Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Financial Regulator Assessment
Authority Bill 2021
No. , 2021
(Treasury)
A Bill for an Act to establish the Financial
Regulator Assessment Authority, and for related
purposes
No. , 2021
Financial Regulator Assessment Authority Bill 2021
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Object of this Act............................................................................... 2
4
Simplified outline of this Act ............................................................ 2
5
Definitions ......................................................................................... 3
6
Act binds the Crown .......................................................................... 5
7
Act extends to things outside Australia ............................................. 5
Part 2--Establishment, functions and cooperation
6
Division 1--Simplified outline of this Part
6
8
Simplified outline of this Part ............................................................ 6
Division 2--Authority
7
9
Establishment .................................................................................... 7
10
Membership ....................................................................................... 7
11
Authority is part of the Department for certain purposes................... 7
Division 3--Functions
8
12
Functions ........................................................................................... 8
13
Timing and requests relating to the biennial assessment and
reporting functions............................................................................. 8
14
Requests relating to the ad hoc assessment and reporting
function.............................................................................................. 9
15
Assessments and reviews undertaken by others ................................ 9
16
Reports to be given to APRA or ASIC ............................................ 10
17
Biennial reports must be tabled ....................................................... 10
18
Powers ............................................................................................. 10
19
Independence ................................................................................... 10
Division 4--Cooperation with Authority
12
20
Cooperation with Authority ............................................................. 12
21
Legal professional privilege ............................................................ 13
Part 3--Members, staff and consultants
14
Division 1--Simplified outline of this Part
14
22
Simplified outline of this Part .......................................................... 14
Division 2--Departmental member
15
23
Departmental member ..................................................................... 15
Division 3--Appointed members
16
ii
Financial Regulator Assessment Authority Bill 2021
No. , 2021
24
Appointment .................................................................................... 16
25
Period of appointment ..................................................................... 16
26
Acting appointments ........................................................................ 16
27
Remuneration .................................................................................. 17
28
Leave ............................................................................................... 17
29
Terms and conditions ...................................................................... 18
30
Other paid work ............................................................................... 18
31
Disclosure of interests ..................................................................... 18
32
Resignation ...................................................................................... 18
33
Termination of appointment ............................................................ 18
Division 4--Decision-making by Authority
20
34
Meetings of Authority ..................................................................... 20
35
Decisions without meetings ............................................................. 20
Division 5--Staff and consultants
21
36
Arrangements relating to the staff of the Department ...................... 21
37
Consultants ...................................................................................... 21
Part 4--Information management
22
Division 1--Simplified outline of this Part
22
38
Simplified outline of this Part .......................................................... 22
Division 2--Inclusion of information in reports
23
39
Protected information not to be included in reports ......................... 23
Division 3--Secrecy
24
Subdivision A--Unauthorised use or disclosure of protected
information
24
40
Unauthorised use or disclosure of protected information ................ 24
41
Limit on disclosure to courts and tribunals ...................................... 25
Subdivision B--Authorised use or disclosure of protected
information
25
42
Authorisation to use or disclose protected information for the
purposes of functions, duties and powers ........................................ 25
43
Authorisation to disclose protected information to the
Secretary, APRA and ASIC ............................................................. 26
44
Authorisation to use or disclose protected information for
purposes of enforcement related activity ......................................... 26
45
Authorisation to use or disclose protected information in the
public interest .................................................................................. 26
Part 5--Miscellaneous
28
46
Simplified outline of this Part .......................................................... 28
No. , 2021
Financial Regulator Assessment Authority Bill 2021
iii
47
Protection from liability................................................................... 28
48
Delegation by Minister .................................................................... 29
49
Delegation by Authority .................................................................. 29
50
Delegation by Secretary................................................................... 30
51
Rules ................................................................................................ 31
No. , 2021
Financial Regulator Assessment Authority Bill 2021
1
A Bill for an Act to establish the Financial
1
Regulator Assessment Authority, and for related
2
purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Financial Regulator Assessment Authority Act
8
2021
.
9
Part 1
Preliminary
Section 2
2
Financial Regulator Assessment Authority Bill 2021
No. , 2021
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) 1 July 2021.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Object of this Act
13
The object of this Act is to provide for the independent assessment
14
of:
15
(a) APRA's effectiveness and capability; and
16
(b) ASIC's effectiveness and capability.
17
4 Simplified outline of this Act
18
This Act establishes the Financial Regulator Assessment Authority.
19
Every 2 years, the Authority is to assess the effectiveness and
20
capability of APRA and ASIC and then report to the Minister. The
21
Authority is also to undertake ad hoc assessments on any matter
22
relating to APRA's, or ASIC's, effectiveness and capability when
23
requested by the Minister.
24
Preliminary
Part 1
Section 5
No. , 2021
Financial Regulator Assessment Authority Bill 2021
3
The Authority consists of the Chair, the Departmental member and
1
2 other members. It is assisted by APS employees in the
2
Department whose services are made available by the Secretary.
3
The Authority may request information from APRA and ASIC.
4
There are limitations on how some of this information can be used
5
and disclosed.
6
5 Definitions
7
In this Act:
8
appointed member
means a member other than the Departmental
9
member.
10
APRA
means the Australian Prudential Regulation Authority.
11
ASIC
means the Australian Securities and Investments
12
Commission.
13
Authority
means the Financial Regulator Assessment Authority.
14
biennial report
means a report mentioned in paragraph 12(1)(a) or
15
(b).
16
Chair
means the Chair of the Authority.
17
Departmental member
: see section 23.
18
enforcement body
has the same meaning as in the
Privacy Act
19
1988
.
20
enforcement related activity
has the same meaning as in the
21
Privacy Act 1988
.
22
entrusted person
means:
23
(a) a member; or
24
(b) a staff member; or
25
(c) the Secretary; or
26
(d) an APS employee; or
27
(e) a consultant engaged under section 37; or
28
Part 1
Preliminary
Section 5
4
Financial Regulator Assessment Authority Bill 2021
No. , 2021
(f) any other person employed or engaged to provide services to
1
the Commonwealth in connection with the Authority; or
2
(g) an officer or employee of a person mentioned in
3
paragraph (e) or (f) whose duties relate to the Authority.
4
member
means a member of the Authority and includes the Chair
5
and the Departmental member.
6
officer
has the same meaning as in section 9 of the
Corporations
7
Act 2001
.
8
paid work
means work for financial gain or reward (whether as an
9
employee, a self-employed person or otherwise).
10
protected information
means information of any of the following
11
kinds that is obtained by the Authority from APRA or ASIC (the
12
source agency
):
13
(a) information that is prohibited from being disclosed by a
14
person under:
15
(i) a law of the Commonwealth other than this Act; or
16
(ii) a law of a State or Territory;
17
(b) information the disclosure of which by the source agency
18
would or could reasonably be expected to found an action by
19
a person (other than the Commonwealth) for breach of a duty
20
of confidence;
21
(c) information that is protected against disclosure by legal
22
professional privilege;
23
(d) information the disclosure of which:
24
(i) could reasonably be expected to prejudice the security,
25
defence or international relations of Australia; or
26
(ii) could reasonably be expected to prejudice relations
27
between the Commonwealth Government and the
28
Government of a State or Territory; or
29
(iii) would involve disclosing deliberations or decisions of
30
the Cabinet, or of a Committee of the Cabinet; or
31
(iv) could reasonably be expected to endanger a person's life
32
or physical safety; or
33
(v) could reasonably be expected to prejudice one or more
34
enforcement related activities; or
35
Preliminary
Part 1
Section 6
No. , 2021
Financial Regulator Assessment Authority Bill 2021
5
(vi) would involve unreasonably disclosing personal
1
information (within the meaning of the
Privacy Act
2
1988
).
3
Note:
For the purposes of paragraph (a), the following do not matter:
4
(a) who the law prohibits from disclosing the information;
5
(b) the circumstances in which the law prohibits the disclosure.
6
rules
means the rules made under section 51.
7
Secretary
means the Secretary of the Department.
8
staff member
means a member of the staff assisting the Authority
9
(see section 36).
10
use
, in relation to information, includes make a record of.
11
6 Act binds the Crown
12
(1) This Act binds the Crown in each of its capacities.
13
(2) This Act does not make the Crown liable to be prosecuted for an
14
offence.
15
7 Act extends to things outside Australia
16
This Act extends to acts, omissions, matters and things outside
17
Australia.
18
Part 2
Establishment, functions and cooperation
Division 1
Simplified outline of this Part
Section 8
6
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Part 2--Establishment, functions and cooperation
1
Division 1--Simplified outline of this Part
2
8 Simplified outline of this Part
3
The Financial Regulator Assessment Authority is established.
4
The Authority's functions include:
5
(a)
once every 2 years, assessing the effectiveness and
6
capability of each of APRA and ASIC and reporting to
7
the Minister; and
8
(b)
when requested by the Minister, undertaking
9
assessments on any matter relating to APRA's, or
10
ASIC's, effectiveness and capability.
11
APRA and ASIC and their members and staff are required to
12
cooperate with and provide information to the Authority.
13
Establishment, functions and cooperation
Part 2
Authority
Division 2
Section 9
No. , 2021
Financial Regulator Assessment Authority Bill 2021
7
Division 2--Authority
1
9 Establishment
2
The Financial Regulator Assessment Authority is established by
3
this section.
4
10 Membership
5
The Authority consists of the following members:
6
(a) a Chair;
7
(b) the Departmental member;
8
(c) 2 other members.
9
11 Authority is part of the Department for certain purposes
10
For the purposes of paragraph (a) of the definition of
Department
11
of State
in section 8 of the
Public Governance, Performance and
12
Accountability Act 2013
, the Authority is prescribed in relation to
13
the Department.
14
Note:
This means that the members are officials of the Department for the
15
purposes of the
Public Governance, Performance and Accountability
16
Act 2013
.
17
Part 2
Establishment, functions and cooperation
Division 3
Functions
Section 12
8
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Division 3--Functions
1
12 Functions
2
(1) The Authority has the following functions:
3
(a) to assess and report to the Minister on APRA's effectiveness
4
and capability;
5
(b) to assess and report to the Minister on ASIC's effectiveness
6
and capability;
7
(c) at any time when requested by the Minister, to assess and
8
report to the Minister on any matter relating to:
9
(i) APRA's effectiveness and capability; or
10
(ii) ASIC's effectiveness and capability;
11
(d) any other function conferred by this Act or any other law of
12
the Commonwealth;
13
(e) any other function that is incidental or conducive to the
14
performance of any of the above functions.
15
(2) However, the functions of the Authority do not include assessing
16
or reporting on only a single case.
17
(3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:
18
(a) undertake an assessment itself; or
19
(b) cause an assessment, or the preparation of the resulting
20
report, to be undertaken by someone else.
21
13 Timing and requests relating to the biennial assessment and
22
reporting functions
23
(1) The Authority must undertake each of the assessments mentioned
24
in paragraphs 12(1)(a) and (b) once in every 2 financial years
25
starting on 1 July 2021.
26
(2) The Minister may request the Authority to:
27
(a) consider one or more matters; or
28
(b) not consider one or more matters;
29
when undertaking such an assessment.
30
Establishment, functions and cooperation
Part 2
Functions
Division 3
Section 14
No. , 2021
Financial Regulator Assessment Authority Bill 2021
9
(3) The Authority must comply with such a request.
1
(4) If such a request is made in writing, the request is not a legislative
2
instrument.
3
(5) The Minister may withdraw or amend such a request at any time
4
before the Authority reports to the Minister.
5
14 Requests relating to the ad hoc assessment and reporting function
6
(1) The Minister may request the Authority to assess and report on a
7
matter mentioned in paragraph 12(1)(c).
8
(2) The Minister may include in such a request terms of reference
9
(including timeframes) for the assessment and report.
10
(3) The Authority must comply with such a request.
11
(4) If such a request is made in writing, the request is not a legislative
12
instrument.
13
(5) The Minister may withdraw or amend such a request at any time
14
before the Authority reports to the Minister.
15
15 Assessments and reviews undertaken by others
16
(1) In performing the functions mentioned in paragraphs 12(1)(a) to
17
(c), the Authority may take into account any of the following that
18
the Authority considers relevant:
19
(a) an assessment relating to:
20
(i) APRA's effectiveness and capability; or
21
(ii) ASIC's effectiveness and capability;
22
undertaken by someone other than the Authority;
23
(b) a review relating to APRA or ASIC undertaken by someone
24
other than the Authority.
25
(2) Subsection (1) does not limit the matters the Authority may take
26
into account in performing its functions or exercising its powers.
27
Part 2
Establishment, functions and cooperation
Division 3
Functions
Section 16
10
Financial Regulator Assessment Authority Bill 2021
No. , 2021
16 Reports to be given to APRA or ASIC
1
Proposed reports
2
(1) Before giving a report mentioned in section 12 to the Minister, the
3
Authority must give a copy of the proposed report to the following:
4
(a) if the proposed report relates to APRA--APRA;
5
(b) if the proposed report relates to ASIC--ASIC.
6
(2) If the recipient of the proposed report gives written comments to
7
the Authority, the Authority must consider the comments before
8
giving the final report to the Minister.
9
Final reports
10
(3) If the Authority gives a report mentioned in section 12 to the
11
Minister, the Authority must give a copy to the following:
12
(a) if the report relates to APRA--APRA;
13
(b) if the report relates to ASIC--ASIC.
14
(4) The Authority must not publish a report mentioned in section 12
15
unless the report has been tabled in a House of the Parliament or
16
published by the Minister.
17
17 Biennial reports must be tabled
18
The Minister must cause a copy of a biennial report to be tabled in
19
each House of the Parliament within 20 sitting days of that House
20
after the report is received by the Minister.
21
18 Powers
22
The Authority has power to do all things necessary or convenient
23
to be done for or in connection with the performance of its
24
functions.
25
19 Independence
26
Subject to this Act and to other laws of the Commonwealth:
27
Establishment, functions and cooperation
Part 2
Functions
Division 3
Section 19
No. , 2021
Financial Regulator Assessment Authority Bill 2021
11
(a) the Authority has complete discretion in the performance of
1
the Authority's functions and the exercise of the Authority's
2
powers; and
3
(b) the Authority is not subject to direction from anyone in
4
relation to:
5
(i) how a particular assessment will be undertaken; or
6
(ii) the content of a report to the Minister.
7
Note:
The Authority may be requested to do certain things (see subsections
8
13(2) and 14(1)).
9
Part 2
Establishment, functions and cooperation
Division 4
Cooperation with Authority
Section 20
12
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Division 4--Cooperation with Authority
1
20 Cooperation with Authority
2
Cooperation
3
(1) A person to whom this section applies must cooperate with the
4
Authority, the members and the staff members, to the extent
5
reasonably necessary to enable the Authority to perform its
6
functions and exercise its powers.
7
Information gathering
8
(2) Without limiting subsection (1), a person to whom this section
9
applies must, to the extent reasonably necessary to enable the
10
Authority to perform its functions and exercise its powers:
11
(a) give the Authority any information that is requested by the
12
Authority; and
13
(b) produce any document in APRA's or ASIC's possession that
14
is requested by the Authority; and
15
(c) answer any questions asked by the Authority.
16
(3) A request by the Authority under paragraph (2)(a) or (b) must
17
allow the person a reasonable time to comply.
18
(4) The Authority must notify a person that it intends to ask the person
19
questions under paragraph (2)(c) a reasonable time before asking
20
the questions.
21
Persons to whom this section applies
22
(5) This section applies to the following:
23
(a) APRA;
24
(b) an APRA member (within the meaning of subsection 3(1) of
25
the
Australian Prudential Regulation Authority Act 1998
);
26
(c) an APRA staff member (within the meaning of that
27
subsection);
28
(d) ASIC;
29
Establishment, functions and cooperation
Part 2
Cooperation with Authority
Division 4
Section 21
No. , 2021
Financial Regulator Assessment Authority Bill 2021
13
(e) a member of ASIC;
1
(f) a staff member (within the meaning of subsection 5(1) of the
2
Australian Securities and Investments Commission Act 2001
).
3
21 Legal professional privilege
4
(1) A person is not excused from giving information, producing a
5
document or answering a question under section 20 on the ground
6
that to do so would disclose material that is protected against
7
disclosure by legal professional privilege.
8
(2) The fact that a person is not excused under subsection (1) from
9
giving information, producing a document or answering a question
10
does not otherwise affect a claim of legal professional privilege
11
that anyone may make in relation to that information, document or
12
answer.
13
Part 3
Members, staff and consultants
Division 1
Simplified outline of this Part
Section 22
14
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Part 3--Members, staff and consultants
1
Division 1--Simplified outline of this Part
2
22 Simplified outline of this Part
3
Three members of the Authority, including the Chair, are
4
appointed by the Minister. The other member is the Secretary or
5
the Secretary's nominee.
6
The Chair is to convene meetings of the Authority.
7
The Authority is assisted by APS employees in the Department
8
whose services are made available by the Secretary. The Secretary
9
may engage consultants to assist the Authority.
10
Members, staff and consultants
Part 3
Departmental member
Division 2
Section 23
No. , 2021
Financial Regulator Assessment Authority Bill 2021
15
Division 2--Departmental member
1
23 Departmental member
2
(1) The
Departmental member
is:
3
(a) the person nominated by the Secretary under subsection (2);
4
or
5
(b) if there is no such nomination--the Secretary.
6
(2) The Secretary may, in writing, nominate an SES employee in the
7
Department (other than a staff member) to be the Departmental
8
member.
9
(3) The office of Departmental member is not a public office for the
10
purposes of the
Remuneration Tribunal Act 1973
.
11
Part 3
Members, staff and consultants
Division 3
Appointed members
Section 24
16
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Division 3--Appointed members
1
24 Appointment
2
(1) Appointed members are to be appointed by the Minister by written
3
instrument.
4
Note:
An appointed member may be reappointed, subject to
5
subsection 25(2): see section 33AA of the
Acts Interpretation Act
6
1901
.
7
(2) Before appointing a person as an appointed member, the Minister
8
must have regard to the person's experience, expertise and
9
qualifications in fields relevant to the Authority's functions.
10
(3) In making appointments, the Minister must, to the extent
11
reasonably practicable, ensure that the members collectively
12
possess the skills and qualifications necessary for the Authority to
13
perform its functions.
14
(4) The Minister must appoint one appointed member to be the Chair.
15
(5) An appointed member holds office on a part-time basis.
16
25 Period of appointment
17
(1) An appointed member holds office for the period specified in the
18
instrument of appointment. The period must not exceed 5 years.
19
(2) A person must not hold office as an appointed member for a total
20
of more than 10 years.
21
26 Acting appointments
22
Acting members
23
(1) The Minister may, by written instrument, appoint a person to act as
24
an appointed member:
25
(a) during a vacancy in the office of an appointed member
26
(whether or not an appointment has previously been made to
27
the office); or
28
Members, staff and consultants
Part 3
Appointed members
Division 3
Section 27
No. , 2021
Financial Regulator Assessment Authority Bill 2021
17
(b) during any period, or during all periods, when an appointed
1
member:
2
(i) is absent from duty; or
3
(ii) is, for any reason, unable to perform the duties of the
4
office.
5
Note:
For rules that apply to acting appointments, see sections 33AB and
6
33A of the
Acts Interpretation Act 1901
.
7
Acting Chair
8
(2) The Minister may, by written instrument, appoint an appointed
9
member to act as the Chair:
10
(a) during a vacancy in the office of Chair (whether or not an
11
appointment has previously been made to the office); or
12
(b) during any period, or during all periods, when the Chair:
13
(i) is absent from duty; or
14
(ii) is, for any reason, unable to perform the duties of the
15
office.
16
Note:
For rules that apply to acting appointments, see sections 33AB and
17
33A of the
Acts Interpretation Act 1901
.
18
27 Remuneration
19
(1) An appointed member is to be paid the remuneration that is
20
determined by the Remuneration Tribunal. If no determination of
21
that remuneration by the Tribunal is in operation, the appointed
22
member is to be paid the remuneration that is prescribed by the
23
rules.
24
(2) An appointed member is to be paid the allowances that are
25
prescribed by the rules.
26
(3) This section has effect subject to the
Remuneration Tribunal Act
27
1973
.
28
28 Leave
29
The Minister may grant leave of absence to any appointed member
30
on the terms and conditions that the Minister determines.
31
Part 3
Members, staff and consultants
Division 3
Appointed members
Section 29
18
Financial Regulator Assessment Authority Bill 2021
No. , 2021
29 Terms and conditions
1
An appointed member holds office on the terms and conditions (if
2
any) in relation to matters not covered by this Act that are
3
determined by the Minister.
4
30 Other paid work
5
An appointed member must not engage in any paid work that, in
6
the Minister's opinion, conflicts or could conflict with the proper
7
performance of the member's duties.
8
31 Disclosure of interests
9
(1) A disclosure by an appointed member under section 29 of the
10
Public Governance, Performance and Accountability Act 2013
11
(which deals with the duty to disclose interests) must be made to
12
the Minister.
13
(2) Subsection (1) applies in addition to any rules made for the
14
purposes of that section.
15
(3) For the purposes of this Act and the
Public Governance,
16
Performance and Accountability Act 2013
, the appointed member
17
is taken not to have complied with section 29 of that Act if the
18
member does not comply with subsection (1) of this section.
19
32 Resignation
20
(1) An appointed member may resign the member's appointment by
21
giving the Minister a written resignation.
22
(2) The resignation takes effect on the day it is received by the
23
Minister or, if a later day is specified in the resignation, on that
24
later day.
25
33 Termination of appointment
26
(1) The Minister may terminate the appointment of an appointed
27
member:
28
(a) for misbehaviour; or
29
Members, staff and consultants
Part 3
Appointed members
Division 3
Section 33
No. , 2021
Financial Regulator Assessment Authority Bill 2021
19
(b) if the member is unable to perform the duties of the
1
member's office because of physical or mental incapacity.
2
(2) The Minister may terminate the appointment of an appointed
3
member if:
4
(a) the member:
5
(i) becomes bankrupt; or
6
(ii) applies to take the benefit of any law for the relief of
7
bankrupt or insolvent debtors; or
8
(iii) compounds with the member's creditors; or
9
(iv) makes an assignment of the member's remuneration for
10
the benefit of the member's creditors; or
11
(b) the member is absent, except on leave of absence, from 3
12
consecutive meetings of the Authority; or
13
(c) the member engages in paid work that, in the Minister's
14
opinion, conflicts or could conflict with the proper
15
performance of member's duties (see section 30); or
16
(d) the member fails, without reasonable excuse, to comply with
17
section 29 of the
Public Governance, Performance and
18
Accountability Act 2013
(which deals with the duty to
19
disclose interests) or rules made for the purposes of that
20
section.
21
Part 3
Members, staff and consultants
Division 4
Decision-making by Authority
Section 34
20
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Division 4--Decision-making by Authority
1
34 Meetings of Authority
2
(1) The Chair must convene such meetings of the Authority as are, in
3
the Chair's opinion, necessary for the efficient performance of the
4
Authority's functions and exercise of the Authority's powers.
5
Note:
Section 33B of the
Acts Interpretation Act 1901
contains information
6
about the ways in which members may participate in meetings.
7
(2) Subject to subsection (4) and section 35, the Authority may operate
8
in the way it determines.
9
(3) A determination under subsection (2) must be made by a majority
10
of members at a meeting of the Authority at which the Chair has a
11
deliberative vote and, in the event of an equality of votes, a casting
12
vote.
13
(4) The Chair must ensure that minutes of meetings are kept.
14
35 Decisions without meetings
15
(1) The Authority is taken to have made a decision at a meeting if the
16
decision is made in accordance with procedures determined under
17
subsection 34(2) for making decisions without meeting.
18
(2) A member is not entitled to take part in making a proposed
19
decision as mentioned in subsection (1) if the member would not
20
have been entitled to vote on the proposal if the matter had been
21
considered at a meeting of the Authority.
22
(3) The Authority must keep a record of decisions made in accordance
23
with this section.
24
Members, staff and consultants
Part 3
Staff and consultants
Division 5
Section 36
No. , 2021
Financial Regulator Assessment Authority Bill 2021
21
Division 5--Staff and consultants
1
36 Arrangements relating to the staff of the Department
2
(1) The staff assisting the Authority are to be APS employees in the
3
Department whose services are made available to the Authority, by
4
the Secretary, in connection with the performance of any of the
5
Authority's functions or the exercise of any of the Authority's
6
powers.
7
(2) When performing services for the Authority, the staff are subject to
8
the directions of the Authority.
9
37 Consultants
10
The Secretary may, on behalf of the Commonwealth, engage
11
consultants to assist in the performance of any of the Authority's
12
functions or the exercise of any of the Authority's powers.
13
Part 4
Information management
Division 1
Simplified outline of this Part
Section 38
22
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Part 4--Information management
1
Division 1--Simplified outline of this Part
2
38 Simplified outline of this Part
3
Some of the information the Authority obtains from APRA or
4
ASIC is protected information.
5
The Authority must not include protected information in its reports
6
to the Minister.
7
An entrusted person may commit an offence if the person uses or
8
discloses protected information other than in certain circumstances.
9
Information management
Part 4
Inclusion of information in reports
Division 2
Section 39
No. , 2021
Financial Regulator Assessment Authority Bill 2021
23
Division 2--Inclusion of information in reports
1
39 Protected information not to be included in reports
2
(1) The Authority must not include protected information in a report
3
mentioned in section 12.
4
(2) Before giving such a report to the Minister, the Authority must
5
consult with the following to ensure that protected information is
6
not included in the report:
7
(a) if the report is prepared using information obtained by the
8
Authority from APRA--APRA;
9
(b) if the report is prepared using information obtained by the
10
Authority from ASIC--ASIC.
11
(3) This section does not apply in relation to protected information that
12
has already been lawfully made available to the public.
13
Part 4
Information management
Division 3
Secrecy
Section 40
24
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Division 3--Secrecy
1
Subdivision A--Unauthorised use or disclosure of protected
2
information
3
40 Unauthorised use or disclosure of protected information
4
(1) A person commits an offence if:
5
(a) the person is, or has been, an entrusted person; and
6
(b) the person obtains information in the person's capacity as an
7
entrusted person; and
8
(c) the information is protected information; and
9
(d) the person uses or discloses the information; and
10
(e) the use or disclosure is not authorised by a provision in
11
Subdivision B.
12
Penalty: Imprisonment for 2 years.
13
(2) Subsection (1) does not apply in relation to use or disclosure of
14
information if the information has already been lawfully made
15
available to the public.
16
Note:
A defendant bears an evidential burden in relation to a matter in
17
subsection (2) (see subsection 13.3(3) of the
Criminal Code
).
18
(3) Subsection (1) does not apply if the conduct is:
19
(a) authorised by a law of the Commonwealth other than the
20
following:
21
(i) this Act;
22
(ii) subsection 11CM(1) of the
Banking Act 1959
;
23
(iii) subsection 109E(1) of the
Insurance Act 1973
;
24
(iv) subsection 231E(1) of the
Life Insurance Act 1995
; or
25
(b) in compliance with a requirement under a law of the
26
Commonwealth other than this Act.
27
Note:
A defendant bears an evidential burden in relation to a matter in
28
subsection (3) (see subsection 13.3(3) of the
Criminal Code
).
29
Information management
Part 4
Secrecy
Division 3
Section 41
No. , 2021
Financial Regulator Assessment Authority Bill 2021
25
(4) Section 15.4 of the
Criminal Code
(Extended geographical
1
jurisdiction--category D) applies to an offence against
2
subsection (1).
3
41 Limit on disclosure to courts and tribunals
4
(1) Except when it is necessary to do so for the purposes of this Act, a
5
person who is, or has been, an entrusted person is not to be
6
required to disclose, or produce a document containing, protected
7
information to:
8
(a) a court; or
9
(b) a tribunal, authority or person that has the power to require
10
the answering of questions or the production of documents.
11
(2) However, subsection (1) does not prevent a person who is, or has
12
been, an officer (within the meaning of section 56 of the
Australian
13
Prudential Regulation Authority Act 1998
) from being required to
14
disclose protected information (within the meaning of that section),
15
or to produce a protected document (within the meaning of that
16
section), when it is necessary to do so for the purposes of a
17
prudential regulation framework law (within the meaning of
18
subsection 3(1) of that Act).
19
Subdivision B--Authorised use or disclosure of protected
20
information
21
42 Authorisation to use or disclose protected information for the
22
purposes of functions, duties and powers
23
An entrusted person may use or disclose protected information:
24
(a) for the purposes of this Act; or
25
(b) in performing functions, or exercising powers, under a law of
26
the Commonwealth as an entrusted person; or
27
(c) in performing duties as an entrusted person in relation to the
28
Authority.
29
Part 4
Information management
Division 3
Secrecy
Section 43
26
Financial Regulator Assessment Authority Bill 2021
No. , 2021
43 Authorisation to disclose protected information to the Secretary,
1
APRA and ASIC
2
(1) An entrusted person may disclose protected information to:
3
(a) the Secretary; or
4
(b) APRA; or
5
(c) ASIC.
6
(2) An entrusted person may use protected information for the
7
purposes of disclosing protected information under subsection (1).
8
44 Authorisation to use or disclose protected information for
9
purposes of enforcement related activity
10
(1) An entrusted person may use protected information, or disclose
11
protected information to an enforcement body, if the entrusted
12
person reasonably believes that the use or disclosure is reasonably
13
necessary for, or directly related to, one or more enforcement
14
related activities being conducted by, or on behalf of, an
15
enforcement body.
16
(2) An enforcement body to which protected information is disclosed
17
under subsection (1) may use or disclose the information for the
18
purposes of conducting one or more enforcement related activities.
19
45 Authorisation to use or disclose protected information in the
20
public interest
21
(1) The Secretary may, in writing:
22
(a) certify that it is necessary in the public interest for an
23
entrusted person to use or disclose protected information in a
24
particular case; and
25
(b) specify any conditions on the use or disclosure.
26
(2) A certificate made under subsection (1) is not a legislative
27
instrument.
28
(3) An entrusted person may use or disclose protected information in a
29
particular case if:
30
Information management
Part 4
Secrecy
Division 3
Section 45
No. , 2021
Financial Regulator Assessment Authority Bill 2021
27
(a) the Secretary has certified under subsection (1) that it is
1
necessary in the public interest for the entrusted person to do
2
so; and
3
(b) the use or disclosure is in accordance with any conditions
4
specified in the certificate.
5
(4) Applications may be made to the Administrative Appeals Tribunal
6
for review of decisions of the Secretary under subsection (1).
7
Part 5
Miscellaneous
Section 46
28
Financial Regulator Assessment Authority Bill 2021
No. , 2021
Part 5--Miscellaneous
1
2
46 Simplified outline of this Part
3
This Part deals with miscellaneous matters such as liability,
4
delegations and rules.
5
47 Protection from liability
6
Members and staff members
7
(1) A member or a staff member (the
protected person
) is not liable to
8
civil proceedings for loss, damage or injury of any kind suffered by
9
another person as a result of an act done or omitted to be done in
10
good faith:
11
(a) in the performance or purported performance of any function
12
or duty of the protected person or the Authority under or in
13
relation to this Act; or
14
(b) in the exercise or purported exercise of any power of the
15
protected person or the Authority under or in relation to this
16
Act.
17
Consultants and contractors etc.
18
(2) A person mentioned in paragraph (e), (f) or (g) of the definition of
19
entrusted person
in section 5 is not liable to civil proceedings for
20
loss, damage or injury of any kind suffered by another person as a
21
result of an act done or omitted to be done in good faith:
22
(a) in assisting in the performance or purported performance of
23
any function or duty of the Authority under or in relation to
24
this Act; or
25
(b) in assisting in the exercise or purported exercise of any
26
power of the Authority under or in relation to this Act.
27
Miscellaneous
Part 5
Section 48
No. , 2021
Financial Regulator Assessment Authority Bill 2021
29
Members and staff of cooperating agencies
1
(3) An individual mentioned in subsection 20(5) is not liable to civil
2
proceedings for loss, damage or injury of any kind suffered by
3
another person as a result of any of the following acts done in good
4
faith under, or purportedly under, subsection 20(2):
5
(a) giving the Authority information;
6
(b) producing a document to the Authority;
7
(c) answering a question asked by the Authority.
8
48 Delegation by Minister
9
(1) The Minister may, in writing, delegate to:
10
(a) the Secretary; or
11
(b) an SES employee or an acting SES employee in the
12
Department, other than a staff member;
13
the Minister's functions or powers under the following provisions:
14
(c) subsection 26(2) (appointment of acting Chair);
15
(d) section 28 (leave).
16
Note:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
17
provisions relating to delegations.
18
(2) A delegate must not perform a function, or exercise a power,
19
delegated under subsection (1) if the delegate is the Departmental
20
member.
21
(3) In performing a function, or exercising a power, delegated under
22
subsection (1), the delegate must comply with any written
23
directions of the Minister.
24
49 Delegation by Authority
25
(1) The Authority may, in writing, delegate to a member or staff
26
member the Authority's functions or powers under the following
27
provisions:
28
(a) subsections 16(1) and (3) (reports to be given to APRA or
29
ASIC);
30
(b) subsection 39(2) (protected information not to be included in
31
reports).
32
Part 5
Miscellaneous
Section 50
30
Financial Regulator Assessment Authority Bill 2021
No. , 2021
(2) The Authority may, in writing, delegate the Authority's functions
1
or powers under subsection 20(2) (cooperation with Authority) to:
2
(a) a member; or
3
(b) a staff member who is:
4
(i) an SES employee; or
5
(ii) an acting SES employee; or
6
(iii) classified as Executive Level 2 or equivalent; or
7
(iv) acting in a position usually occupied by an APS
8
employee who is so classified.
9
Note:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
10
provisions relating to delegations.
11
(3) In performing a function, or exercising a power, delegated under
12
subsection (1) or (2), the delegate must comply with any written
13
directions of the Authority.
14
(4) The delegation continues in force despite a change in the
15
membership of the Authority.
16
(5) The delegation may be varied or revoked by the Authority
17
(whether or not there has been a change in the membership of the
18
Authority).
19
50 Delegation by Secretary
20
(1) The Secretary may, in writing, delegate to an SES employee or an
21
acting SES employee in the Department the Secretary's functions
22
or powers under the following provisions:
23
(a) section 36 (arrangements relating to staff of the Department);
24
(b) section 37 (consultants).
25
Note:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
26
provisions relating to delegations.
27
(2) Despite subsection (1), the Secretary's functions or powers under
28
section 36 cannot be delegated to a staff member.
29
(3) A delegate must not perform a function, or exercise a power,
30
delegated under subsection (1) if the delegate is the Departmental
31
member.
32
Miscellaneous
Part 5
Section 51
No. , 2021
Financial Regulator Assessment Authority Bill 2021
31
(4) In performing a function, or exercising a power, delegated under
1
subsection (1), the delegate must comply with any written
2
directions of the Secretary.
3
51 Rules
4
(1) The Minister may, by legislative instrument, make rules
5
prescribing matters:
6
(a) required or permitted by this Act to be prescribed by the
7
rules; or
8
(b) necessary or convenient to be prescribed for carrying out or
9
giving effect to this Act.
10
(2) To avoid doubt, the rules may not do the following:
11
(a) create an offence or civil penalty;
12
(b) provide powers of:
13
(i) arrest or detention; or
14
(ii) entry, search or seizure;
15
(c) impose a tax;
16
(d) set an amount to be appropriated from the Consolidated
17
Revenue Fund under an appropriation in this Act;
18
(e) directly amend the text of this Act.
19