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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Financial
Sector Legislation Amendment Bill (No. 1)
2000
No. ,
2000
(Treasury)
A Bill
for an Act to amend laws in connection with the reform of the financial sector,
and for related purposes
ISBN: 0642
434883
Contents
Part 1—Amendments relating to
enforcement 13
Part 2—Amendments relating to application of Criminal
Code 24
Division 1—Substantive
amendments 24
Division 2—Technical
amendments 36
Australian Prudential Regulation Authority Act
1998 40
Financial Corporations Act
1974 40
Financial Sector Reform (Amendments and Transitional Provisions) Act
(No. 1)
1999 40
Retirement Savings Accounts Act
1997 40
Superannuation (Resolution of Complaints) Act
1993 41
A Bill for an Act to amend laws in connection with the
reform of the financial sector, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Financial Sector Legislation Amendment
Act (No. 1) 2000.
(1) Subject to subsection (2), this Act commences on the 28th day
after the day on which it receives the Royal Assent.
(2) Item 21 of Schedule 1 commences on the day on which this Act
receives the Royal Assent.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
(1) APRA is taken to have had the function of providing actuarial services
for the period commencing on 1 July 1998 and ceasing at the end of the day
on which the Australian Government Actuary ceases to be a part of
APRA.
(2) Subsection (1) does not mean that APRA did not or does not have
the power to provide actuarial services that are incidental to another function
of APRA.
(3) Subsection (1) confers functions and powers to the extent to
which they are not in excess of the legislative power of the
Commonwealth.
(4) In this section:
APRA means the Australian Prudential Regulation Authority
established by section 7 of the Australian Prudential Regulation
Authority Act 1998.
(1) If:
(a) apart from this section, the operation of section 4 would result
in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay to the person compensation of a
reasonable amount as agreed on between the Commonwealth and the person. If the
Commonwealth and the person do not agree on the amount of the compensation, the
person may institute proceedings in the Federal Court of Australia for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(2) Any damages or compensation recovered or other remedy given in a
proceeding that is commenced otherwise than under this section is to be taken
into account in assessing compensation payable in a proceeding that is commenced
under this section and that arises out of the same event or
transaction.
(3) In this section:
acquisition of property and just terms have the
same respective meanings as in paragraph 51(xxxi) of the
Constitution.
1 After paragraph
11CA(1)(a)
Insert:
(aa) the body corporate is likely to contravene a prudential regulation or
a prudential standard, and such a contravention is likely to give rise to a
prudential risk; or
2 After paragraph
11CA(1)(c)
Insert:
; or (d) the body corporate is conducting its affairs in an improper or in
a financially unsound way.
3 At the end of subsection
11CA(6)
Add “, and the affairs of a body corporate include
those set out in section 53 of that Law.
4 At the end of subsection
13(1)
Add:
The requirement to supply information may include a requirement to supply
books, accounts or documents.
5 Subsection 13(4)
Repeal the subsection, substitute:
APRA’s power to investigate or appoint an investigator if
information etc. not provided
(4) APRA may investigate the affairs of an ADI, or appoint a person to do
so, if the ADI fails to comply with a requirement to provide information, books,
accounts or documents under this section.
6 Subsection 13A(1)
After “APRA may”, insert “investigate the affairs of an
ADI,”.
Note: The heading to subsection 13A(1) is altered by
omitting “or control” and substituting “, or
investigation or control”.
7 Subsection 13B(1)
Omit “A person appointed by APRA to investigate”, substitute
“An investigator of”.
8 Subsection 13B(1)
Omit “person”, substitute “investigator”.
9 Paragraph 13B(1A)(a)
Repeal the paragraph.
10 Subparagraph
13B(1A)(b)(i)
Omit “person”, substitute “investigator”.
11 At the end of subsection
62(1)
Add:
The requirement to supply information may include a requirement to supply
books, accounts or documents.
12 At the end of paragraph
62(1A)(a)
Add “, books, accounts or documents”.
13 Subsection 62(2)
After “information” (first occurring), insert “, books,
accounts or documents”.
14 Subsection 62(2)
Omit “information is”, substitute “information, books,
accounts or documents are”.
15 Subsections 62(3) and
(4)
After “information” (wherever occurring), insert “,
books, accounts or documents”.
16 Subsection 62(4)
Omit “is not admissible”, substitute “is not, or are not,
admissible”.
17 Subsection 63(5)
After “this section”, insert “and
section 64”.
18 After section 63
Insert:
(1) The Treasurer’s consent under subsection 63(1) is subject to the
conditions (if any) imposed by the Treasurer on the consent.
(2) The Treasurer may, by written notice given to the person who has been
given the consent:
(a) impose conditions, or further conditions, on the consent; or
(b) revoke or vary any condition imposed on the consent; or
(c) revoke the consent if the Treasurer is satisfied that there has been a
contravention of a condition to which the consent is subject.
(3) The Treasurer’s powers under subsection (2) may be
exercised on the Treasurer’s own initiative. The Treasurer’s powers
under paragraph (2)(a) or (b) may be exercised on application made to the
Treasurer by the person who has been given the consent.
19 Application of new
section 64
Section 64 of the Banking Act 1959 does not apply to a consent
given before the commencement of that section.
20 After section 65
Insert:
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage, in
conduct that constituted, constitutes or would constitute:
(a) a contravention of a provision of section 7, 8, 66, 66A or 67, or
a condition imposed under section 64; or
(b) attempting to contravene the provision or condition; or
(c) aiding, abetting, counselling or procuring a person to contravene the
provision or condition; or
(d) inducing or attempting to induce, whether by threats, promises or
otherwise, a person to contravene the provision or condition; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of the provision or condition;
or
(f) conspiring with others to contravene the provision or
condition;
the Federal Court of Australia may grant an injunction in accordance with
subsection (2).
(2) The injunction:
(a) may restrain the person from engaging in the conduct; and
(b) may also require that person to do a particular act or thing, if the
Court thinks it desirable to do so.
The Court may grant the injunction on such terms as it thinks
appropriate.
(3) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent danger of substantial damage to
any other person if the person engages in conduct of that kind.
Performance injunctions
(4) If a person has refused or failed, is refusing or failing, or is
proposing to refuse or fail, to do an act or thing that the person is
required:
(a) by a provision of section 7, 8, 66, 66A or 67 to do; or
(b) by a condition on a consent given under subsection 63(1);
the Court may grant an injunction requiring the person to do that act or
thing. It may grant the injunction on such terms as the Court thinks
appropriate.
(5) The power of the Court to grant an injunction requiring a person to do
an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any other person if the person refuses or fails to do that act or
thing.
Who may apply for an injunction
(6) The Court may only grant an injunction on the application
of:
(a) APRA—in all cases; or
(b) the Treasurer—in the case of a contravention of a condition
imposed under section 64; or
(c) ASIC or a member of the ADI—in the case of a contravention of a
condition imposed under section 64 that has been imposed in relation to a
demutualisation of an ADI.
In this subsection, demutualisation has the same meaning as
in section 63.
Consent injunctions
(7) If an application for an injunction under subsection (1) or (4)
has been made, the Court may, if the Court thinks it appropriate, grant an
injunction by consent of all the parties to the proceedings, whether or not the
Court is satisfied that the subsection applies.
Interim injunctions
(8) The Court may grant an interim injunction pending determination of an
application under subsection (1).
Variation or discharge of injunctions
(9) The Court may discharge or vary an injunction granted under
subsection (1), (4) or (7).
Damages undertakings
(10) APRA, ASIC and the Treasurer cannot be required, as a condition of
granting an interim injunction, to give an undertaking as to damages.
Damages orders
(11) If the Court has power under this section to grant an injunction
restraining a person from engaging in particular conduct, or requiring a person
to do a particular act or thing, the Court may, either in addition to or in
substitution for the grant of the injunction, order that person to pay damages
to any other person.
(12) The powers conferred on the Court by this section are in addition to
any other of its powers, and do not derogate from its other powers.
21 After subsection 69(11A)
Insert:
(11B) The Treasurer may, by instrument in writing, delegate any of his of
her functions or powers under this section to:
(a) a Commonwealth authority for which the Treasurer is the responsible
Minister; or
(b) a member, or staff member, of such an authority.
In this section, Commonwealth authority and responsible
Minister have the respective meanings given by the Commonwealth
Authorities and Companies Act 1997.
(11C) The reference to the Treasurer in paragraph (3AA)(a) is to be
read as including a reference to the authority or person to whom the Treasurer
has delegated his or her function under subsection (3).
1 Subsection 5(1) (definition of officer of
the Reserve Bank Service)
Repeal the definition.
2 Subsection 5(1) (definition of officer
or officer of the Bank)
Repeal the definition.
3 Subsection 5(1)
Insert:
staff member of the Reserve Bank Service means:
(a) a person appointed by the Bank under section 67; or
(b) a person engaged by the Bank under section 68.
4 Subsection 14(6) (paragraph (a) of the
definition of official)
Repeal the paragraph, substitute:
(a) a staff member of the Reserve Bank Service; or
5 Subsection 25B(1)
Omit “an officer”, substitute “a staff
member”.
6 Paragraph 25L(1)(b)
Omit “an officer”, substitute “a staff
member”.
7 Subsection 37(1)
Omit “an officer of the Bank”, substitute “a staff member
of the Reserve Bank Service”.
8 Sections 66 to 69
Repeal the sections, substitute:
The persons appointed, engaged or assisting the Bank under this Part
constitute the Reserve Bank Service.
(1) The Bank may appoint such staff as the Bank considers necessary for
the performance of its functions.
(2) The terms and conditions of appointment (including as to remuneration)
are to be determined by the Bank.
(1) The Bank may engage consultants, or other people, that are suitably
qualified to provide advice to it or perform services for it.
(2) The terms and conditions of engagement (including as to remuneration)
are to be determined by the Bank.
9 Transitional provision for staff of the
Reserve Bank
(1) A person appointed as an officer or a temporary or casual employee
under Part VII of the Reserve Bank Act 1959 as in force immediately
before the commencement of this item and whose appointment is in force
immediately before that commencement, is taken to have been appointed as a
member of the Reserve Bank Service under section 67 of that Act as in force
immediately after the commencement of this item.
(2) The rights and entitlements of a person covered by subitem (1) are
not affected merely because they cease to be appointed under Part VII of
the Reserve Bank Act 1959 as in force immediately before the commencement
of this item and are taken to have been appointed under section 67 of that
Act as in force immediately after the commencement of this item.
10 Sections 71 and 73
Repeal the sections.
11 Subsection 79A(1) (paragraphs (b) and
(c) of the definition of officer)
Repeal the paragraphs, substitute:
(b) a staff member of the Reserve Bank Service; or
12 Paragraph 79A(5)(b)
Omit “an officer of the Reserve Bank”, substitute “a
staff member of the Reserve Bank Service”.
13 Paragraphs 79A(6)(b) and
(c)
Repeal the paragraphs, substitute:
(b) a staff member of the Reserve Bank Service;
14 Subsection 79B(1)
Omit “an officer, agent or other person carrying on any business of
the Reserve Bank”, substitute “a staff member of the Reserve Bank
Service, or an agent or other person carrying on any business of the Reserve
Bank,”.
Part 1—Amendments
relating to enforcement
1 Subparagraph 6(1)(e)(iv)
Omit “(other than sections 126B to 126F)”.
2 Subsection 10(1) (paragraph (b) of the
definition of approved guarantee)
Repeal the paragraph.
3 Subsection 10(1) (definition of approved
non-ADI financial institution)
Repeal the definition.
4 Subsection 10(1) (paragraphs (m) and (n)
of the definition of reviewable decision)
Repeal the paragraphs, substitute:
(m) a decision of APRA under section 92 refusing to grant an
arrangement approval or a trustee’s subsection 92(5) approval;
or
(n) a decision of APRA under section 92 revoking an arrangement
approval or a trustee’s subsection 92(5) approval; or
5 Subsection 10(1) (after paragraph (p) of
the definition of reviewable decision)
Insert:
(pa) a decision of the Regulator under subsection 120A(1), (2) or (3) to
disqualify an individual; or
(pb) a decision of the Regulator under subsection 120A(5) refusing to
revoke the disqualification of an individual; or
6 Subsection 10(1) (paragraphs (r), (ra)
and (rb) of the definition of reviewable decision)
Omit “APRA”, substitute “the Regulator”.
7 Paragraph 71(1)(ba)
Repeal the paragraph.
8 At the end of subsection
92(4)
Add:
; or (c) an arrangement in relation to the management and control of the
fund that:
(i) has been agreed to between a majority of the members of the fund and
the employer, or employers, of those members; and
(ii) is approved by APRA in writing.
9 After subsection 92(4)
Insert:
Arrangement approval
(4A) When deciding whether or not to approve an arrangement under
subparagraph (4)(c)(ii), APRA must have regard to any written guidelines
determined by APRA under this subsection.
(4B) The approval of the arrangement given under
subparagraph (4)(c)(ii) (the arrangement approval):
(a) is subject to the conditions set out in the approval (if any);
and
(b) may be revoked by APRA by written notice given to the
trustee.
(4C) Without limiting paragraph (4B)(b), APRA may revoke an
arrangement approval if:
(a) APRA is satisfied that there has been a contravention of a condition
to which the approval is subject; or
(b) the trustee applies in writing for its revocation.
(4D) APRA may vary or revoke the conditions of the arrangement approval by
written notice given to the trustee.
10 Paragraph 92(5)(a)
Repeal the paragraph, substitute:
(a) there is a single trustee of the fund who is a constitutional
corporation; and
11 Paragraph 92(5)(c)
Repeal the paragraph, substitute:
(c) the trustee is an approved trustee (under section 26);
and
(ca) the trustee’s approval specifies that the trustee is also
approved for the purposes of this subsection, either generally or in relation to
the fund or a class of funds to which the fund belongs; and
12 Subsections 92(6), (7), (8), (9), (10), (11)
and (12)
Repeal the subsections, substitute:
Trustee’s subsection 92(5) approval
(6) When deciding whether or not to specify in a trustee’s approval
(under section 26) that the trustee is also approved for the purposes of
subsection 92(5), APRA must have regard to any written guidelines determined by
APRA under this subsection.
(7) The approval of the trustee for the purposes of subsection 92(5) (the
trustee’s subsection 92(5) approval):
(a) is subject to the conditions set out in the approval (if any);
and
(b) may be revoked by APRA by written notice given to the
trustee.
(8) Without limiting paragraph (7)(b), APRA may revoke a
trustee’s subsection 92(5) approval if:
(a) APRA is satisfied that there has been a contravention of a condition
to which the approval is subject; or
(b) the trustee applies in writing for its revocation.
(9) For the purposes of sections 27A, 27B, 27C, 27D, 27E and 29, the
trustee’s subsection 92(5) approval and any conditions to which it is
subject are to be treated as conditions to which the trustee’s approval
under section 26 is subject.
13 At the end of subsection
120(1)
Add:
; or (c) the Regulator has disqualified the individual under
section 120A.
14 After section 120
Insert:
(1) The Regulator may disqualify an individual if satisfied
that:
(a) the person has contravened this Act on one or more occasions (whether
before or after the commencement of this section); and
(b) the nature or seriousness of the contravention or contraventions, or
the number of contraventions, provides grounds for disqualifying the
individual.
(2) The Regulator may disqualify an individual who is, or was (including
before the commencement of this section), a responsible officer of a trustee,
investment manager or custodian (the body corporate) if satisfied
that:
(a) the body corporate has contravened this Act on one or more occasions
(whether before or after the commencement of this section); and
(b) at the time of one or more of the contraventions, the individual was a
responsible officer of the body corporate; and
(c) in respect of the contravention or contraventions that occurred while
the individual was a responsible officer of the body corporate—the nature
or seriousness of it or them, or the number of them, provides grounds for the
disqualification of the individual.
(3) The Regulator may disqualify an individual if satisfied that the
individual is otherwise not a fit and proper person to be a trustee, investment
manager or custodian, or a responsible officer of a body corporate that is a
trustee, investment manager or custodian.
(4) A disqualification takes effect on the day on which it is
made.
(5) The Regulator may revoke a disqualification on application by the
disqualified individual or on its own initiative. A revocation takes effect on
the day on which it is made.
(6) The Regulator must give the individual written notice of a
disqualification, revocation of a disqualification or a refusal to revoke a
disqualification.
(7) The Regulator must cause particulars of a notice given under
subsection 120A(6) or 344(6) (result of internal review) to be published in the
Gazette as soon as practicable.
15 Subsections 126(1) and
(2)
Omit “(other than a self managed superannuation
fund)”.
16 Subsections 126A(1) and
(2)
Omit “(other than a self managed superannuation
fund)”.
17 Subsections 126B(1) and
(3)
Omit “APRA” (wherever occurring), substitute “the
Regulator”.
18 Paragraph 126B(3)(e)
Omit “APRA’s”, substitute “the
Regulator’s”.
19 Subsection 126B(4)
Omit “APRA” (first occurring), substitute “The
Regulator”.
20 Subsection 126B(4)
Omit “APRA” (second occurring), substitute “the
Regulator”.
21 Paragraph 126B(6)(b)
Omit “APRA”, substitute “the Regulator”.
22 Subsection 126B(7)
Omit “APRA” (first occurring), substitute “The
Regulator”.
23 Subsection 126B(7)
Omit “APRA” (second occurring), substitute “the
Regulator”.
24 Subsections 126C(1) to
(5)
Omit “APRA” (wherever occurring), substitute “the
Regulator”.
25 At the end of subsection
126D(1)
Add:
Note: APRA’s power under this subsection does not
extend to self managed superannuation funds, see subsection
6(1).
26 After subsection 126D(1)
Insert:
(1A) If, having regard to any of the following:
(a) the offence to which the application relates;
(b) the time that has passed since the applicant committed the
offence;
(c) the applicant’s age when the applicant committed the
offence;
(d) the orders made by the court in relation to the offence;
(e) any other relevant matter;
the Commissioner of Taxation is satisfied that the applicant is highly
unlikely to:
(f) contravene this Act; and
(g) do anything that would result in a self managed superannuation fund
not complying with this Act;
the Commissioner must, by notice in writing given to the applicant, make a
declaration waiving the applicant’s status as a disqualified person for
the purposes of this Part.
Note: The Commissioner’s power under this subsection
only extends to self managed superannuation funds, see subsection
6(1).
27 Subsections 126D(3) and
(4)
Omit “APRA” (wherever occurring), substitute “the
Regulator”.
28 Paragraphs 126E(2)(a) and (b) and
(3)(e)
Omit “APRA”, substitute “the Regulator”.
29 Subsection 126F(1)
Omit “APRA” (wherever occurring), substitute “the
Regulator”.
Note: The heading to section 126F is altered by
omitting “APRA’s” and substituting “The
Regulator’s”.
30 Subsections 126F(2) and
(3)
Omit “APRA” (first occurring), substitute “The
Regulator”.
31 Subsections 126F(2) and
(3)
Omit “APRA” (wherever occurring, other than the first
occurrence), substitute “the Regulator”.
32 Subsections 126F(4) and
(5)
Omit “APRA”, substitute “the Regulator”.
33 At the end of
Part 16
Add:
(1) A person is guilty of an offence if:
(a) the person holds themself out as an actuary; and
(b) the person is not an actuary.
Maximum penalty: 50 penalty units.
(2) A person is guilty of an offence if:
(a) the person holds themself out as an approved auditor; and
(b) the person is not an approved auditor.
Maximum penalty: 50 penalty units.
(3) Subsections (1) and (2) are offences of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
34 After section 141
Insert:
(1) This section applies if:
(a) after the commencement of this section, the Regulator makes an order
under subsection 138(1) or (2) vesting the property of a superannuation entity
in an acting trustee; or
(b) the Regulator made such an order before the commencement of this
section and that order is still in force when this section commences.
(2) In this section, the person in whom the property was vested
immediately before the order was made is referred to as the former
trustee.
(3) The former trustee is guilty of an offence:
(a) if paragraph (1)(a) applies—if the former trustee does not,
within 14 days of the order being made, give the acting trustee all books
relating to the entity’s affairs that are in the former trustee’s
possession, custody or control; or
(b) if paragraph (1)(b) applies—if the former trustee does not,
within 14 days of the commencement of this section, give the acting trustee all
books relating to the entity’s affairs that are in the former
trustee’s possession, custody or control.
Maximum penalty: 50 penalty units.
(4) The acting trustee may, by notice in writing to the former trustee,
require the former trustee, so far as the former trustee can do so:
(a) to identify property of the entity; and
(b) to explain how the former trustee has kept account of that
property.
(5) The acting trustee may, by notice in writing to the former trustee,
require the former trustee to take specified action that is necessary to bring
about a transfer of specified property of the entity to the acting
trustee.
(6) The former trustee is guilty of an offence if:
(a) the acting trustee gives the former trustee a notice under
subsection (4) or (5); and
(b) the former trustee does not, within 28 days of the notice being given,
comply with the requirement in the notice.
Maximum penalty: 50 penalty units.
(7) Subsections (3) and (6) are offences of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
35 At the end of
section 253
Add:
; and (d) to authorise the Regulator to accept written undertakings and to
apply to the Court for an order remedying breaches of such
undertakings.
36 After Division 3 of
Part 25
Insert:
(1) The Regulator may accept a written undertaking given by a person in
connection with a matter in relation to which the Regulator has a function or
power under this Act.
(2) The person may withdraw or vary the undertaking at any time, but only
with the Regulator’s consent.
(3) If the Regulator considers that the person who gave the undertaking
has breached any of its terms, the Regulator may apply to the Court for an order
under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up
to the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
37 Subparagraph
287(2)(a)(ii)
Omit “or”.
38 Subparagraph
287(2)(a)(iii)
Repeal the subparagraph.
39 Paragraphs 287(2)(a) and
(b)
Omit “, signing the record, or production of the book”,
substitute “or signing the record”.
40 Paragraph 287(3)(b)
Omit “or produced the book, as the case may be”.
41 Paragraph 287(3)(c)
Repeal the paragraph.
42 Application provisions for immunities
relating to production of books
(1) Subsections 287(2) and (3) of the Superannuation Industry
(Supervision) Act 1993, as in force after the commencement of item 39,
apply in relation to a requirement made, as mentioned in paragraph 287(2)(a) of
that Act as so in force, on or after that commencement.
(2) Subsections 287(2) and (3) of the Superannuation Industry
(Supervision) Act 1993, as in force before that commencement, continue to
apply in relation to a requirement made, as mentioned in paragraph 287(2)(a) of
that Act as so in force, before that commencement.
43 After section 324
Insert:
Despite anything in any other law, proceedings for an offence against a
provision of this Act may be instituted within the period of 5 years after the
act or omission alleged to constitute the offence or, with the Minister’s
consent, at any later time.
44 Subsection 344(12)
After “(d),”, insert “(pa), (pb),”.
Part 2—Amendments
relating to application of Criminal Code
Division 1—Substantive
amendments
45 At the end of Division 1 of
Part 1
Add:
(1) Chapter 2 of the Criminal Code applies to all offences
against this Act, other than offences against the following
provisions:
(a) subsections 34(2), 68(1), 101(2), 102(4), 129(3B), 129(7), 130(2B),
130(6), 141(2) and 142(3);
(b) section 145;
(c) subsections 152(2) and (3), 153(1) and (2), 157(1), 157A(2) and
158(1);
(d) section 161;
(e) subsections 163(1), 184(1), 202(1), 278(3) and 282(2);
(f) section 285;
(g) subsection 288(4);
(h) sections 306, 307 and 308;
(i) subsections 313(12), 314(4), 357(5), 359(5), 361(7), 363(6), 364(4)
and 366(8).
(2) Sections 17 and 338 do not apply in relation to an offence
against this Act to which the Criminal Code applies.
46 Subsection 36(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
47 Subsection 36A(7)
Repeal the subsection, substitute:
(7) A person is guilty of an offence if the person contravenes this
section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
48 Subsection 64(3)
Repeal the subsection, substitute:
(3) The employer is guilty of an offence if the employer contravenes
subsection (2).
Maximum penalty: 100 penalty units.
(3A) The employer is guilty of an offence if the employer contravenes
subsection (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
49 Subsection 103(3)
Repeal the subsection, substitute:
(3) A person is guilty of an offence if the person contravenes
subsection (1), (2) or (2A). This is an offence of strict
liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
50 Subsection 104(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
51 Subsection 105(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
52 Subsection 107(3)
Repeal the subsection, substitute:
(3) The trustee is guilty of an offence if the trustee contravenes
subsection (2).
Maximum penalty: 100 penalty units.
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
53 Subsection 108(3)
Repeal the subsection, substitute:
(3) The trustee is guilty of an offence if the trustee contravenes
subsection (2).
Maximum penalty: 100 penalty units.
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
54 Subsection 111(3)
Repeal the subsection, substitute:
(3) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (2).
Maximum penalty: 100 penalty units.
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
55 Subsection 112(5)
Repeal the subsection, substitute:
(5) A person is guilty of an offence if the person contravenes this
section.
Maximum penalty: 100 penalty units.
(6) A person is guilty of an offence if the person contravenes this
section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
56 Subsections 113(1) and
(2)
Repeal the subsections, substitute:
(1) For each year of income, the trustee of a superannuation entity must
appoint an approved auditor to give the trustee a report, in the approved form,
of the operations of the entity for that year. The appointment must be made
within whichever of the periods set out in the regulations that apply to the
entity.
(1A) The trustee must give to the auditor any document that the auditor
requests, in writing, be given to him or her. The trustee must do so within 14
days of the request. Only documents that are relevant to the preparation of the
report may be requested.
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (1A).
Maximum penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
(2A) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (1A). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
57 Subsections 113(4) and
(5)
Repeal the subsections, substitute:
(4) The auditor must give the report to the trustee within the specified
period after the end of the year of income. The period is specified in the
regulations.
(5) The auditor is guilty of an offence if the auditor contravenes
subsection (4).
Maximum penalty: Imprisonment for 6 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
(6) The auditor is guilty of an offence if the auditor contravenes
subsection (4). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
58 Subsection 122(2)
Repeal the subsection, substitute:
(2) The investment manager is guilty of an offence if the investment
manager contravenes subsection (1). This is an offence of strict
liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
59 Subsection 124(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
60 Subsection 154(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1).
Maximum penalty: 100 penalty units.
(2A) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
61 Subsection 169(3)
Repeal the subsection, substitute:
(3) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (2).
Maximum penalty: Imprisonment for 1 year.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (1) or (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
62 Subsections 184(2) and
(3)
Repeal the subsections, substitute:
Defences
(2) Subsection (1) does not apply if the defendant proves that one of
the exceptions to the insider trading rules in sections 180 to 183 apply to
the defendant.
(3) In the case of the defendant having entered into, or procured another
person to enter into, a transaction or agreement at a time when certain
information was in the defendant’s possession, subsection (1) does
not apply if the defendant proves that:
(a) the information came into the defendant’s possession solely as a
result of the information having been made known in a way that would, or would
be likely to, bring it to the attention of persons who commonly invest in
superannuation interests of a kind whose price or value might be affected by the
information; or
(b) the other party to the transaction or agreement knew, or ought
reasonably to have known, of the information before entering into the
transaction or agreement.
63 Subsection 254(4)
Repeal the subsection, substitute:
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
64 At the end of
section 257
Add:
(2) The trustee must give a copy of the notice to the individual or to
each member of the committee (whichever is relevant) within 3 days of the
appointment of the individual or member.
65 Subsection 260(2)
Repeal the subsection, substitute:
(2) A person appointed to investigate and make a report under subsection
257(1) (whether as an individual or as a member of a committee) is guilty of an
offence if the report is not given to APRA:
(a) before the expiry of the deadline; or
(b) within such further time as APRA, by written notice, allows.
Maximum penalty: 100 penalty units.
(3) A person appointed to investigate and make a report under subsection
257(1) (whether as an individual or as a member of a committee) is guilty of an
offence if the report is not given to APRA:
(a) before the expiry of the deadline; or
(b) within such further time as APRA, by written notice, allows.
This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
66 Section 262
Repeal the section, substitute:
(1) The trustee is guilty of an offence if the trustee contravenes a
requirement imposed on the trustee by or under section 257, 258 or
259.
Maximum penalty: 100 penalty units.
(2) The trustee is guilty of an offence if the trustee contravenes a
requirement imposed on the trustee by or under section 257, 258 or 259.
This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
67 Subsection 299C(3)
Repeal the subsection, substitute:
(3) The employer is guilty of an offence if the employer contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
68 Subsection 299F(4)
Repeal the subsection, substitute:
(4) The trustee is guilty of an offence if the trustee contravenes the
requirement to make the request.
Maximum penalty: 100 penalty units.
(4A) The trustee is guilty of an offence if the trustee contravenes the
requirement to make the request. This is an offence of strict
liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
69 Subsection 299G(4)
Repeal the subsection, substitute:
(4) The trustee is guilty of an offence if the trustee contravenes the
requirement to make the request.
Maximum penalty: 100 penalty units.
(4A) The trustee is guilty of an offence if the trustee contravenes the
requirement to make the request. This is an offence of strict
liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
70 Subsection 299H(6)
Repeal the subsection, substitute:
(6) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section.
Maximum penalty: 100 penalty units.
(7) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
71 Subsection 299J(6)
Repeal the subsection, substitute:
(6) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section.
Maximum penalty: 100 penalty units.
(7) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
72 Subsection 299K(6)
Repeal the subsection, substitute:
(6) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section.
Maximum penalty: 100 penalty units.
(7) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
73 Subsection 299L(6)
Repeal the subsection, substitute:
(6) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section.
Maximum penalty: 100 penalty units.
(7) The trustee is guilty of an offence if the trustee contravenes a
requirement of this section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
74 Subsection 299M(4)
Repeal the subsection, substitute:
(4) The trustee is guilty of an offence if the trustee contravenes
subsection (2).
Maximum penalty: 100 penalty units.
(5) The trustee is guilty of an offence if the trustee contravenes
subsection (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
75 Subsection 299Y(2)
Repeal the subsection, substitute:
(2) The trustee is guilty of an offence if the trustee contravenes
subsection (1).
Maximum penalty: 100 penalty units.
(3) The trustee is guilty of an offence if the trustee contravenes
subsection (1). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
76 Subsection 347A(6)
Repeal the subsection, substitute:
(6) The trustee is guilty of an offence if the trustee contravenes
subsection (5). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
Division 2—Technical
amendments
77 After subsection 18(7B)
Insert:
(7BA) Subsection (7B) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
78 At the end of
section 29
Add:
(4) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
79 After subsection 63(7)
Insert:
(7A) Subsection (7) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
80 After subsection 63(10)
Insert:
(10A) Subsection (10) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
81 At the end of
section 121
Add:
(4) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
82 At the end of subsection
123(1)
Add:
Note: A defendant bears an evidential burden in relation to
the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the
Criminal Code).
83 At the end of
section 123
Add:
(6) Subsections (4) and (5) are offences of strict
liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
84 After subsection 140(3)
Insert:
(3A) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
85 At the end of subsection
163(1)
Add:
Note: A defendant bears an evidential burden in relation to
the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the
Criminal Code).
86 At the end of
section 163
Add:
(3) Subsection (2) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
87 After subsection 201(4)
Insert:
(4A) Paragraph (4)(a) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
88 At the end of
section 265
Add:
(4) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
89 After subsection 303(1)
Insert:
(1A) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
90 At the end of subsection
303(2)
Add:
Note: A defendant bears a legal burden in relation to the
matters in subsection (2) (see section 13.4 of the Criminal
Code).
91 After subsection 331(1)
Insert:
(1A) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
92 After subsection 377(3)
Insert:
(3A) Subsection (3) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: For strict liability, see
section 6.1 of the Criminal Code.
Australian Prudential
Regulation Authority Act 1998
1 Subsection 3(1) (definition of officer of
the Reserve Bank Service)
Omit “an officer”, substitute “a person”.
Financial Corporations Act
1974
2 Paragraph 22A(1)(b)
Omit “a member”, substitute “a staff
member”.
3 Subsection 22A(6) (definition of Reserve
Bank Service)
Omit “subsection 66(2)”, substitute
“section 66”.
Financial Sector Reform
(Amendments and Transitional Provisions) Act (No. 1)
1999
4 Paragraph 3(2)(e)
Omit “subsections (12), (14) and (15)”, substitute
“subsection (12)”.
5 Subsections 3(14) and
(15)
Repeal the subsections.
Note: These subsections have become redundant because the
conditions for their operation have failed.
Retirement Savings
Accounts Act 1997
6 At the end of
section 8
Add:
(2) However, an RSA, or retirement savings
account, can only be provided by a life insurance company as a policy.
Note: Section 16 provides that policy has
the same meaning as in the Life Insurance Act 1995.
Superannuation (Resolution
of Complaints) Act 1993
7 Subsection 7(1)
Omit “nor more than 10”.