuneration that:
10
(i) is an amount paid or payable, or property transferred or
11
transferrable, to the accountable person by a related
12
body corporate of the significant related entity; and
13
(ii) relates wholly or partly to the responsibilities that cause
14
the person to be an accountable person of the significant
15
related entity.
16
Note:
For when bodies corporate are
related
, see section 8.
17
26 Meaning of variable remuneration
18
(1) The
variable remuneration
of an accountable person of an
19
accountable entity or a significant related entity is:
20
(a) so much (if any) of the accountable person's total
21
remuneration as:
22
(i) is conditional on the achievement of objectives; and
23
(ii) is not remuneration of a kind prescribed by the
24
Regulator rules for the purposes of this subparagraph;
25
and
26
(b) so much (if any) of the accountable person's total
27
remuneration as is remuneration of a kind determined under
28
paragraph (3)(a) or prescribed by the Regulator rules.
29
(2) However, remuneration of a kind determined under
30
paragraph (3)(b) is not
variable remuneration
of an accountable
31
person of an accountable entity or a significant related entity.
32
(3) The Regulator may, by written notice given to an accountable
33
entity or a significant related entity, determine that:
34
Chapter 2
Obligations under the Financial Accountability Regime
Part 5
Deferred remuneration obligations
Section 27
30
Financial Accountability Regime Bill 2022
No. , 2022
(a) remuneration of a particular kind, of one or more accountable
1
persons, or of a class of accountable persons, of the
2
accountable entity or significant related entity, is variable
3
remuneration; or
4
(b) remuneration of a particular kind, of one or more accountable
5
persons, or of a class of accountable persons, of the
6
accountable entity or significant related entity, is not variable
7
remuneration.
8
Note:
A decision under this subsection is a reviewable decision (see Part 5
9
of Chapter 3).
10
(4) The Regulator must give a copy of a determination it makes under
11
subsection (3) to each person who, when the determination is
12
made, is an accountable person covered by the determination.
13
(5) If:
14
(a) after a determination is made under subsection (3), a person
15
becomes an accountable person of the accountable entity or
16
significant related entity; and
17
(b) the determination covers the person;
18
the accountable entity or significant related entity must give a copy
19
of the determination to the person.
20
(6) A notice under subsection (3) is not a legislative instrument.
21
(7) Regulator rules made for the purposes of paragraph (1)(b), or a
22
determination made for the purposes of paragraph (3)(a), may also
23
identify the day, or a way of working out the day, on which the
24
minimum deferral period for the variable remuneration starts.
25
27 Minimum amount of variable remuneration to be deferred
26
(1) The amount of an accountable person's variable remuneration that
27
is required to be deferred under subparagraph 25(1)(a)(ii) is 40% of
28
the accountable person's variable remuneration for the financial
29
year in which the minimum deferral period for the variable
30
remuneration starts.
31
Note 1:
For when the minimum deferral period starts, see section 28.
32
Note 2:
For the applicable financial year, see subsection (7) of this section.
33
Obligations under the Financial Accountability Regime
Chapter 2
Deferred remuneration obligations
Part 5
Section 27
No. , 2022
Financial Accountability Regime Bill 2022
31
Working out value of variable remuneration
1
(2) For the purposes of this section, the value of variable remuneration
2
of an accountable person that has been deferred is taken to be:
3
(a) if a written notice given under subsection (3) determines a
4
way to work out that value--the value worked out in that
5
way; or
6
(b) if paragraph (a) does not apply and the Regulator rules
7
prescribe a way to work out that value--the value worked out
8
in that way; or
9
(c) if paragraphs (a) and (b) do not apply--what would have
10
been the value of that remuneration if it had instead been paid
11
or transferred to the person at the start of the minimum
12
deferral period for the variable remuneration.
13
(3) The Regulator may, by written notice given to an accountable
14
entity or a significant related entity, determine the way to work out,
15
for the purposes of this section, the value of variable remuneration
16
of accountable persons of the accountable entity or significant
17
related entity.
18
Note:
A decision under this subsection is a reviewable decision (see Part 5
19
of Chapter 3).
20
(4) The Regulator must give a copy of a determination it makes under
21
subsection (3) to each person who, when the determination is
22
made, is an accountable person covered by the determination.
23
(5) If:
24
(a) after a determination is made under subsection (3), a person
25
becomes an accountable person of the accountable entity or
26
significant related entity; and
27
(b) the determination covers the person;
28
the accountable entity or significant related entity must give a copy
29
of the determination to the person.
30
Notice not a legislative instrument
31
(6) A notice under subsection (3) is not a legislative instrument.
32
Chapter 2
Obligations under the Financial Accountability Regime
Part 5
Deferred remuneration obligations
Section 28
32
Financial Accountability Regime Bill 2022
No. , 2022
Financial year
1
(7) In determining an amount of an accountable person's variable
2
remuneration for the purposes of this section, use the financial year
3
of the accountable entity or significant related entity of which the
4
person is an accountable person.
5
Note:
See section 8 for the definition of
financial year
.
6
28 Minimum deferral period for variable remuneration
7
(1) The
minimum deferral period
for the variable remuneration of an
8
accountable person of an accountable entity or a significant related
9
entity is the period:
10
(a) starting on the day determined under subsection (2) or (3);
11
and
12
(b) ending on the day determined under subsection (4).
13
When the deferral period starts
14
(2) The minimum deferral period for the variable remuneration of an
15
accountable person starts (subject to subsection (3)) on the later of
16
the following days:
17
(a) the day after the day on which the decision was first made
18
that the person's total remuneration would be wholly or
19
partly conditional on the achievement of objectives;
20
(b) if the achievement of those objectives (as first decided) is to
21
be measured by reference to a particular period--the day that
22
period starts.
23
(3) However, if:
24
(a) the variable remuneration is remuneration of a kind
25
determined under paragraph 26(3)(a), or prescribed by the
26
Regulator rules for the purposes of paragraph 26(1)(b); and
27
(b) the determination provides, or the Regulator rules provide,
28
for when the minimum deferral period for the variable
29
remuneration starts;
30
then the minimum deferral period starts on the day so provided.
31
Obligations under the Financial Accountability Regime
Chapter 2
Deferred remuneration obligations
Part 5
Section 28
No. , 2022
Financial Accountability Regime Bill 2022
33
When the minimum deferral period ends
1
(4) The minimum deferral period for the variable remuneration of an
2
accountable person ends on the earliest day worked out under an
3
applicable item of the following table.
4
5
End of minimum deferral period
Item
Column 1
If ...
Column 2
the period ends on ...
1
it is the last day of the
period of 4 years after
the start of the
minimum deferral
period
(a) that last day, unless paragraph (b) applies; or
(b) if, on the day determined under paragraph (a),
the accountable entity or significant related
entity considers that the accountable person is
likely to have failed to comply with one or
more of their accountability obligations under
section 21--the later day on which the entity
determines whether or not the person has
failed to comply.
2
the accountable person
ceases to be an
accountable person
because of the person's
death, serious
incapacity, serious
disability or serious
illness
(a) the day on which the person so ceases, unless
paragraph (b) applies; or
(b) if, on the day determined under paragraph (a),
the accountable entity or significant related
entity is not yet satisfied on reasonable
grounds that the person has complied with the
person's accountability obligations under
section 21:
(i) the day on which the entity is so
satisfied (whether the compliance
occurred on or before the entity being
so satisfied); or
(ii) if the day mentioned in
subparagraph (i) does not occur--the
day determined under item 1.
3
a circumstance
determined under
subsection (5), or
prescribed by the
Regulator rules for the
purposes of this item,
exists or occurs in
(a) the day on which the circumstance occurs or
begins to exist, unless paragraph (b) applies;
or
(b) if, on the day determined under paragraph (a),
the accountable entity or significant related
entity is not yet satisfied on reasonable
grounds that the person has complied with the
Chapter 2
Obligations under the Financial Accountability Regime
Part 5
Deferred remuneration obligations
Section 29
34
Financial Accountability Regime Bill 2022
No. , 2022
End of minimum deferral period
Item
Column 1
If ...
Column 2
the period ends on ...
relation to the
accountable person
person's accountability obligations under
section 21:
(i) the day on which the entity is so
satisfied (whether the compliance
occurred on or before the entity being
so satisfied); or
(ii) if the day mentioned in
subparagraph (i) does not occur--the
day determined under item 1.
Note:
In relation to item 1, if the accountable entity or significant related
1
entity determines that the person has failed to comply, the
2
remuneration policy must require the amount of variable remuneration
3
paid or transferred to the person to be reduced by an amount that is
4
proportionate to the failure: see paragraph 25(1)(b).
5
(5) The Regulator may, by written notice given to an accountable
6
entity, determine circumstances for the purposes of item 3 of the
7
table in subsection (4) in relation to either or both of the following:
8
(a) the accountable entity;
9
(b) one or more significant related entities of the accountable
10
entity.
11
Notice not a legislative instrument
12
(6) A notice under subsection (5) is not a legislative instrument.
13
29 Exemption for small amounts of variable remuneration
14
(1) Paragraph 25(1)(a) does not apply in relation to the variable
15
remuneration of an accountable person for a financial year if the
16
amount of the person's variable remuneration that is required, or
17
would apart from this section be required, under
18
subparagraph 25(1)(a)(ii) to be deferred for that financial year is
19
less than:
20
(a) the amount (if any) prescribed by the Minister rules; or
21
(b) if no amount is prescribed for the purposes of
22
paragraph (a)--$50,000.
23
Obligations under the Financial Accountability Regime
Chapter 2
Deferred remuneration obligations
Part 5
Section 30
No. , 2022
Financial Accountability Regime Bill 2022
35
Financial year
1
(2) For the purposes of subsection (1), use the financial year of the
2
accountable entity or significant related entity of which the person
3
is an accountable person.
4
Note:
See section 8 for the definition of
financial year
.
5
30 Exemption for variable remuneration payable for temporary
6
performance
7
(1) This section applies if:
8
(a) a person becomes an accountable person of an accountable
9
entity or a significant related entity by filling a temporary or
10
unforeseen vacancy; and
11
(b) the person is not registered under Division 1 of Part 3 of
12
Chapter 3.
13
(2) Paragraph 25(1)(a) does not apply in relation to the variable
14
remuneration of the accountable person for the period during
15
which, because of subsection 24(2), the person is not prohibited
16
from being an accountable person of the accountable entity or
17
significant related entity.
18
Chapter 2
Obligations under the Financial Accountability Regime
Part 6
Notification obligations
Section 31
36
Financial Accountability Regime Bill 2022
No. , 2022
Part 6--Notification obligations
1
2
31 The notification obligations of an accountable entity
3
Core notification obligations
4
(1) The notification obligations of an accountable entity are:
5
(a) to notify the Regulator of an event mentioned in section 32:
6
(i) within the period, after the event, provided under
7
subsection (6) of this section; and
8
(ii) in accordance with the requirements under
9
subsection (7) of this section; and
10
(b) to take reasonable steps to ensure that each of its significant
11
related entities complies with paragraph (a) as if the
12
significant related entity were an accountable entity.
13
Enhanced notification obligations
14
(2) In addition to subsection (1), if the accountable entity meets the
15
enhanced notification threshold under subsection (3), then the
16
notification obligations of the accountable entity are:
17
(a) to give to the Regulator a document complying with
18
section 33 (an
accountability statement
) for each of its
19
accountable persons; and
20
(b) to ensure that the Regulator is notified of any material change
21
to the information contained in the accountability statement
22
for each of its accountable persons:
23
(i) within the period, after the change, provided under
24
subsection (6) of this section; and
25
(ii) in accordance with the requirements under
26
subsection (7) of this section; and
27
(c) to give to the Regulator a document complying with
28
section 34 (an
accountability map
) within the period, after
29
the body corporate starts being an accountable entity in
30
accordance with subsection 9(2) or (4), provided under
31
subsection (6) of this section; and
32
Obligations under the Financial Accountability Regime
Chapter 2
Notification obligations
Part 6
Section 31
No. , 2022
Financial Accountability Regime Bill 2022
37
(d) to ensure that the Regulator is notified of any material change
1
to the information contained in the accountability map:
2
(i) within the period, after the change, provided under
3
subsection (6) of this section; and
4
(ii) in accordance with the requirements under
5
subsection (7) of this section; and
6
(e) to take reasonable steps to ensure that each of its significant
7
related entities complies with each of paragraphs (a) and (b)
8
as if the significant related entity were an accountable entity.
9
Enhanced notification threshold
10
(3) For the purposes of subsection (2), the Minister rules may set out
11
how to determine when an accountable entity meets the
enhanced
12
notification threshold
.
13
(4) Without limiting subsection (3), the Minister rules may do either or
14
both of the following:
15
(a) specify a method for working out the enhanced notification
16
threshold;
17
(b) specify different methods for working out the enhanced
18
notification threshold for different circumstances.
19
Incorporation by reference
20
(5) Despite subsection 14(2) of the
Legislation Act 2003
, Minister
21
rules made for the purposes of subsection (3) may provide for a
22
matter by applying, adopting or incorporating any matter contained
23
in an instrument or other writing, as in force or existing from time
24
to time, if the instrument or other writing is published on a website
25
maintained by the Regulator.
26
Period for compliance
27
(6) For the purposes of subparagraphs (1)(a)(i) and (2)(b)(i) and (d)(i)
28
and paragraph (2)(c), the period is:
29
(a) 30 days; or
30
(b) such other period (if any) prescribed by the Regulator rules.
31
Chapter 2
Obligations under the Financial Accountability Regime
Part 6
Notification obligations
Section 32
38
Financial Accountability Regime Bill 2022
No. , 2022
Requirements for notice
1
(7) For the purposes of subparagraphs (1)(a)(ii) and (2)(b)(ii) and
2
(d)(ii), the notice must:
3
(a) be in the form approved in writing by the Regulator; and
4
(b) contain the information that the form requires.
5
32 Events for which the Regulator must be notified
6
For the purposes of paragraph 31(1)(a), the following events must
7
be notified to the Regulator by an accountable entity:
8
(a) a person ceases to be an accountable person of the
9
accountable entity or of a significant related entity of the
10
accountable entity;
11
(b) an accountable person of the accountable entity, or of a
12
significant related entity of the accountable entity, is
13
dismissed or suspended because the person has failed to
14
comply with one or more of the person's accountability
15
obligations under section 21;
16
(c) the variable remuneration of an accountable person of the
17
accountable entity, or of a significant related entity of the
18
accountable entity, is reduced because the person has failed
19
to comply with one or more of the person's accountability
20
obligations under section 21;
21
(d) the accountable entity has reasonable grounds to believe that:
22
(i) the accountable entity has failed to comply with one or
23
more of its accountability obligations under section 20
24
or of its key personnel obligations under section 23; or
25
(ii) an accountable person of the accountable entity, or of a
26
significant related entity of the accountable entity, has
27
failed to comply with one or more of the person's
28
accountability obligations under section 21;
29
(e) a material change occurs to information that relates to an
30
accountable person of the accountable entity, or of a
31
significant related entity of the accountable entity, and is
32
contained in the register established under section 40.
33
Obligations under the Financial Accountability Regime
Chapter 2
Notification obligations
Part 6
Section 33
No. , 2022
Financial Accountability Regime Bill 2022
39
33 Accountability statements
1
For the purposes of paragraph 31(2)(a), an accountability statement
2
for an accountable person of an accountable entity, or of a
3
significant related entity, must:
4
(a) contain a comprehensive statement of:
5
(i) the part or aspect of the operations of the accountable
6
entity, or of the significant related entity, for which the
7
accountable person has actual or effective responsibility
8
for management or control; and
9
(ii) the responsibilities of the accountable person, including
10
any responsibilities to which paragraph 23(1)(a) or
11
subsection 23(3) applies, as the case requires; and
12
(iii) the matters (if any) prescribed by the Regulator rules;
13
and
14
(b) include a statement by the accountable person declaring that:
15
(i) the content of the accountability statement is accurate;
16
and
17
(ii) the accountable person understands their accountability
18
obligations under section 21.
19
34 Accountability map
20
For the purposes of paragraph 31(2)(c), an accountability map of
21
an accountable entity must contain the following information:
22
(a) the names of all of the accountable persons of the
23
accountable entity and each of its significant related entities;
24
(b) details of the reporting lines and lines of responsibility of
25
those accountable persons;
26
(c) sufficient information to identify an accountable person for
27
each of the responsibilities to which paragraph 23(1)(a) or
28
subsection 23(3) applies, as the case requires;
29
(d) information (if any) prescribed by the Regulator rules.
30
Chapter 3
Administration
Part 1
Introduction
Section 35
40
Financial Accountability Regime Bill 2022
No. , 2022
Chapter 3--Administration
1
Part 1--Introduction
2
3
35 Simplified outline of this Chapter
4
APRA and ASIC jointly administer this Act, and must agree about
5
how to perform functions and exercise powers under it.
6
Accountable persons must be registered, and may be disqualified
7
for non-compliance with their obligations.
8
The Regulator may issue a direction to an accountable entity:
9
(a)
to address non-compliance, or the risk of
10
non-compliance, by the accountable entity or any of its
11
significant related entities or accountable persons; or
12
(b)
to reallocate responsibilities among accountable persons.
13
The Regulator has powers to ensure compliance with this Act, to
14
investigate non-compliance and to enforce this Act. Enforcement
15
mechanisms include civil and criminal penalties.
16
Administration
Chapter 3
The Regulator
Part 2
Arrangements for administration
Division 1
Section 36
No. , 2022
Financial Accountability Regime Bill 2022
41
Part 2--The Regulator
1
Division 1--Arrangements for administration
2
36 Administration of this Act
3
(1) Subject to this section, APRA and ASIC each have the general
4
administration of this Act.
5
Note:
See the definition of
Regulator
in section 8.
6
(2) ASIC is to perform functions, and exercise powers, under the
7
provisions specified in column 1 of the table, only in relation to the
8
following:
9
(a) accountable entities that hold an Australian financial services
10
licence (within the meaning of the
Corporations Act 2001
) or
11
an Australian credit licence (within the meaning of the
12
National Consumer Credit Protection Act 2009
);
13
(b) significant related entities of accountable entities covered by
14
paragraph (a);
15
(c) accountable persons of accountable entities covered by
16
paragraph (a) or of significant related entities covered by
17
paragraph (b).
18
However, a failure to comply with this subsection does not
19
invalidate the performance of a function, or the exercise of a
20
power, by ASIC.
21
22
Provisions under which ASIC has limited functions and powers
Item
Column 1
Provision
Column 2
Subject matter
1
Subsection 11(2)
Excluding responsibilities that would otherwise
cause someone to be an accountable person
2
Sections 17 and 19
Identifying obligations that are inconsistent with
foreign laws
Chapter 3
Administration
Part 2
The Regulator
Division 1
Arrangements for administration
Section 36
42
Financial Accountability Regime Bill 2022
No. , 2022
Provisions under which ASIC has limited functions and powers
Item
Column 1
Provision
Column 2
Subject matter
3
Subsection 24(5)
Determining the period during which, because of
subsection 24(2), (3) or (4), an unregistered
person is not prohibited from being an
accountable person of an accountable entity or
significant related entity
4
Subsection 26(3)
Determining what is or is not variable
remuneration
5
Subsection 27(3)
Determining how to work out the value of
variable remuneration
6
Subsection 28(5)
Determining circumstances that will end the
minimum deferral period for variable
remuneration
7
Subsection 41(3)
Requesting further information in relation to an
application to register an accountable person
8
Division 2 of Part 3 of
this Chapter
Disqualifying accountable persons
9
Part 4 of this Chapter
(other than
subsection 70(4) and
subsection 70(5) so far
as it relates to
subsection 70(4))
Regulatory powers and enforcement
10
Part 5 of this Chapter
Review of decisions
11
Provisions of the
Regulatory Powers
Act, as they apply for
the purposes of a
provision of Part 4 of
this Chapter
Regulatory powers and enforcement
(3) The Minister may, by legislative instrument, give APRA or ASIC
1
directions about the performance or exercise of its functions or
2
powers under this Act.
3
Administration
Chapter 3
The Regulator
Part 2
Arrangements for administration
Division 1
Section 37
No. , 2022
Financial Accountability Regime Bill 2022
43
37 Arrangement for administration
1
(1) APRA and ASIC must enter into an arrangement relating to the
2
administration of this Act.
3
(2) The arrangement must include provisions relating to the matters (if
4
any) specified in the Minister rules.
5
(3) APRA and ASIC must each publish the arrangement on its
6
website
.
7
(4) If the arrangement is not entered into within 6 months after the
8
commencement of this Act, the Minister may, by notifiable
9
instrument, determine arrangements between APRA and ASIC
10
relating to the administration of this Act.
11
(5) A failure to comply with this section does not invalidate the
12
performance or exercise of a function or power by APRA or ASIC.
13
38 Agreement about exercise of powers
14
(1) Subject to this section, neither APRA nor ASIC may perform a
15
function, or exercise a power, under this Act without the agreement
16
of the other.
17
(2) Subsection (1) does not apply in relation to performing a function,
18
or exercising a power, under:
19
(a) section 39 (which is about disclosure of information between
20
APRA and ASIC); or
21
(b) section 41 (which is about registering accountable persons);
22
or
23
(c) Part 4 of this Chapter (which is about regulatory powers and
24
enforcement) other than sections 64 and 65 (which are about
25
directions); or
26
(d) the Regulatory Powers Act as it applies in relation to this
27
Act.
28
(3) Subsection (1) does not apply to the extent that subsection 36(2)
29
prevents ASIC from performing a function or exercising a power.
30
Chapter 3
Administration
Part 2
The Regulator
Division 1
Arrangements for administration
Section 38
44
Financial Accountability Regime Bill 2022
No. , 2022
(4) A failure to comply with subsection (1) does not invalidate the
1
performance or exercise of a function or power by APRA or ASIC.
2
Administration
Chapter 3
The Regulator
Part 2
Information sharing
Division 2
Section 39
No. , 2022
Financial Accountability Regime Bill 2022
45
Division 2--Information sharing
1
39 Disclosure of information and documents between APRA and
2
ASIC
3
(1) APRA and ASIC may share with each other information that is
4
disclosed or obtained, or a document that is given or produced,
5
under or for the purposes of this Act.
6
Note:
The expression
this Act
includes the Regulatory Powers Act as it
7
applies in relation to this Act (see section 8).
8
(2) However, information or a document may only be shared with
9
APRA or ASIC (
the recipient
) under subsection (1) for the
10
purposes of the recipient performing or exercising its functions or
11
powers.
12
(3) If either APRA or ASIC obtains information, or gives or produces
13
a document, that is covered by subsection (4), it must disclose the
14
information, or give a copy of the document, to the other.
15
(4) For the purposes of subsection (3), the information and documents
16
are the following:
17
(a) information provided under Part 6 of Chapter 2 (notification
18
obligations);
19
(b) information provided under Division 1 of Part 3 of this
20
Chapter (registration of accountable persons);
21
(c) a notice given to another person under this Act;
22
(d) information or a document (if any) prescribed by the Minister
23
rules.
24
(5) If either APRA or ASIC discloses information or gives a document
25
under subsection (1) or (3) to the other, it need not notify any other
26
person that it plans to disclose the information or give the
27
document, or that it has done so.
28
Note:
Disclosure under this section is authorised under section 56 of the
29
Australian Prudential Regulation Authority Act 1998
and section 127
30
of the
Australian Securities and Investments Commission Act 2001
31
(which are about secrecy obligations).
32
Chapter 3
Administration
Part 2
The Regulator
Division 2
Information sharing
Section 39
46
Financial Accountability Regime Bill 2022
No. , 2022
(6) A disclosure of personal information in accordance with this
1
section is taken to be authorised by this Act for the purposes of
2
paragraph 6.2(b) of Australian Privacy Principle 6.
3
Administration
Chapter 3
Registration and disqualification of accountable persons
Part 3
Registration of accountable persons
Division 1
Section 40
No. , 2022
Financial Accountability Regime Bill 2022
47
Part 3--Registration and disqualification of
1
accountable persons
2
Division 1--Registration of accountable persons
3
40 Register of accountable persons
4
(1) The Regulator must establish and keep a register of accountable
5
persons.
6
(2) The register may be kept by electronic means.
7
(3) The register is not a legislative instrument.
8
(4) The register must contain, for each accountable person:
9
(a) the person's name; and
10
(b) the date of the person's registration as an accountable person;
11
and
12
(c) the date the person ceases to be an accountable person; and
13
(d) details of any disqualification of the person under section 42;
14
and
15
(e) details of any variation or revocation of disqualification
16
under section 43; and
17
(f) for each accountable entity, and each significant related
18
entity, in respect of which the person is registered as an
19
accountable person--details of the responsibilities that cause
20
the person to be an accountable person of the entity; and
21
(g) any information prescribed by the Regulator rules for the
22
purposes of this paragraph; and
23
(h) any other information that:
24
(i) the Regulator considers appropriate to include in the
25
register; and
26
(ii) is relevant to the person's registration as an accountable
27
person.
28
(5) The Regulator may make any of the information contained in the
29
register available for public inspection on the internet.
30
Chapter 3
Administration
Part 3
Registration and disqualification of accountable persons
Division 1
Registration of accountable persons
Section 41
48
Financial Accountability Regime Bill 2022
No. , 2022
41 Registration of a person as an accountable person
1
(1) An accountable entity may apply to the Regulator to register a
2
person as an accountable person in respect of the accountable
3
entity or a significant related entity of the accountable entity.
4
(2) The application must:
5
(a) be in the form approved in writing by the Regulator; and
6
(b) contain the information that the form requires; and
7
(c) include a signed declaration that the accountable entity is
8
satisfied the person is suitable to be an accountable person;
9
and
10
(d) if the accountable entity is required under section 31 to give
11
an accountability statement complying with section 33--
12
include the accountability statement for the person.
13
(3) The Regulator may, by written notice given to the accountable
14
entity, request the accountable entity to give to the Regulator
15
further information in relation to the application.
16
(4) The Regulator must, within the period provided under
17
subsection (5), register a person as an accountable person if:
18
(a) the application meets the requirements of subsection (2); and
19
(b) the accountable entity gives to the Regulator any further
20
information requested under subsection (3) in relation to the
21
application;
22
unless the accountable entity withdraws the application before the
23
day of registration.
24
(5) The period for registration under subsection (4) is the period of 21
25
days after the later of:
26
(a) the day the application is made; or
27
(b) if the Regulator requests the accountable entity to give
28
further information under subsection (3) in relation to the
29
application--the day the accountable entity gives the further
30
information to the Regulator.
31
Administration
Chapter 3
Registration and disqualification of accountable persons
Part 3
Disqualification of accountable persons
Division 2
Section 42
No. , 2022
Financial Accountability Regime Bill 2022
49
Division 2--Disqualification of accountable persons
1
42 Regulator may disqualify an accountable person
2
Disqualification by the Regulator
3
(1) The Regulator may disqualify a person from being or acting as an
4
accountable person, for a period that the Regulator considers
5
appropriate, if the Regulator is satisfied that:
6
(a) the
person has failed to comply with one or more of their
7
accountability obligations under section 21; and
8
(b) the disqualification is justified, having regard to the
9
seriousness of the failure to comply.
10
Note:
A decision to disqualify a person is a reviewable decision (see Part 5
11
of this Chapter).
12
(2) For the purposes of subsection (1), the Regulator may disqualify a
13
person from being or acting as an accountable person of one or
14
more of the following:
15
(a) a particular accountable entity;
16
(b) a particular significant related entity of an accountable entity;
17
(c) a class of accountable entities;
18
(d) a class of significant related entities of accountable entities;
19
(e) any accountable entity;
20
(f) any significant related entity of an accountable entity.
21
Written notice
22
(3) The Regulator must give written notice of a disqualification to:
23
(a) the person; and
24
(b) each accountable entity of which the person is an accountable
25
person when the disqualification decision is made; and
26
(c) each significant related entity of which the person is an
27
accountable person when the disqualification decision is
28
made; and
29
(d) each accountable entity of which an entity covered by
30
paragraph (c) is a significant related entity.
31
Chapter 3
Administration
Part 3
Registration and disqualification of accountable persons
Division 2
Disqualification of accountable persons
Section 43
50
Financial Accountability Regime Bill 2022
No. , 2022
(4) A disqualification takes effect on the day specified in the notice
1
(which must be at least 7 days after it is given).
2
(5) Before disqualifying a person, the Regulator must give written
3
notice to each person mentioned in paragraphs (3)(a) to (d), giving
4
each of them an opportunity to make submissions on the matter.
5
(6) If a submission is made to the Regulator in response to the notice,
6
the Regulator must have regard to the submission and may discuss
7
any matter contained in the submission with such persons as it
8
considers appropriate for the purpose of making a decision under
9
this section.
10
(7) A notice given under subsection (5) must state that any
11
submissions made in response to the notice may be discussed by
12
the Regulator with any other persons as mentioned in
13
subsection (6).
14
Notice not a legislative instrument
15
(8) A notice under subsection (3) or (5) is not a legislative instrument.
16
43 Regulator may vary or revoke a disqualification
17
(1) The Regulator may vary or revoke a disqualification made under
18
section 42 on its own initiative or on application by the disqualified
19
person.
20
Note:
A decision to vary or revoke a disqualification, or to refuse to vary or
21
revoke a disqualification, is a reviewable decision (see Part 5 of this
22
Chapter).
23
(2) A variation or revocation of a disqualification takes effect on the
24
day on which it is made.
25
(3) The Regulator must give written notice of:
26
(a) a variation or revocation of a disqualification; or
27
(b) a refusal to vary or revoke the disqualification;
28
to the disqualified person and to each person to whom the
29
Regulator was required by subsection 42(3) to given notice of the
30
disqualification.
31
Administration
Chapter 3
Registration and disqualification of accountable persons
Part 3
Disqualification of accountable persons
Division 2
Section 44
No. , 2022
Financial Accountability Regime Bill 2022
51
(4) A notice under subsection (3) is not a legislative instrument.
1
44 Allowing a person disqualified by the Regulator to act as an
2
accountable person
3
(1) An accountable entity or significant related entity contravenes this
4
subsection if:
5
(a) a person is disqualified under section 42 from being, or
6
acting as, an accountable person of the accountable entity or
7
significant related entity; and
8
(b) the person is, or acts as, an accountable person of the
9
accountable entity or significant related entity; and
10
(c) the accountable entity or significant related entity allows the
11
person to be, or act as, an accountable person.
12
Note:
An accountable entity may also contravene a civil penalty provision if
13
it fails to ensure that its accountable persons are not prohibited from
14
being accountable persons (see sections 24 and 80).
15
Fault-based offence
16
(2) An accountable entity or a significant related entity commits an
17
offence if it contravenes subsection (1).
18
Penalty: 250 penalty units.
19
Strict liability offence
20
(3) An accountable entity or a significant related entity commits an
21
offence of strict liability if it contravenes subsection (1).
22
Penalty: 60
penalty units.
23
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 1
Investigations
Section 45
52
Financial Accountability Regime Bill 2022
No. , 2022
Part 4--Regulatory powers and enforcement
1
Division 1--Investigations
2
45 Regulator may appoint an investigator
3
Appointment of investigator
4
(1) The Regulator may, in writing, appoint a person (the
investigator
)
5
to investigate and report in relation to an accountable entity or a
6
significant related entity if the Regulator has reasonable grounds to
7
believe that:
8
(a) the accountable entity or the significant related entity may
9
have contravened a provision of this Act; or
10
(b) an accountable person of the accountable entity, or of the
11
significant related entity, may have contravened a provision
12
of this Act.
13
Delegation by investigator
14
(2) The investigator may, in writing, delegate to an APRA staff
15
member or ASIC staff member any or all of the investigator's
16
functions and powers under this Part.
17
(3) A delegate must produce for inspection the instrument of
18
delegation, or a copy of the instrument, on the request of a person:
19
(a) in relation to whom any of the delegated functions and
20
powers may be performed or exercised; or
21
(b) who is affected by the performance or exercise of any of the
22
delegated functions and powers.
23
(4) A reference in this Act to an investigator includes a reference to a
24
delegate of an investigator.
25
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Investigations
Division 1
Section 46
No. , 2022
Financial Accountability Regime Bill 2022
53
46 Requirement to assist investigator
1
(1) If the Regulator appoints an investigator under section 45, the
2
accountable entity or significant related entity must give the
3
investigator:
4
(a) access to its books, accounts and documents; and
5
(b) such information and facilities as the investigator requires to
6
conduct the investigation and produce the report.
7
(2) A person commits an offence if:
8
(a) the person is subject to a requirement under subsection (1);
9
and
10
(b) the person fails to comply with the requirement.
11
Penalty: 50 penalty units.
12
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of
13
criminal responsibility.
14
(3) If a person does, or fails to do, an act in circumstances that give
15
rise to the person committing an offence against subsection (2), the
16
person commits an offence against that subsection in respect of:
17
(a) the first day on which the offence is committed; and
18
(b) each subsequent day (if any) on which the circumstances that
19
gave rise to the person committing the offence continue
20
(including the day of conviction for any such offence or any
21
later day).
22
Note:
This subsection is not intended to imply that section 4K of the
Crimes
23
Act 1914
does not apply to offences against this Act.
24
(4) Nothing in this section is intended to limit the operation of any
25
other provision of this Act.
26
47 Investigator may require production of books etc.
27
(1) If an investigator has reasonable grounds to believe that a person
28
has custody or control of any books, accounts or documents
29
relevant to the investigator's investigation, the investigator may, by
30
written notice given to the person, require the person to produce
31
any or all of the books, accounts or documents to the investigator.
32
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 1
Investigations
Section 48
54
Financial Accountability Regime Bill 2022
No. , 2022
(2) The notice must specify the day by which the books, accounts or
1
documents are to be produced (which must be at least 14 days after
2
the day the notice is given to the person).
3
(3) A person commits an offence if:
4
(a) the person is required to produce books, accounts or
5
documents in accordance with a notice given to the person
6
under subsection (1); and
7
(b) the person fails to comply with the requirement.
8
Penalty: 30 penalty units.
9
48 Concealing books, accounts or documents relevant to
10
investigation
11
A person commits an offence if:
12
(a) the person knows that an investigator is investigating, or is
13
about to investigate, a matter; and
14
(b) the person:
15
(i) conceals, destroys, mutilates or alters a book, account or
16
document relating to the matter; or
17
(ii) if a book, account or document relating to the matter is
18
in a particular State or Territory--takes or sends the
19
book, account or document out of that State or
20
Territory; and
21
(c) the person intended that the investigation or proposed
22
investigation would be delayed or obstructed as a result of
23
that conduct.
24
Penalty: Imprisonment for 2 years.
25
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Examinations
Division 2
Section 49
No. , 2022
Financial Accountability Regime Bill 2022
55
Division 2--Examinations
1
49 Notice requiring appearance for examination
2
If an investigator has reasonable grounds to believe that a person
3
(the
examinee
) can give information relevant to the investigator's
4
investigation, the investigator may, by written notice given to the
5
examinee, require the examinee:
6
(a) to give the investigator all reasonable assistance in
7
connection with the investigation; and
8
(b) to appear before the investigator for examination on a
9
specified day that is at least 14 days after the notice is given.
10
Note:
Failure to comply with a requirement made under this section is an
11
offence (see section 53).
12
50 Conduct of examinations
13
(1) The investigator may examine the examinee on oath or affirmation
14
and may, for that purpose:
15
(a) require the examinee to either take an oath or make an
16
affirmation; and
17
(b) administer an oath or affirmation to the examinee.
18
Note:
Failure to comply with a requirement made under this subsection is an
19
offence (see section 53).
20
(2) The oath or affirmation to be taken or made by the examinee for
21
the purposes of the examination is an oath or affirmation that the
22
statements that the examinee will make will be true.
23
(3) The investigator may require the examinee to answer a question
24
that is put to the examinee at the examination and is relevant to a
25
matter that the investigator is investigating, or is to investigate.
26
Note:
Failure to comply with a requirement made under this subsection is an
27
offence (see section 53).
28
(4) The examiner may make an audio, or audio visual, recording of all
29
or any part of the examination.
30
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 2
Examinations
Section 51
56
Financial Accountability Regime Bill 2022
No. , 2022
51 Who may be present at examinations
1
(1) The examination must take place in private.
2
(2) The following people may be present at the examination:
3
(a) the investigator;
4
(b) the examinee;
5
(c) the examinee's lawyer;
6
(d) either or both of the following:
7
(i) an APRA staff member approved by APRA to be
8
present;
9
(ii) an ASIC staff member approved by ASIC to be present;
10
(e) a person directed by the investigator to be present.
11
Note:
For the definitions of
APRA staff member
and
ASIC staff member
,
12
see section 8.
13
(3) A person commits an offence if the person:
14
(a) is present at an examination; and
15
(b) is not a person mentioned in subsection (2).
16
Penalty: 30 penalty units.
17
(4) The examinee's lawyer may, at such times during the examination
18
as the investigator determines, address the investigator and
19
examine the examinee about matters about which the investigator
20
has examined the examinee.
21
(5) The investigator may require a person to stop addressing the
22
investigator or examining the examinee if, in the investigator's
23
opinion, the person is trying to obstruct the examination by
24
exercising rights under subsection (4).
25
Note:
Failure to comply with a requirement made under this subsection is an
26
offence (see section 53).
27
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Examinations
Division 2
Section 52
No. , 2022
Financial Accountability Regime Bill 2022
57
52 Record of examination
1
Written record of statements
2
(1) The investigator must cause a written record (including a transcript
3
of an audio, or audio-visual, recording) to be made of statements
4
made at the examination.
5
(2) The investigator may require the examinee to read the written
6
record, or to have it read to the examinee, and may require the
7
examinee to sign it.
8
Note:
Failure to comply with a requirement made under this subsection is an
9
offence (see section 53).
10
Copies of record
11
(3) The investigator must give a copy of a written record to the
12
examinee, without charge, but subject to such conditions (if any) as
13
the investigator imposes.
14
Use of copies
15
(4) If the investigator gives a copy of a written record to a person
16
under subsection (3) subject to conditions, the person, or any other
17
person who has possession, custody or control of the copy or a
18
copy of it, must comply with the conditions.
19
Penalty: Imprisonment for 6 months.
20
53 Offences
21
A person commits an offence if:
22
(a) the person is subject to a requirement under this Division;
23
and
24
(b) the person refuses or fails to comply with the requirement.
25
Penalty: 30 penalty units.
26
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 3
Evidentiary use of certain material
Section 54
58
Financial Accountability Regime Bill 2022
No. , 2022
Division 3--Evidentiary use of certain material
1
54 Statements made at an examination--proceedings against
2
examinee
3
Admissibility of statements made at examination
4
(1) Subject to this section, a statement that a person makes at an
5
examination of the person is admissible in evidence against the
6
person in a proceeding.
7
Self-incrimination exception
8
(2) The statement is not admissible if the statement is not admissible in
9
evidence against the person under section 88.
10
Irrelevant statement exception
11
(3) The statement is not admissible if it is not relevant to the
12
proceeding and the person objects to the admission of evidence of
13
the statement.
14
Related statement exception
15
(4) The statement (the
subject statement
) is not admissible if:
16
(a) it is qualified or explained by some other statement made at
17
the examination; and
18
(b) evidence of the other statement is not tendered in the
19
proceeding; and
20
(c) the person objects to the admission of evidence of the subject
21
statement.
22
Legal professional privilege exception
23
(5) The statement is not admissible if:
24
(a) it discloses matter in respect of which the person could claim
25
legal professional privilege in the proceeding if
26
subsection (1) did not apply in relation to the statement; and
27
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Evidentiary use of certain material
Division 3
Section 55
No. , 2022
Financial Accountability Regime Bill 2022
59
(b) the person objects to the admission of evidence of the
1
statement.
2
Joint proceedings
3
(6) Subsection (1) applies in relation to a proceeding against a person
4
even if it is heard together with a proceeding against another
5
person.
6
Record is prima facie evidence
7
(7) If a written record of an examination of a person is signed by the
8
person under subsection 52(2)
,
or is authenticated in a manner (if
9
any) specified in the Minister rules, the record is admissible in a
10
proceeding as prima facie evidence of the statements it records.
11
Admissibility of other evidence
12
(8) This Division does not limit or affect the admissibility in the
13
proceeding of other evidence of statements made at the
14
examination.
15
55 Statements made at an examination--other proceedings
16
Admissibility of absent witness evidence
17
(1) If direct evidence by a person (the
absent witness
) of a matter
18
would be admissible in a proceeding, a statement that the absent
19
witness made at an examination of the absent witness and that
20
tends to establish that matter is admissible in the proceeding as
21
evidence of that matter in accordance with subsection (2).
22
Requirement for admissibility
23
(2) The statement is admissible:
24
(a) if it appears to the court or tribunal that:
25
(i) the absent witness is dead or is unfit, because of
26
physical or mental incapacity, to attend as a witness; or
27
(ii) the absent witness is outside the State or Territory in
28
which the proceeding is being heard and it is not
29
reasonably practicable to secure their attendance; or
30
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 3
Evidentiary use of certain material
Section 56
60
Financial Accountability Regime Bill 2022
No. , 2022
(iii) all reasonable steps have been taken to find the absent
1
witness but they cannot be found; or
2
(b) if it does not so appear to the court or tribunal--unless
3
another party to the proceeding requires the party tendering
4
evidence of the statement to call the absent witness as a
5
witness in the proceeding and the tendering party does not so
6
call the absent witness.
7
56 Weight of evidence under section 55
8
(1) If evidence of a statement made by a person at an examination of
9
the person is admitted under section 55 in a proceeding, in deciding
10
how much weight (if any) to give to the statement as evidence of a
11
matter, regard is to be had to:
12
(a) the length of period between the statement and the matter to
13
which the statement relates; and
14
(b) any reason the person may have had for concealing or
15
misrepresenting a material matter; and
16
(c) any other circumstances from which it is reasonable to draw
17
an inference about the accuracy of the statement.
18
(2) If the person is not called as a witness in the proceeding:
19
(a) evidence that would, if the person had been so called, have
20
been admissible in the proceeding for the purpose of
21
destroying or supporting their credibility is so admissible;
22
and
23
(b) evidence is admissible to show that the statement is
24
inconsistent with another statement that the person has made
25
at any time.
26
(3) However, evidence of a matter is not admissible under this section
27
if, had the person been called as a witness in the proceeding and
28
denied the matter in cross-examination, evidence of the matter
29
would not have been admissible if adduced by the cross-examining
30
party.
31
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Evidentiary use of certain material
Division 3
Section 57
No. , 2022
Financial Accountability Regime Bill 2022
61
57 Objection to admission of statements made at examination
1
Notice of intention to apply to admit evidence and statements
2
(1) A party (the
adducing party
) to a proceeding may, not less than 14
3
days before the first day of the hearing of the proceeding, give to
4
another party to the proceeding written notice that the adducing
5
party:
6
(a) will apply to have admitted in evidence in the proceeding
7
specified statements made at an examination; and
8
(b) for that purpose, will apply to have evidence of those
9
statements admitted in the proceeding.
10
Notice to set out etc. statements
11
(2) A notice under subsection (1) must set out, or be accompanied by
12
writing that sets out, the specified statements.
13
Notice of objection
14
(3) Within 14 days after a notice is given under subsection (1), the
15
other party may give to the adducing party a written notice:
16
(a) stating that the other party objects to specified statements
17
being admitted in evidence in the proceeding; and
18
(b) specifies, in relation to each of those statements, the grounds
19
of objection.
20
Extension of objection period
21
(4) The period prescribed by subsection (3) may be extended by the
22
court or tribunal or by agreement between the parties concerned.
23
Notice etc. to be given to court or tribunal
24
(5) On receiving a notice given under subsection (3), the adducing
25
party must give to the court or tribunal a copy of:
26
(a) the notice under subsection (1) and any writing that
27
subsection (2) requires to accompany that notice; and
28
(b) the notice under subsection (3).
29
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 3
Evidentiary use of certain material
Section 58
62
Financial Accountability Regime Bill 2022
No. , 2022
Action by court or tribunal
1
(6) If subsection (5) is complied with, the court or tribunal may either:
2
(a) determine the objections as a preliminary point before the
3
hearing of the proceeding begins; or
4
(b) defer determination of the objections until the hearing.
5
Right to object to admission of statement
6
(7) If a notice has been given in accordance with subsections (1) and
7
(2), the other party is not entitled to object at the hearing of the
8
proceeding to a statement specified in the notice being admitted in
9
evidence in the proceedings, unless:
10
(a) the other party has, in accordance with subsection (3),
11
objected to the statement being so admitted; or
12
(b) the court or tribunal gives the other party leave to object to
13
the statement being so admitted.
14
58 Copies of, or extracts from, certain books, accounts and
15
documents
16
(1) A copy of, or an extract from, a book, account or document to
17
which subsection 46(1) or 47(1) or paragraph 62(5)(f) applies, is
18
admissible in evidence in a proceeding as if the copy were the
19
original book, account or document or the extract were the relevant
20
part of original book, account or document.
21
(2) A copy of, or an extract from, a book, account or document is not
22
admissible in evidence under subsection (1) unless it is proved that
23
the copy or extract is a true copy of the book, account or document,
24
or of the relevant part of the book, account or document.
25
(3) For the purposes of subsection (2), a person who has compared:
26
(a) a copy of a book, account or document with the book,
27
account or document; or
28
(b) an extract from a book, account or document, with the
29
relevant part of the book, account or document;
30
may give evidence, either orally or by an affidavit or statutory
31
declaration, that the copy or extract is a true copy of the book,
32
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Evidentiary use of certain material
Division 3
Section 59
No. , 2022
Financial Accountability Regime Bill 2022
63
account or document, or relevant part of the book, account or
1
document.
2
59 Admissibility of investigation report
3
Subject to section 60, if a copy of a report under subsection 45(1)
4
purports to be certified by the Regulator as a true copy of such a
5
report, the copy is admissible in a proceeding (other than a criminal
6
proceeding) as prima facie evidence of any facts or matters that the
7
report states an investigator to have found to exist.
8
60 Exceptions to admissibility of investigation report
9
(1) If a party to a proceeding tenders a copy of a report under
10
subsection 45(1) as evidence against another party, the copy is not
11
admissible under section 59 in the proceeding as evidence against
12
the other party unless the court or tribunal is satisfied that:
13
(a) a copy of the report has been given to the other party; and
14
(b) the other party, and the other party's lawyer, have had a
15
reasonable opportunity to examine that copy and to take its
16
contents into account in preparing the other party's case.
17
(2) Before or after the copy tendered in evidence is admitted in
18
evidence, the other party may apply to cross-examine, in relation to
19
the report, a specified person who, or 2 or more specified persons
20
each of whom:
21
(a) was concerned in preparing the report or making a finding
22
about a fact or matter that the report states the investigator to
23
have found to exist; or
24
(b) whether or not pursuant to a requirement made under this
25
Part, gave information, or produced a book, account or
26
document, on the basis of which, or on the basis of matters
27
including which, such a finding was made.
28
(3) The court or tribunal must grant an application made under
29
subsection (2) unless it considers that, in all the circumstances, it is
30
not appropriate to do so.
31
(4) The court or tribunal must refuse to admit the copy, or must treat
32
the copy as not having been admitted, if:
33
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 3
Evidentiary use of certain material
Section 61
64
Financial Accountability Regime Bill 2022
No. , 2022
(a) the court or tribunal grants the application or applications
1
made under subsection (2); and
2
(b) one or more persons to whom the application or any of the
3
applications relates:
4
(i) are unavailable; or
5
(ii) do not attend to be cross-examined in relation to the
6
report; and
7
(c) the court or tribunal is of the opinion that to admit the copy
8
under section 59 in the proceeding as evidence against the
9
other party without the other party having the opportunity to
10
cross-examine the other person or persons would unfairly
11
prejudice the other party.
12
61 Material otherwise admissible
13
Nothing in this Division renders evidence inadmissible in a
14
proceeding in circumstances where it would have been admissible
15
in that proceeding if this Division had not been enacted.
16
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Requesting information
Division 4
Section 62
No. , 2022
Financial Accountability Regime Bill 2022
65
Division 4--Requesting information
1
62 Regulator may request information
2
Request for information from accountable entities
3
(1) The Regulator may request an accountable entity to give to the
4
Regulator information relating to any of the following:
5
(a) the accountable entity;
6
(b) a significant related entity of the accountable entity;
7
(c) an accountable person of the accountable entity, or of a
8
significant related entity of the accountable entity;
9
(d) a related body corporate of the accountable entity;
10
(e) a related body corporate of a significant related entity of the
11
accountable entity;
12
(f) if the accountable entity is an RSE licensee--a connected
13
entity of the accountable entity.
14
Note 1:
Failure to comply with the request is an offence (see section 63).
15
Note 2:
For when bodies corporate are
related
, see section 8.
16
Request for information from significant related entities
17
(2) The Regulator may request a significant related entity of an
18
accountable entity to give to the Regulator information relating to
19
any of the following:
20
(a) the accountable entity;
21
(b) the significant related entity;
22
(c) an accountable person of the significant related entity;
23
(d) a related body corporate of the significant related entity.
24
Note 1:
Failure to comply with the request is an offence (see section 63).
25
Note 2:
For when bodies corporate are
related
, see section 8.
26
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 4
Requesting information
Section 62
66
Financial Accountability Regime Bill 2022
No. , 2022
Request for information from accountable persons
1
(3) The Regulator may request an accountable person of an
2
accountable entity, or of a significant related entity, to give to the
3
Regulator information relating to:
4
(a) the accountable entity; or
5
(b) the significant related entity.
6
Note:
Failure to comply with the request is an offence (see section 63).
7
Purposes of request
8
(4) However, the Regulator may request information under this section
9
only if:
10
(a) the request is made for one or more of the following
11
purposes:
12
(i) performing a function or exercising a power of the
13
Regulator under this Act;
14
(ii) ensuring compliance with this Act;
15
(iii) taking action in relation to non-compliance, or
16
suspected non-compliance, with this Act; and
17
(b) the Regulator has reasonable grounds to believe that the
18
information is relevant to that purpose or those purposes.
19
Requirements of request
20
(5) The request:
21
(a) must be made in writing; and
22
(b) must state what information must be given to the Regulator;
23
and
24
(c) may require the information to be verified by statutory
25
declaration; and
26
(d) must specify a day on or before which the information must
27
be given; and
28
(e) must contain a statement to the effect that a failure to comply
29
with the request is an offence; and
30
(f) may include a requirement to produce books, accounts or
31
documents.
32
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Requesting information
Division 4
Section 63
No. , 2022
Financial Accountability Regime Bill 2022
67
(6) The day specified under paragraph (5)(d) must be at least 14 days
1
after the day on which the request was made.
2
63 Failing to give information
3
A person commits an offence if:
4
(a) the person is given a request under section 62; and
5
(b) the person fails to comply with the request.
6
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of
7
criminal responsibility.
8
Note 2:
See also subsection 4B(3) (body corporate multiplier) and section 4K
9
(continuing and multiple offences) of the
Crimes Act 1914
.
10
Note 3:
See also sections 88 (self-incrimination) and 89 (legal professional
11
privilege) of this Act.
12
Penalty: 200 penalty units.
13
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 64
68
Financial Accountability Regime Bill 2022
No. , 2022
Division 5--Regulator's power to issue directions
1
Subdivision A--Kinds of directions
2
64 Direction dealing with non-compliance
3
Power of the Regulator to give direction
4
(1) The Regulator may give an accountable entity a direction of a kind
5
specified in subsection (2) if the Regulator has reasonable grounds
6
to believe that:
7
(a) the accountable entity has contravened a provision of this
8
Act; or
9
(b) the accountable entity is likely to contravene a provision of
10
this Act and the direction is reasonably necessary to ensure
11
compliance with the provision; or
12
(c) an accountable person of the accountable entity, or of a
13
significant related entity of the accountable entity, has
14
contravened a provision of this Act; or
15
(d) an accountable person of the accountable entity, or of a
16
significant related entity of the accountable entity, is likely to
17
contravene a provision of this Act and the direction is
18
reasonably necessary to ensure compliance with the
19
provision.
20
Note 1:
A decision to give a direction under this section is a reviewable
21
decision (see Part 5 of this Chapter).
22
Note 2:
For variation and revocation of a direction given under this section,
23
see subsection 33(3) of the
Acts Interpretation Act 1901
.
24
Kinds of direction
25
(2) The kinds of direction that the accountable entity may be given are
26
directions to do, or to cause a significant related entity of the
27
accountable entity to do, any one or more of the following:
28
(a) to take specified action to deal with the ground for giving the
29
direction;
30
(b) to order an audit of the affairs of the accountable entity or
31
significant related entity, at the expense of the accountable
32
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 64
No. , 2022
Financial Accountability Regime Bill 2022
69
entity or significant related entity, by an auditor chosen by
1
the Regulator;
2
(c) to make changes to the accountable entity's or significant
3
related entity's systems, business practices or operations;
4
(d) to reconstruct, amalgamate or otherwise alter all or part of:
5
(i) the business, structure or organisation of the
6
accountable entity or significant related entity; or
7
(ii) the business, structure or organisation of the
8
accountable entity's relevant group;
9
(e) to do, or to refrain from doing, anything else in relation to the
10
affairs of the accountable entity or significant related entity.
11
Note:
For the definition of
relevant group
, see section 8.
12
(3) The direction must:
13
(a) be given by notice in writing to the accountable entity; and
14
(b) specify the ground referred to in subsection (1) as a result of
15
which the direction is given; and
16
(c) specify the time by which, or period during which, the
17
direction is to be complied with; and
18
(d) state that the accountable entity could commit an offence if
19
the accountable entity fails to comply with the direction.
20
Note:
See section 66 (offence for non-compliance with a direction).
21
(4) If the Regulator gives a direction under paragraph (1)(c) or (d), the
22
Regulator must give a copy of the direction:
23
(a) to the accountable person; and
24
(b) if the accountable person is an accountable person of a
25
significant related entity of the accountable entity--to the
26
significant related entity.
27
Power to comply
28
(5) The accountable entity has power to comply with the direction
29
despite anything in its constitution or any contract or arrangement
30
to which it is a party.
31
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 65
70
Financial Accountability Regime Bill 2022
No. , 2022
(6) If the direction requires the accountable entity to cause a
1
significant related entity to do, or to refrain from doing, an act or
2
thing:
3
(a) the accountable entity has power to cause the significant
4
related entity to do, or to refrain from doing, the act or thing;
5
and
6
(b) the significant related entity has power to do, or to refrain
7
from doing, the act or thing;
8
despite anything in the significant related entity's constitution or
9
any contract or arrangement to which the significant related entity
10
is a party.
11
Direction not a legislative instrument
12
(7) A direction under subsection (1) is not a legislative instrument.
13
Note:
Under paragraph 11(2)(c) of the
Legislation Act 2003
, the Regulator
14
may register a direction under this section as a notifiable instrument.
15
65 Direction to reallocate responsibilities
16
Power to give direction
17
(1) The Regulator may give an accountable entity a direction to
18
reallocate a responsibility to which paragraph 23(1)(a) applies if
19
the Regulator has reasonable grounds to believe that the current
20
allocation of the responsibility has given rise to, or is likely to give
21
rise to:
22
(a) a prudential risk; or
23
(b) a risk of significant and systemic non-compliance with a law,
24
instrument, direction or order referred to in any of
25
subparagraphs 21(1)(d)(i) to (x).
26
Note 1:
A decision to give a direction under this section is a reviewable
27
decision (see Part 5 of this Chapter).
28
Note 2:
For variation and revocation of a direction given under this section,
29
see subsection 33(3) of the
Acts Interpretation Act 1901
.
30
(2) If:
31
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 65
No. , 2022
Financial Accountability Regime Bill 2022
71
(a) the person who currently has the responsibility is an
1
accountable person of the accountable entity or of a
2
significant related entity of the accountable entity; and
3
(b) the accountable entity or significant related entity has given
4
an accountability statement for the accountable person under
5
section 31;
6
the Regulator must have regard to the responsibilities set out in the
7
accountability statement.
8
(3) The direction must:
9
(a) be given by notice in writing to the accountable entity; and
10
(b) specify the time by which, or period during which, the
11
direction is to be complied with; and
12
(c) state that the accountable entity could commit an offence or
13
be liable to a civil penalty if the accountable entity fails to
14
comply with the direction.
15
Note:
See section 66 (offence for non-compliance with a direction) and
16
paragraph 23(1)(c) (key personnel obligations of accountable entities)
17
and section 80 (civil penalty provisions).
18
(4) The Regulator must give a copy of the direction to each of the
19
following:
20
(a) the person who currently has the responsibility;
21
(b) the person to whom the responsibility is to be reallocated;
22
(c) if a person referred to in paragraph (a) or (b) is an
23
accountable person of a significant related entity of the
24
accountable entity--the significant related entity.
25
(5) Subsections 64(5) and (6) apply to a direction under this section in
26
the same way as they apply to a direction under section 64.
27
Direction not a legislative instrument
28
(6) A direction under subsection (1) is not a legislative instrument.
29
Note:
Under paragraph 11(2)(c) of the
Legislation Act 2003
, the Regulator
30
may register a direction under this section as a notifiable instrument.
31
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 66
72
Financial Accountability Regime Bill 2022
No. , 2022
Subdivision B--Non-compliance with directions
1
66 Offence provision for non-compliance with a direction
2
Accountable entity
3
(1) An accountable entity contravenes this subsection if:
4
(a) the accountable entity is given a direction under section 64 or
5
65; and
6
(b) the accountable entity fails to comply with the direction.
7
(2) An accountable entity commits an offence if the accountable entity
8
contravenes subsection (1).
9
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of
10
criminal responsibility.
11
Note 2:
See also subsection 4B(3) (body corporate multiplier) and section 4K
12
(continuing and multiple offences) of the
Crimes Act 1914
.
13
Note 3:
An accountable entity may also contravene a civil penalty provision if
14
it fails to comply with a direction given under section 65 (see
15
paragraph 23(1)(c) and section 80).
16
Penalty: 50 penalty units.
17
Officer of accountable entity
18
(3) An officer of an accountable entity contravenes this subsection if:
19
(a) the accountable entity is given a direction under section 64 or
20
65; and
21
(b) the officer fails to take reasonable steps to ensure that the
22
accountable entity complies with the direction; and
23
(c) the officer's duties include ensuring that the accountable
24
entity complies with the direction; and
25
(d) the accountable entity fails to comply with the direction.
26
(4) An officer of an accountable entity commits an offence if the
27
officer contravenes subsection (3).
28
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of
29
criminal responsibility.
30
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 67
No. , 2022
Financial Accountability Regime Bill 2022
73
Note 2:
See also subsection 4B(3) (body corporate multiplier) and section 4K
1
(continuing and multiple offences) of the
Crimes Act 1914
.
2
Penalty: 50 penalty units.
3
Subdivision C--Secrecy and disclosure provisions relating to
4
directions
5
67 Regulator may determine that a direction is covered by secrecy
6
provision
7
When this section applies
8
(1) This section applies if the Regulator has given an accountable
9
entity a direction under section 64 or 65.
10
Power of Regulator to make determination
11
(2) The Regulator may determine, in writing, that the direction is
12
covered by this subsection if the Regulator considers that the
13
determination is necessary:
14
(a) to protect the depositors (within the meaning of the
Banking
15
Act 1959
) of
any ADI; or
16
(b) to protect the policyholders (within the meaning of the
17
Insurance Act 1973
) of any general insurer; or
18
(c) to protect the policy owners (within the meaning of the
Life
19
Insurance Act 1995
) of any life company; or
20
(d) to protect the policy holders (within the meaning of the
21
Private Health Insurance (Prudential Supervision) Act 2015
)
22
of a health benefits fund (within the meaning of that Act) of
23
any private health insurer; or
24
(e) to protect the beneficiaries (within the meaning of the
25
Superannuation Industry (Supervision) Act 1993
) of a
26
registrable superannuation entity (within the meaning of that
27
Act) of any RSE licensee; or
28
(f) to promote financial system stability in Australia.
29
Note:
For repeal of a determination, see subsection 33(3) of the
Acts
30
Interpretation Act 1901
.
31
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 68
74
Financial Accountability Regime Bill 2022
No. , 2022
(3) The Regulator must give the accountable entity a copy of the
1
determination as soon as practicable after making it.
2
Regulator must consider other determinations
3
(4) If the Regulator makes a determination under subsection (2), the
4
Regulator must consider whether it is appropriate in the
5
circumstances to also make a determination under either or both of
6
subsections 70(2) and 70(4).
7
Determination not a legislative instrument
8
(5) An instrument under subsection (2) is not a legislative instrument.
9
68 Secrecy relating to directions
10
(1) A person commits an offence if:
11
(a) the Regulator has given an accountable entity (the
directed
12
accountable entity
) a direction under section 64 or 65; and
13
(b) the direction is covered by a determination under
14
subsection 67(2); and
15
(c) the person is, or has been, covered by subsection (2) of this
16
section in relation to the direction; and
17
(d) the person discloses information; and
18
(e) the information reveals the fact that the direction was given.
19
Penalty: Imprisonment for 2 years.
20
(2) A person is covered by this subsection in relation to the direction if
21
the person is:
22
(a) the directed accountable entity; or
23
(b) a significant related entity of the directed accountable entity;
24
or
25
(c) at or after the time when the Regulator gave the direction, an
26
officer, employee or contractor of the directed accountable
27
entity or of a significant related entity of the directed
28
accountable entity; or
29
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 69
No. , 2022
Financial Accountability Regime Bill 2022
75
(d) any other person who, because of their employment, or in the
1
course of that employment, has acquired information that
2
reveals the fact that the direction was given.
3
Exception
4
(3) Subsection (1) does not apply if:
5
(a) the disclosure is authorised by section 69, 70, 71, 72, 73, 74,
6
or 75; or
7
(b) the disclosure is required by an order or direction of a court
8
or tribunal.
9
Note:
A defendant bears an evidential burden in relation to a matter in
10
subsection (3) (see subsection 13.3(3) of the
Criminal Code
).
11
69 Disclosure of publicly available information
12
A person covered by subsection 68(2) in relation to a direction may
13
disclose information that reveals the fact that the direction was
14
given, to the extent that the information has already been lawfully
15
made available to the public.
16
70 Disclosure allowed by the Regulator
17
(1) A person covered by subsection 68(2) in relation to a direction may
18
disclose information that reveals the fact that the direction was
19
given if:
20
(a) a determination under subsection (2) or (4) of this section
21
allows the disclosure by the person; and
22
(b) if the Regulator has included conditions in the
23
determination--those conditions are satisfied.
24
Determinations relating to specified person
25
(2) The Regulator may, in writing, make a determination allowing:
26
(a) a specified person covered by subsection 68(2) in relation to
27
a specified direction; or
28
(b) a specified person covered by subsection 68(2) in relation to
29
a direction that is in a specified class of directions;
30
to disclose specified information in relation to the direction.
31
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 71
76
Financial Accountability Regime Bill 2022
No. , 2022
(3) The Regulator must give a copy of the determination, as soon as
1
practicable after making it, to:
2
(a) the directed accountable entity; and
3
(b) the person specified, or each person specified, in the
4
determination.
5
Determinations relating to specified class of persons
6
(4) The Regulator may, by legislative instrument, make a
7
determination allowing a specified class of persons covered by
8
subsection 68(2) in relation to a direction that is in a specified class
9
of directions to disclose:
10
(a) specified kinds of
information in relation to the direction; or
11
(b) any kind of information in relation to the direction.
12
Conditions in determinations
13
(5) The Regulator may include conditions in a determination under
14
subsection (2) or (4) that relate to any of the following:
15
(a) the kind of entities to which the disclosure may be made;
16
(b) the way in which the disclosure is to be made;
17
(c) any other matter that the Regulator considers appropriate.
18
Determination not a legislative instrument
19
(6) An instrument under subsection (2) is not a legislative instrument.
20
71 Disclosure for the purpose of seeking review or legal advice
21
(1) A person covered by subsection 68(2) in relation to a direction may
22
disclose information that reveals the fact that the direction was
23
given if the disclosure is made for the purposes of seeking review,
24
under Part 5 of this Chapter or any other applicable law, of the
25
direction or of a decision made in relation to the direction.
26
(2) A person covered by subsection 68(2) in relation to a direction may
27
disclose information that reveals the fact that the direction was
28
given if:
29
(a) the disclosure is to the person's lawyer; and
30
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 72
No. , 2022
Financial Accountability Regime Bill 2022
77
(b) the purpose of the person making the disclosure is for the
1
lawyer to provide legal advice, or another legal service, in
2
relation to the direction.
3
72 Disclosure under the APRA Act
4
(1) A person covered by subsection 68(2) in relation to a direction may
5
disclose information that reveals the fact that the direction was
6
given if:
7
(a) the person is:
8
(i) an APRA member within the meaning of the
Australian
9
Prudential Regulation Authority Act 1998
; or
10
(ii) an APRA staff member; or
11
(iii) an entrusted person within the meaning of the
Financial
12
Regulator Assessment Authority Act 2021
; or
13
(iv) a Commonwealth officer, within the meaning of the
14
Crimes Act 1914
, who is covered by paragraph (c) of
15
the definition of
officer
in subsection 56(1) of the
16
Australian Prudential Regulation Authority Act 1998
;
17
and
18
(b) the information:
19
(i) is protected information, as defined in subsection 56(1)
20
of the
Australian Prudential Regulation Authority Act
21
1998
; or
22
(ii) is contained in a protected document, as defined in that
23
subsection; and
24
(c) the disclosure is in accordance with a provision referred to in
25
paragraph 56(2)(c) of the
Australian Prudential Regulation
26
Authority Act 1998
.
27
Note:
For the definition of
APRA staff member
, see section 8.
28
Relationship to APRA Act secrecy provision
29
(2) Disclosure of information in relation to a direction is not an
30
offence under section 56 of the
Australian Prudential Regulation
31
Authority Act 1998
if the disclosure is authorised by section 69, 70,
32
71, 73, 74 or 75 of this Act.
33
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 73
78
Financial Accountability Regime Bill 2022
No. , 2022
Note:
A defendant bears an evidential burden in relation to the matters in
1
this subsection (see subsection 13.3(3) of the
Criminal Code
).
2
73 Disclosure under the ASIC Act
3
A person covered by subsection 68(2) in relation to a direction may
4
disclose information that reveals the fact that the direction was
5
given if:
6
(a) the person is:
7
(i) a member of ASIC; or
8
(ii) an ASIC staff member; or
9
(iii) a Commonwealth officer, within the meaning of the
10
Crimes Act 1914
, who, because of their employment, or
11
in the course of that employment, has acquired the
12
information (other than an employee of the body to
13
which the information relates); and
14
(b) the information is protected information as defined in
15
subsection 127(9) of the
Australian Securities and
16
Investments Commission Act 2001
; and
17
(c) the disclosure is authorised use and disclosure of the
18
information for the purposes of subsection 127(1) of that Act.
19
Note 1:
For the definition of
ASIC staff member
, see section 8.
20
Note 2:
A disclosure of information permitted by section 69, 70, 71, 72, 74 or
21
75 of this Act is authorised use and disclosure because of
22
subsection 127(2) of the
Australian Securities and Investments
23
Commission Act 2001
.
24
74 Disclosure in circumstances set out in the Minister rules
25
A person covered by subsection 68(2) in relation to a direction may
26
disclose information that reveals the fact that the direction was
27
given, if the disclosure is made in circumstances (if any) prescribed
28
by the Minister rules.
29
75 Disclosure for purpose
30
A person covered by subsection 68(2) (the
relevant person
) in
31
relation to a direction may disclose information that reveals the fact
32
that the direction was given if:
33
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 76
No. , 2022
Financial Accountability Regime Bill 2022
79
(a) another person covered by subsection 68(2) in relation to the
1
direction disclosed that information to the relevant person for
2
a particular purpose in accordance with section 70, 71, 72, 73
3
or 74, or in accordance with a previous operation of this
4
section; and
5
(b) the disclosure by the relevant person is for the same purpose.
6
76 Exceptions operate independently
7
Sections 69, 70, 71, 72, 73, 74 and 75 do not limit each other.
8
Subdivision D--Other provisions relating to directions
9
77 Direction not grounds for denial of obligations
10
When this section applies
11
(1) This section applies if an accountable entity, or a significant related
12
entity of an accountable entity, is party to a contract, whether the
13
proper law of the contract is:
14
(a) Australian law (including the law of a State or Territory); or
15
(b) law of a foreign country (including the law of part of a
16
foreign country).
17
Direction does not allow denial of obligations
18
(2) The fact that the accountable entity is given a direction under
19
section 64 does not allow the contract, or a party to the contract
20
(other than the accountable entity or a significant related entity of
21
the accountable entity), to do any of the following:
22
(a) deny any obligations under the contract;
23
(b) accelerate any debt under the contract;
24
(c) close out any transaction relating to the contract;
25
(d) enforce any security under the contract.
26
This subsection has effect subject to this section.
27
(3) If the accountable entity or the significant related entity is
28
prevented from fulfilling its obligations under the contract because
29
of a direction under section 64, the other party or parties to the
30
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 5
Regulator's power to issue directions
Section 78
80
Financial Accountability Regime Bill 2022
No. , 2022
contract are, subject to any orders made under subsection (4) of
1
this section, relieved from obligations owed to the accountable
2
entity or significant related entity under the contract.
3
Application to the Federal Court
4
(4) A party to a contract to which subsection (3) applies may apply to
5
the Federal Court of Australia for an order relating to the effect on
6
the contract of a direction under section 64. The order may deal
7
with matters including (but not limited to):
8
(a) requiring a party to the contract to fulfil an obligation under
9
the contract despite subsection (3) of this section; or
10
(b) obliging a party to the contract to take some other action (for
11
example, paying money or transferring property) in view of
12
obligations that were fulfilled under the contract before the
13
direction was made.
14
The order must not require a person to take action that would
15
contravene the direction.
16
Covered bonds
17
(5) Subsection (2) does not prevent the exercise of a contractual right
18
in relation to an asset that secures liabilities to holders of covered
19
bonds (within the meaning of the
Banking Act 1959
), or their
20
representatives, if payments under the covered bonds to the holders
21
or representatives are not made.
22
78 Information to the Minister about certain directions
23
(1) If the Minister requests the Regulator to provide information about:
24
(a) directions given under section 64 or 65 to a particular
25
accountable entity; or
26
(b) directions given under section 64 or 65 during a particular
27
period;
28
the Regulator must comply with the request.
29
(2) The Regulator may provide any information that it considers
30
appropriate to the Minister about:
31
(a) directions given under section 64 or 65; or
32
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Regulator's power to issue directions
Division 5
Section 79
No. , 2022
Financial Accountability Regime Bill 2022
81
(b) revocations of such directions.
1
(3) If the Regulator provides the Minister with information about a
2
direction and later revokes the direction, the Regulator must notify
3
the Minister of the revocation as soon as practicable after the
4
revocation.
5
(4) Failure to comply with this section does not affect the validity of a
6
direction or revocation.
7
79 Relationship with other laws
8
If a direction given under section 64 or 65 is inconsistent with the
9
Minister rules or the Regulator rules, the direction prevails and the
10
rules, to the extent of the inconsistency, do not have any effect.
11
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 6
Civil penalties
Section 80
82
Financial Accountability Regime Bill 2022
No. , 2022
Division 6--Civil penalties
1
80 Civil penalty provision for non-compliance with obligations
2
(1) A person contravenes this subsection if:
3
(a) the person is an accountable entity; and
4
(b) the person is subject to an obligation under Chapter 2; and
5
(c) the person fails to comply with the obligation.
6
Note:
It is generally not necessary to prove a person's state of mind in
7
proceedings for a contravention of a civil penalty provision (see
8
section 94 of the Regulatory Powers Act, which applies because of
9
section 82 of this Act).
10
(2) A person is liable to a civil penalty if the person contravenes
11
subsection (1).
12
81 Ancillary contravention of civil penalty provisions
13
(1) A person must not:
14
(a) attempt to contravene a civil penalty provision of this Act; or
15
(b) aid, abet, counsel or procure a contravention of a civil
16
penalty provision of this Act; or
17
(c) induce (by threats, promises or otherwise) a contravention of
18
a civil penalty provision of this Act; or
19
(d) be in any way, directly or indirectly, knowingly concerned in,
20
or party to, a contravention of a civil penalty provision of this
21
Act; or
22
(e) conspire with others to effect a contravention of a civil
23
penalty provision of this Act.
24
Civil penalty
25
(2) A person is liable to a civil penalty if the person contravenes
26
subsection (1).
27
(3) Section 92 of the Regulatory Powers Act (which deals with
28
ancillary contravention of civil penalty provisions) does not apply
29
in relation to a civil penalty provision of this Act.
30
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Civil penalties
Division 6
Section 82
No. , 2022
Financial Accountability Regime Bill 2022
83
(4) Section 94 of the Regulatory Powers Act (which deals with a
1
person's state of mind in relation to a contravention of a civil
2
penalty provision) does not apply in relation to a contravention of
3
subsection (1) of this section.
4
82 Civil penalty provisions--enforcement
5
Civil penalty provisions enforceable under Regulatory Powers Act
6
(1) Each civil penalty provision of this Act is enforceable under Part 4
7
of the Regulatory Powers Act.
8
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
9
be enforced by obtaining an order for a person to pay a pecuniary
10
penalty for the contravention of the provision.
11
Authorised applicant
12
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
13
Regulator is an authorised applicant in relation to the provisions
14
mentioned in subsection (1).
15
Relevant court
16
(3) For the purposes of Part 4 of the Regulatory Powers Act, the
17
Federal Court of Australia is a relevant court in relation to the
18
provisions mentioned in subsection (1).
19
Liability of Crown
20
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation
21
to the provisions mentioned in subsection (1), does not make the
22
Crown liable to a pecuniary penalty.
23
Extension to external Territories
24
(5) Part 4 of the Regulatory Powers Act, as it applies in relation to the
25
provisions mentioned in subsection (1), extends to every external
26
Territory.
27
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 6
Civil penalties
Section 83
84
Financial Accountability Regime Bill 2022
No. , 2022
83 Civil penalty provisions--amount of penalty
1
(1) Despite subsection 82(5) of the Regulatory Powers Act, the
2
pecuniary penalty payable:
3
(a) by a person; and
4
(b) under a civil penalty order under Part 4 of that Act (as that
5
Part applies because of section 82 of this Act);
6
must not be more than the maximum penalty amount worked out
7
under this section for a contravention by the person.
8
Maximum amount of civil penalty--bodies corporate
9
(2) For the purposes of subsection (1), the maximum penalty amount
10
for a contravention by a body corporate of a civil penalty provision
11
of this Act is the greatest of the following:
12
(a) 50,000 penalty units;
13
(b) if the court can determine the benefit derived and detriment
14
avoided because of the contravention--that amount
15
multiplied by 3;
16
(c) either:
17
(i) 10% of the annual turnover of the body corporate for the
18
12-month period ending at the end of the month in
19
which the body corporate contravened, or began to
20
contravene, the provision; or
21
(ii) if the amount worked out under subparagraph (i) is
22
greater than an amount equal to 2.5 million penalty
23
units--2.5 million penalty units.
24
Note:
For the meanings of
annual turnover
and
benefit derived and
25
detriment avoided
, see section 8.
26
Maximum amount of civil penalty--other persons
27
(3) For the purposes of subsection (1), the maximum penalty amount
28
for a contravention by a person other than a body corporate of a
29
civil penalty provision of this Act is the greater of the following:
30
(a) 5,000 penalty units;
31
(b) if the court can determine the benefit derived and detriment
32
avoided because of the contravention--that amount
33
multiplied by 3.
34
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Civil penalties
Division 6
Section 83
No. , 2022
Financial Accountability Regime Bill 2022
85
Note 1:
For the meaning of
benefit derived and detriment avoided
, see
1
section 8.
2
Note 2:
Section 81 is the only civil penalty provision of this Act that can be
3
contravened by a person other than a body corporate.
4
Additional relevant matter
5
(4) In addition to the matters a court must take into account under
6
subsection 82(6) of the Regulatory Powers Act in determining the
7
pecuniary penalty for a contravention of a civil penalty provision
8
by an RSE licensee, the court must take into account the impact
9
that the penalty under consideration would have on the
10
beneficiaries of any registrable superannuation entities of which
11
the RSE licensee is a trustee.
12
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 7
Enforceable undertakings
Section 84
86
Financial Accountability Regime Bill 2022
No. , 2022
Division 7--Enforceable undertakings
1
84 Enforceable undertakings
2
Enforceable provisions
3
(1) The provisions of this Act are enforceable under Part 6 of the
4
Regulatory Powers Act.
5
Note:
Part 6 of the Regulatory Powers Act creates a framework for
6
accepting and enforcing undertakings relating to compliance with
7
provisions.
8
Authorised person
9
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
10
Regulator is an authorised person in relation to the provisions
11
mentioned in subsection (1).
12
Relevant court
13
(3) For the purposes of Part 6 of the Regulatory Powers Act, the
14
Federal Court of Australia is a relevant court in relation to the
15
provisions mentioned in subsection (1).
16
Other undertakings
17
(4) An authorised person may accept an undertaking in connection
18
with a matter in relation to which the Regulator has a power or
19
function under this Act. The undertaking must be expressed to be
20
an undertaking under this subsection.
21
(5) The power in subsection (4) is in addition to the power of an
22
authorised person under subsection 114(1) of the Regulatory
23
Powers Act.
24
(6) Part 6 of the Regulatory Powers Act, other than subsections 114(1)
25
and (2), applies to an undertaking accepted under subsection (4) of
26
this section as if it were an undertaking accepted under
27
subsection 114(1) of the Regulatory Powers Act.
28
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Enforceable undertakings
Division 7
Section 84
No. , 2022
Financial Accountability Regime Bill 2022
87
Extension to external Territories
1
(7) Part 6 of the Regulatory Powers Act, as it applies in relation to the
2
provisions mentioned in subsection (1), extends to every external
3
Territory.
4
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 8
Injunctions
Section 85
88
Financial Accountability Regime Bill 2022
No. , 2022
Division 8--Injunctions
1
85 Injunctions
2
Enforceable provisions
3
(1) The provisions of this Act are enforceable under Part 7 of the
4
Regulatory Powers Act.
5
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
6
injunctions to enforce provisions.
7
Authorised person
8
(2) For the purposes of Part 7 of the Regulatory Powers Act, the
9
Regulator is an authorised person in relation to the provisions
10
mentioned in subsection (1).
11
Relevant court
12
(3) For the purposes of Part 7 of the Regulatory Powers Act, the
13
Federal Court of Australia is a relevant court in relation to the
14
provisions mentioned in subsection (1).
15
Consent injunctions
16
(4) A relevant court may grant an injunction under Part 7 of the
17
Regulatory Powers Act in relation to a provision mentioned in
18
subsection (1) of this section by consent of all the parties to
19
proceedings brought under that Part, whether or not the court is
20
satisfied that section 121 of that Act applies.
21
Extension to external Territories
22
(5) Part 7 of the Regulatory Powers Act, as it applies in relation to the
23
provisions mentioned in subsection (1), extends to every external
24
Territory.
25
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Miscellaneous
Division 9
Section 86
No. , 2022
Financial Accountability Regime Bill 2022
89
Division 9--Miscellaneous
1
86 Physical elements of offences
2
(1) This section applies if a provision of this Act provides that a person
3
contravening another provision of this Act (the
conduct provision
)
4
commits an offence.
5
(2) For the purposes of applying Chapter 2 of the
Criminal Code
to the
6
offence, the physical elements of the offence are set out in the
7
conduct provision.
8
Note:
Chapter 2 of the
Criminal Code
sets out general principles of criminal
9
responsibility.
10
87 Contravening an offence provision or a civil penalty provision
11
(1) This section applies if a provision of this Act provides that a person
12
contravening another provision of this Act (the
conduct provision
)
13
commits an offence or is liable to a civil penalty.
14
(2) For the purposes of this Act, a reference to a contravention of an
15
offence provision or a civil penalty provision includes a reference
16
to a contravention of the conduct provision.
17
Note:
The expression
this Act
includes the Regulatory Powers Act as it
18
applies in relation to this Act (see section 8).
19
88 Self-incrimination
20
(1) An individual is not excused from complying with a requirement
21
under this Act to give information, produce a book, account or
22
document or sign a record on the ground that doing so would tend
23
to incriminate the individual.
24
Note:
A body corporate is not entitled to claim the privilege against
25
self-incrimination.
26
(2) However, the information given, the record signed or the book,
27
account or document produced by the individual in compliance
28
with the requirement, is not admissible in evidence against the
29
Chapter 3
Administration
Part 4
Regulatory powers and enforcement
Division 9
Miscellaneous
Section 89
90
Financial Accountability Regime Bill 2022
No. , 2022
individual in criminal proceedings, other than proceedings in
1
respect of the falsity of the information, if:
2
(a) before complying with the requirement, the individual claims
3
that giving the information, signing the record or producing
4
the book, account or document might tend to incriminate the
5
individual; and
6
(b) giving the information, signing the record or producing the
7
book, account or document might in fact tend to incriminate
8
the individual.
9
(3) If, at general law, an individual would otherwise be able to claim
10
the privilege against self-exposure to a penalty (other than a
11
penalty for an offence) in relation to giving information, producing
12
a book, account or document, or signing a record under this Act,
13
the individual is not excused from giving the information,
14
producing the book, account or document, or signing the record,
15
under those provisions on that ground.
16
Note:
A body corporate is not entitled to claim the privilege against
17
self-exposure to a penalty.
18
89 Legal professional privilege
19
(1) This section applies if:
20
(a) under this Act, a person requires a lawyer;
21
(i) to give information; or
22
(ii) to produce a book, account or document; and
23
(b) either:
24
(i) giving the information would involve disclosing; or
25
(ii) the book, account or document contains;
26
a privileged communication made by, or on behalf of or to
27
the lawyer in their capacity as a lawyer.
28
(2) The lawyer is entitled to refuse to comply with the requirement
29
unless:
30
(a) if the person to whom, or by or on behalf of whom, the
31
communication was made is a body corporate that is under
32
administration or is being wound up--the administrator or
33
the liquidator of the body; or
34
Administration
Chapter 3
Regulatory powers and enforcement
Part 4
Miscellaneous
Division 9
Section 90
No. , 2022
Financial Accountability Regime Bill 2022
91
(b) otherwise--the person to whom, or by or on behalf of whom,
1
the communication was made;
2
consents to the lawyer complying with the requirement.
3
(3) If the lawyer so refuses, they must, as soon as practicable, give to
4
the person who made the requirement a written notice setting out:
5
(a) if the lawyer knows the name of the person to whom, or by or
6
on behalf of whom, the communication was made--that
7
name and address; and
8
(b) if subparagraph (1)(a)(i) applies and the communication was
9
made in writing--sufficient particulars to identify the
10
document containing the communication; and
11
(c) if subparagraph (1)(a)(ii) applies--sufficient particulars to
12
identify the book, account or document, or the part of the
13
book, account or document, containing the communication.
14
(4) A person commits an offence if the person refuses or fails to
15
comply with a requirement under this section.
16
Penalty: 30 penalty units.
17
90 Powers of Court relating to non-compliance with this Act
18
(1) If the Regulator or an investigator is satisfied that a person has,
19
without reasonable excuse, failed to comply with a requirement
20
made under this Act, the Regulator or the investigator may by
21
writing certify the failure to the Federal Court of Australia.
22
(2) If the Regulator or the investigator certifies the failure under
23
subsection (1), the Federal Court of Australia may inquire into the
24
case and may order the person to comply with the requirement as
25
specified in the order.
26
Chapter 3
Administration
Part 5
Review of decisions
Section 91
92
Financial Accountability Regime Bill 2022
No. , 2022
Part 5--Review of decisions
1
2
91 Reviewable decisions
3
A decision by the Regulator referred to in column 1 of an item of
4
the following table is a
reviewable decision
. Each person referred
5
to in column 2 of the item is an
affected person
for the decision.
6
7
Reviewable decisions
Item
Column 1
Decision
Column 2
Affected person
1
A decision under subsection 17(1) not to
specify an obligation that an accountable
entity need not comply with
The accountable entity
2
A decision under subsection 17(1) to
specify conditions to which a notice
specifying an obligation that an
accountable entity need not comply with is
subject
The accountable entity
3
A decision under subsection 19(1) not to
specify an obligation that an accountable
person of an accountable entity, or of a
significant related entity of an accountable
entity, need not comply with
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
4
A decision under subsection 19(1) to
specify conditions to which a notice
specifying an obligation that an
accountable person of an accountable
entity, or of a significant related entity of
an accountable entity, need not comply
with is subject
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
5
A decision under subsection 24(5) to
determine for the purposes of
paragraph 24(2)(b), (3)(b) or (4)(d) a
period that is shorter than the period that
would otherwise apply
Both of the following:
(a) the accountable entity;
(b) the significant related
entity
Administration
Chapter 3
Review of decisions
Part 5
Section 91
No. , 2022
Financial Accountability Regime Bill 2022
93
Reviewable decisions
Item
Column 1
Decision
Column 2
Affected person
6
A decision under subsection 26(3) that
remuneration of an accountable person of
an accountable entity, or of a significant
related entity of an accountable entity, is,
or is not, variable remuneration
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
7
A decision under subsection 26(3) to vary
the remuneration of an accountable person
of an accountable entity, or of a significant
related entity of an accountable entity, that
is, or is not, variable remuneration
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
8
A decision under subsection 26(3) to
refuse to vary the remuneration of an
accountable person of an accountable
entity, or of a significant related entity of
an accountable entity, that is, or is not,
variable remuneration
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
9
A decision under subsection 27(3) that the
value of variable remuneration of an
accountable person of an accountable
entity, or of a significant related entity of
an accountable entity, is to be worked out
in a particular way
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
10
A decision under subsection 27(3) to vary
the way that the value of variable
remuneration of an accountable person of
an accountable entity, or of a significant
related entity of an accountable entity, is to
be worked out
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
11
A decision under subsection 27(3) to
refuse to vary the way that the value of
variable remuneration of an accountable
person of an accountable entity, or of a
significant related entity of an accountable
entity, is to be worked out
All of the following:
(a) the accountable person;
(b) the accountable entity;
(c) the significant related
entity
12
A decision under subsection 42(1) to
All of the following:
Chapter 3
Administration
Part 5
Review of decisions
Section 91
94
Financial Accountability Regime Bill 2022
No. , 2022
Reviewable decisions
Item
Column 1
Decision
Column 2
Affected person
disqualify a person from being or acting as
an accountable person
(a) the person;
(b) an accountable entity;
(c) a significant related entity
13
A decision under subsection 43(1) to vary
or revoke a disqualification of a person
from being or acting as an accountable
person
All of the following:
(a) the person;
(b) an accountable entity;
(c) a significant related entity
14
A decision under subsection 43(1) to
refuse to vary or revoke a disqualification
of a person from being or acting as an
accountable person
All of the following:
(a) the person;
(b) an accountable entity;
(c) a significant related entity
15
A decision under subsection 64(1) to give
a direction to an accountable entity to do
something, or to cause something to be
done
Both of the following:
(a) the accountable entity;
(b) if another person is subject
to the direction--that
person
16
A decision under subsection 64(1) to vary
or revoke a direction given to an
accountable entity to do something, or to
cause something to be done
Both of the following:
(a) the accountable entity;
(b) if another person is subject
to the direction--that
person
17
A decision under subsection 64(1) to
refuse to vary or revoke a direction given
to an accountable entity to do something,
or to cause something to be done
Both of the following:
(a) the accountable entity;
(b) if another person is subject
to the direction--that
person
18
A decision under subsection 65(1) to give
a direction to an accountable entity to
reallocate a responsibility of a person
Both of the following:
(a) the accountable entity;
(b) the person
19
A decision under subsection 65(1) to vary
or revoke a direction given to an
accountable entity to reallocate a
Both of the following:
(a) the accountable entity;
(b) the person
Administration
Chapter 3
Review of decisions
Part 5
Section 92
No. , 2022
Financial Accountability Regime Bill 2022
95
Reviewable decisions
Item
Column 1
Decision
Column 2
Affected person
responsibility of a person
20
A decision under subsection 65(1) to
refuse to vary or revoke a direction given
to an accountable entity to reallocate a
responsibility of a person
Both of the following:
(a) the accountable entity;
(b) the person
92 Notice of decisions and review rights
1
(1) If written notice of a reviewable decision is given to an affected
2
person, the notice:
3
(a) must include a statement setting out particulars of the
4
person's review rights; and
5
(b) if the reviewable decision is in relation to a direction under
6
section 64 or 65 that is covered by a determination under
7
subsection 67(2)--may impose conditions relating to the
8
disclosure of information contained in reasons for the
9
decision that are included in the notice.
10
(2) A person commits an offence if:
11
(a) the person is given a notice of a reviewable decision; and
12
(b) the notice includes a condition relating to the disclosure of
13
information; and
14
(c) the person fails to comply with the condition.
15
Penalty: Imprisonment for 2 years.
16
Note:
A person does not commit the offence if the disclosure is made for the
17
purpose of seeking review or legal advice: see section 96.
18
93 Affected person may request reconsideration of reviewable
19
decision
20
(1) An affected person for a reviewable decision may request the
21
decision-maker to reconsider the decision.
22
Note:
For the meaning of
decision-maker
, see section 8.
23
Chapter 3
Administration
Part 5
Review of decisions
Section 94
96
Financial Accountability Regime Bill 2022
No. , 2022
(2) The request must:
1
(a) be made in writing; and
2
(b) set out the reasons for the request; and
3
(c) be given to the decision-maker within 21 days after the
4
affected person is notified of the reviewable decision.
5
94 Reconsideration of reviewable decision
6
(1) If a request is made under section 93 by an affected person for a
7
reviewable decision, the decision-maker must:
8
(a) personally reconsider the decision to which the application
9
relates; or
10
(b) cause the decision to be reconsidered by a delegate of the
11
decision-maker who:
12
(i) was not involved in making the decision; and
13
(ii) occupies a position that is at least the same level as that
14
occupied by the person who made the decision.
15
The person who reconsiders the decision is the
internal decision
16
reviewer
.
17
(2) After reconsidering the reviewable decision, the internal decision
18
reviewer must:
19
(a) affirm the decision; or
20
(b) vary the decision; or
21
(c) set the decision aside and substitute a new decision.
22
(3) After the internal decision reviewer makes the reconsideration
23
decision, the reviewer must give written notice of the following to
24
the applicant:
25
(a) the reconsideration decision;
26
(b) the date that decision takes effect;
27
(c) the reasons for that decision.
28
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
29
the applicant to be notified of the applicant's review rights.
30
(4) If the reviewable decision is in relation to a direction under section
31
64 or 65 that is covered by a determination under subsection 67(2),
32
Administration
Chapter 3
Review of decisions
Part 5
Section 95
No. , 2022
Financial Accountability Regime Bill 2022
97
the notice may impose conditions relating to the disclosure of
1
information contained in the reasons for the decision.
2
(5) A person commits an offence if:
3
(a) the person is given a notice under subsection (3); and
4
(b) the notice includes a condition relating to the disclosure of
5
information; and
6
(c) the person fails to comply with the condition.
7
Penalty: Imprisonment for 2 years.
8
Note:
A person does not commit the offence if the disclosure is made for the
9
purpose of seeking review or legal advice: see section 96.
10
(6) The internal decision reviewer is taken to have affirmed the
11
reviewable decision if the reviewer does not give notice of the
12
reconsideration decision to the applicant within 60 days after
13
receiving the application.
14
(7) The reconsideration decision is taken to have been made under the
15
provision under which the reviewable decision was made other
16
than for the purposes of section 93.
17
95 Review by the Administrative Appeals Tribunal
18
(1) Applications may be made to the Administrative Appeals Tribunal
19
for review of a reconsideration decision of an internal decision
20
reviewer.
21
Note:
For the definitions of
internal decision reviewer
and
reconsideration
22
decision
, see section 8.
23
(2) An application under subsection (1) may be made only by, or on
24
behalf of, an affected person for the reviewable decision.
25
Note:
For the definition of
affected person
, see section 8.
26
(3) Subsection (2) has effect despite subsection 27(1) of the
27
Administrative Appeals Tribunal Act 1975
.
28
Chapter 3
Administration
Part 6
Miscellaneous
Section 96
98
Financial Accountability Regime Bill 2022
No. , 2022
Part 6--Miscellaneous
1
2
96 Disclosure for the purpose of seeking review or legal advice
3
(1) A person does not commit an offence against subsection 92(2) or
4
94(5) by disclosing information if the disclosure is made for the
5
purposes of seeking review, under Part 5 of this Chapter or any
6
other applicable law, of:
7
(a) the direction referred to in paragraph 92(1)(b) or
8
subsection 94(4); or
9
(b) a decision made in relation to the direction.
10
(2) A person does not commit an offence against subsection 92(2) or
11
94(5) by disclosing information if:
12
(a) the disclosure is to the person's lawyer; and
13
(b) the purpose of the person making the disclosure is for the
14
lawyer to provide legal advice, or another legal service, in
15
relation to the direction referred to in paragraph 92(1)(b) or
16
subsection 94(4).
17
Note 1:
Subsections 92(2) and 94(5) create offences for disclosing information
18
that is contained in a notice and is subject to conditions relating to
19
disclosure.
20
Note 2:
A defendant bears an evidential burden in relation to the matters in
21
subsection (1) or (2) of this section (see subsection 13.3(3) of the
22
Criminal Code
).
23
97 Indemnifying accountable entities
24
(1) A significant related entity of an accountable entity must not
25
(whether by agreement or by making a payment, and whether
26
directly or through an interposed entity):
27
(a) indemnify the accountable entity against the consequences of
28
breaching an obligation under this Act; or
29
(b) pay, or agree to pay, a premium for a contract insuring the
30
accountable entity against the consequences of breaching an
31
obligation under this Act.
32
Administration
Chapter 3
Miscellaneous
Part 6
Section 98
No. , 2022
Financial Accountability Regime Bill 2022
99
(2) Subsection (1) does not apply to a liability for legal costs.
1
(3) Anything that purports to indemnify or insure a person against a
2
liability, or exempt them from a liability, is void to the extent that
3
it contravenes subsection (1).
4
(4) Without prejudice to their effect apart from this subsection:
5
(a) subsection (1) applies to a related body corporate (other than
6
a significant related entity) of an accountable entity in the
7
same way as it applies to a significant related entity of the
8
accountable entity; and
9
(b) subsections (2) and (3) have effect accordingly.
10
98 Causes of action not created
11
This Act does not have the effect of creating a cause of action that
12
would not have existed if this Act had not been enacted.
13
99 Compensation for acquisition of property
14
(1) If the operation of this Act would result in an acquisition of
15
property (within the meaning of paragraph 51(xxxi) of the
16
Constitution) from a person otherwise than on just terms (within
17
the meaning of that paragraph), the Commonwealth is liable to pay
18
a reasonable amount of compensation to the person.
19
(2) If the Commonwealth and the person do not agree on the amount
20
of the compensation, the person may institute proceedings in the
21
Federal Court of Australia or the Supreme Court of a State or
22
Territory for the recovery from the Commonwealth of such
23
reasonable amount of compensation as the court determines.
24
100 Conduct of directors, employees and agents
25
State of mind of an individual
26
(1) If, in proceedings for an offence against this Act, it is necessary to
27
establish the state of mind of an individual in relation to particular
28
conduct, it is sufficient to show:
29
Chapter 3
Administration
Part 6
Miscellaneous
Section 100
100
Financial Accountability Regime Bill 2022
No. , 2022
(a) that the conduct was engaged in by an employee or agent of
1
the individual within the scope of actual or apparent
2
authority; and
3
(b) that the employee or agent had the state of mind.
4
Conduct of an individual
5
(2) Any conduct engaged in on behalf of an individual by an employee
6
or agent of the individual within the scope of actual or apparent
7
authority is taken to have been engaged in also by the individual
8
unless the individual establishes that they took reasonable
9
precautions and exercised due diligence to avoid the conduct.
10
Note:
Part 2.5 of the
Criminal Code
and section 97 of the Regulatory
11
Powers Act deal with responsibility of bodies corporate for offences
12
and civil penalties.
13
Limitation on imprisonment
14
(3) If:
15
(a) an individual is convicted of an offence; and
16
(b) the individual would not have been convicted of the offence
17
if subsections (1) and (2) had not been enacted;
18
the individual is not liable to be punished by imprisonment for that
19
offence.
20
Extended meaning of state of mind
21
(4) A reference in subsection (1) to the state of mind of a person
22
includes a reference to:
23
(a) the person's knowledge, intention, opinion, belief or purpose;
24
and
25
(b) the person's reasons for the intention, opinion, belief or
26
purpose.
27
Engaging in conduct
28
(5) A reference in this section to engaging in conduct includes a
29
reference to failing or refusing to engage in conduct.
30
Administration
Chapter 3
Miscellaneous
Part 6
Section 101
No. , 2022
Financial Accountability Regime Bill 2022
101
101 Protection from liability--general
1
(1) A person is not subject to any liability to any person in respect of
2
anything done, or omitted to be done, in good faith and without
3
negligence in the exercise or performance, or the purported
4
exercise or performance, of powers, functions or duties under this
5
Act.
6
(2) Subsection (1) does not apply to a person referred to in section 58
7
of the
Australian Prudential Regulation Authority Act 1998
and, to
8
avoid doubt, does not affect the operation of that section.
9
Note:
Section 58 of the
Australian Prudential Regulation Authority Act 1998
10
deals with protection from liability for APRA, APRA members,
11
APRA staff members and their agents.
12
102 Protection from liability--directions and secrecy
13
(1) An action, suit or proceeding (whether criminal or civil) does not
14
lie against a person in relation to anything done, or omitted to be
15
done, in good faith by the person if:
16
(a) the person does the thing, or omits to do the thing, for the
17
purpose of any of the following:
18
(i) complying with a direction under this Act given by the
19
Regulator to an accountable entity;
20
(ii) complying with subsection 68(1), 92(2) or 94(5) in
21
relation to a direction under this Act given by the
22
Regulator to an accountable entity; and
23
(b) it is reasonable for the person to do the thing, or to omit to do
24
the thing, in order to achieve that purpose; and
25
(c) the person is any of the following:
26
(i) an officer or senior manager of the accountable entity,
27
or of a member of the accountable entity's relevant
28
group;
29
(ii) an employee or agent of the accountable entity, or of a
30
member of the accountable entity's relevant group;
31
(iii) the accountable entity or a member of the accountable
32
entity's relevant group.
33
Note:
For the definition of
relevant group
, see section 8.
34
Chapter 3
Administration
Part 6
Miscellaneous
Section 103
102
Financial Accountability Regime Bill 2022
No. , 2022
(2) For the purposes of paragraph (1)(b), treat it as reasonable for a
1
person to do a thing, or to omit to do a thing, in order to achieve a
2
purpose unless no reasonable person in that person's position
3
would do the thing, or omit to do the thing, in order to achieve that
4
purpose.
5
(3) In this section:
6
employee
of an accountable entity, or of a member of an
7
accountable entity's relevant group, includes a person engaged to
8
provide advice or services to the accountable entity or member.
9
103 Protection from liability--provisions do not limit each other
10
The following provisions do not limit the operation of each other:
11
(a) section 101 of this Act;
12
(b) section 102 of this Act;
13
(c) section 58 of the
Australian Prudential Regulation Authority
14
Act 1998
;
15
(d) section 246 of the
Australian Securities and Investments
16
Commission Act 2001
.
17
104 Minister rules
18
(1) The Minister may, by legislative instrument, make rules (the
19
Minister rules
) prescribing matters:
20
(a) required or permitted by this Act to be prescribed by the
21
Minister rules; or
22
(b) necessary or convenient to be prescribed for carrying out or
23
giving effect to this Act.
24
(2) To avoid doubt, the Minister rules may not do the following:
25
(a) create an offence or civil penalty;
26
(b) provide powers of:
27
(i) arrest or detention; or
28
(ii) entry, search or seizure;
29
(c) impose a tax;
30
(d) set an amount to be appropriated from the Consolidated
31
Revenue Fund under an appropriation in this Act;
32
Administration
Chapter 3
Miscellaneous
Part 6
Section 105
No. , 2022
Financial Accountability Regime Bill 2022
103
(e) directly amend the text of this Act.
1
(3) In this section, a reference to this Act does not include a reference
2
to the Minister rules, the Regulator rules or the Regulatory Powers
3
Act.
4
105 Regulator rules
5
(1) APRA and ASIC may jointly, by legislative instrument, make rules
6
(the
Regulator rules
) prescribing matters:
7
(a) required or permitted by this Act to be prescribed by the
8
Regulator rules; or
9
(b) necessary or convenient to be prescribed for carrying out or
10
giving effect to this Act.
11
(2) To avoid doubt, the Regulator rules may not do the following:
12
(a) create an offence or civil penalty;
13
(b) provide powers of:
14
(i) arrest or detention; or
15
(ii) entry, search or seizure;
16
(c) impose a tax;
17
(d) set an amount to be appropriated from the Consolidated
18
Revenue Fund under an appropriation in this Act;
19
(e) directly amend the text of this Act.
20
(3) Regulator rules that are inconsistent with the Minister rules have
21
no effect to the extent of the inconsistency, but the Regulator rules
22
are taken to be consistent with the Minister rules to the extent that
23
the Regulator rules are capable of operating concurrently with the
24
Minister rules.
25
(4) In this section, a reference to this Act does not include a reference
26
to the Regulator rules, the Minister rules or the Regulatory Powers
27
Act.
28
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