Commonwealth of Australia Bills

[Index] [Search] [Download] [Related Items] [Help]

This is a Bill, not an Act. For current law, see the Acts databases.

FINANCIAL SECTOR LEGISLATION AMENDMENT (ENHANCING SUPERVISION AND ENFORCEMENT) BILL 2009

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Financial Sector Legislation Amendment
(Enhancing Supervision and
Enforcement) Bill 2009
No. , 2009
(Treasury)
A Bill for an Act to amend the law relating to
banking, insurance and superannuation, and for
related purposes
i Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill
2009 No. , 2009
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Non-operating holding companies of life insurers
3
Part 1--Main amendments
3
Life Insurance Act 1995
3
Part 2--Consequential amendments
31
Australian Prudential Regulation Authority Act 1998
31
Authorised Non-operating Holding Companies Supervisory Levy
Imposition Act 1998
31
Corporations Act 2001
32
Financial Institutions Supervisory Levies Collection Act 1998
33
Financial Sector (Business Transfer and Group Restructure) Act 1999
33
Financial Sector (Collection of Data) Act 2001
33
Financial Sector (Shareholdings) Act 1998
33
First Home Saver Accounts Act 2008
33
Income Tax Assessment Act 1936
34
Income Tax Assessment Act 1997
34
Insurance Acquisitions and Takeovers Act 1991
34
Insurance Act 1973
35
Life Insurance Supervisory Levy Imposition Act 1998
35
Pooled Development Funds Act 1992
35
Retirement Savings Accounts Act 1997
35
Social Security Act 1991
35
Superannuation Industry (Supervision) Act 1993
35
Superannuation (Unclaimed Money and Lost Members) Act 1999
36
Veterans' Entitlements Act 1986
36
Schedule 2--Injunctions
37
Part 1--Banking Act 1959
37
Part 2--Insurance Act 1973
38
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 ii
Part 3--Life Insurance Act 1995
41
Part 4--Superannuation Industry (Supervision) Act 1993
44
Part 5--First Home Saver Accounts Act 2008
45
Part 6--Application
46
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 1
A Bill for an Act to amend the law relating to
1
banking, insurance and superannuation, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Financial Sector Legislation
6
Amendment (Enhancing Supervision and Enforcement) Act 2009.
7
2 Commence ment
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill
2009 No. , 2009
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
3. Schedule 2
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 3
1
Schedule 1
--
Non-operating holding
2
companies of life insurers
3
Part 1
--
Main amendments
4
Life Insurance Act 1995
5
1 Section 4
6
Before "Without", insert "(1)".
7
2 Section 4
8
Omit "section", substitute "subsection".
9
3 At the end of section 4
10
Add:
11
(2) Without prejudice to its effect apart from this subsection, this Act
12
also has the effect it would have if each reference to a subsidiary of
13
a life company were, by express provision, confined to such a
14
subsidiary that:
15
(a) is a corporation to which paragraph 51(xx) of the
16
Constitution applies; or
17
(b) carries on banking with respect to which the Parliament has
18
the power to make laws under paragraph 51(xiii) of the
19
Constitution.
20
(3) Without prejudice to its effect apart from this subsection, this Act
21
also has the effect it would have if each reference to a subsidiary of
22
a registered NOHC were, by express provision, confined to such a
23
subsidiary that:
24
(a) is a corporation to which paragraph 51(xx) of the
25
Constitution applies; or
26
(b) carries on banking with respect to which the Parliament has
27
the power to make laws under paragraph 51(xiii) of the
28
Constitution.
29
4 Paragraphs 12A(4)(e) and 12B(5)(e)
30
Omit "this Act" (wherever occurring), substitute "section 21".
31
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
4 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill
2009 No. , 2009
5 Paragraphs 16(a) and (b)
1
Omit "company", substitute "body corporate".
2
Note:
The heading to section 16 is altered by omitting "companies" and substituting "bodies
3
corporate".
4
6 Paragraph 16ZD(1)(d)
5
Omit "this Act", substitute "section 21".
6
7 Part 3 (heading)
7
Repeal the heading, substitute:
8
Part 3--Registration of life companies and their
9
NOHCs
10
Division 1--Registration of life companies
11
8 Subsection 17(1)
12
Omit "this Act", substitute "section 21".
13
9 Paragraph 17(2)(a)
14
Omit "this Act", substitute "section 21".
15
10 Subsection 17(4)
16
Omit "this Act", substitute "section 21".
17
11 Subsection 20(1)
18
Omit "this Act", substitute "section 21".
19
12 Paragraph 21(3)(f)
20
Omit "Act", substitute "section".
21
13 At the end of subsection 21(3)
22
Add:
23
; (h) that the company is a subsidiary of a NOHC that is not a
24
registered NOHC.
25
14 Application
26
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 5
The amendments of section 21 of the Life Insurance Act 1995 made by
1
this Part apply in relation to applications made before, on or after the
2
commencement of the amendments for registration.
3
15 After subsection 22(1)
4
Insert:
5
(1A) Without limiting the conditions that APRA may impose on the
6
registration, APRA may make the registration conditional on a
7
body corporate, of which the company is a subsidiary, being a
8
registered NOHC.
9
16 Application
10
Subsection 22(1A) of the Life Insurance Act 1995 (as amended by this
11
Part) applies in relation to a registration made before, on or after the
12
commencement of that subsection.
13
17 Paragraph 26(1)(a)
14
Omit "this Act", substitute "section 21".
15
18 Subsection 26(2)
16
Omit "the registration of the company under this Act", substitute
17
"(under this section) the registration under section 21 of the company".
18
19 Paragraph 27(1)(a)
19
Omit "this Act", substitute "section 21".
20
20 Subsection 27(1)
21
Omit "the registration of the company under this Act", substitute
22
"(under this section) the registration under section 21 of the company".
23
21 At the end of Part 3
24
Add:
25
Division 2--Registration of NOHCs of life companies
26
28A Registration as a NOHC
27
(1) A body corporate may apply in writing to APRA for registration
28
under this section (the NOHC registration). The NOHC
29
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
6 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill
2009 No. , 2009
registration operates in relation to the body corporate and any life
1
companies that are subsidiaries of the body corporate from time to
2
time.
3
Note:
The body corporate may want the registration because APRA may
4
refuse to register a subsidiary of the body corporate under Division 1
5
unless the body corporate is registered under this section (see
6
subsection 21(3)).
7
(2) APRA may require the body corporate to provide a statutory
8
declaration in relation to information or documents provided in
9
relation to the application.
10
(3) APRA may register an applicant if it considers it is appropriate to
11
do so. The registration must be in writing.
12
(4) If APRA registers an applicant, APRA must give written notice to
13
the applicant.
14
(5) The taking of an action is not invalid merely because of a failure to
15
comply with subsection (4).
16
28B Conditions on a NOHC registration
17
(1) APRA may, at any time, by giving written notice to a registered
18
NOHC:
19
(a) impose conditions, or additional conditions, on the NOHC
20
registration; and
21
(b) vary or revoke conditions imposed on the NOHC registration.
22
(2) A condition may be expressed to have effect despite anything in
23
the prudential standards.
24
(3) If APRA imposes, varies or revokes the conditions on a NOHC
25
registration, APRA must give written notice to the registered
26
NOHC.
27
(4) The taking of an action is not invalid merely because of a failure to
28
comply with subsection (3).
29
28C When APRA may revoke a NOHC registration
30
(1) APRA may revoke a NOHC registration if APRA is satisfied that:
31
(a) the registered NOHC has failed to comply with:
32
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 7
(i) a requirement of this Act or of an instrument made for
1
the purposes of this Act; or
2
(ii) a requirement of the Financial Sector (Collection of
3
Data) Act 2001; or
4
(iii) a direction to the registered NOHC under this Act; or
5
(iv) a condition of the registration; or
6
(b) it would be contrary to the public interest for the registration
7
to remain in force; or
8
(c) the registered NOHC has failed to pay:
9
(i) an amount of levy or late penalty to which the Financial
10
Institutions Supervisory Levies Collection Act 1998
11
applies; or
12
(ii) an amount of charge fixed under section 51 of the
13
Australian Prudential Regulation Authority Act 1998; or
14
(d) it would be contrary to the interests of the policy owners of
15
any life company that is a subsidiary of the registered NOHC
16
for the registration to remain in force; or
17
(e) the registered NOHC has ceased to be a NOHC of any life
18
company.
19
(2) Before revoking a NOHC registration, APRA must give written
20
notice to the registered NOHC advising it that:
21
(a) APRA is considering revoking the registration for the reasons
22
specified; and
23
(b) the registered NOHC may make submissions about the
24
revocation to APRA, in accordance with the notice, by a
25
specified date (which must be at least 90 days after the notice
26
is given).
27
APRA must consider any submissions made by the registered
28
NOHC by that date.
29
(3) APRA may decide that subsection (2) does not apply if APRA is
30
satisfied that complying with that subsection could result in a delay
31
in revocation that would be:
32
(a) contrary to the public interest; or
33
(b) contrary to the interests of the policy owners of any life
34
company that is a subsidiary of the registered NOHC
35
concerned.
36
(4) If APRA revokes a body corporate's NOHC registration, APRA
37
must give written notice to the body corporate.
38
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
8 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill
2009 No. , 2009
(5) Revocation under this section of the registration of a body
1
corporate takes effect at the end of 7 days after APRA gives the
2
body written notice of the revocation.
3
28D When APRA must revoke a NOHC registration
4
(1) APRA must revoke a body corporate's NOHC registration if:
5
(a) the body corporate asks (in writing) APRA to do so; and
6
(b) APRA is satisfied that revoking the registration would not be
7
contrary to either:
8
(i) the public interest; or
9
(ii) the interests of the policy owners of any life company
10
that is a subsidiary of the body corporate.
11
(2) If APRA revokes a body corporate's NOHC registration, APRA
12
must give written notice to the body.
13
(3) Revocation under this section of the registration of a body
14
corporate takes effect when APRA gives the body written notice of
15
the revocation.
16
22 Part 6 (heading)
17
Repeal the heading, substitute:
18
Part 6--Financial management of life companies
19
etc.
20
23 Subsection 88(1)
21
Omit "a life company", substitute "a body corporate that is a life
22
company, registered NOHC or subsidiary of a life company or
23
registered NOHC".
24
Note:
The heading to section 88 is replaced by the heading "Obligations of auditors of
25
certain bodies to report to bodies and APRA".
26
24 Subsection 88(1)
27
Omit "of the company" (wherever occurring), substitute "of the body".
28
25 Subsection 88(1)
29
Omit "taken by the company", substitute "taken by the body".
30
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 9
26 Paragraph 88(1)(b)
1
Omit "company", substitute "body, if it is a life company, or by a life
2
company that is related to the body".
3
27 Subsection 88(2)
4
Omit "a life company", substitute "a body corporate that is a life
5
company, registered NOHC or subsidiary of a life company or
6
registered NOHC".
7
28 Paragraph 88(2)(a)
8
Omit "the company" (wherever occurring), substitute "the body".
9
29 Paragraph 88(2)(b)
10
Omit "company", substitute "body, if it is a life company, or by a life
11
company that is related to the body".
12
30 Subsection 88(2A)
13
Omit "a life company", substitute "a body corporate that is a life
14
company, registered NOHC or subsidiary of a life company or
15
registered NOHC".
16
31 Paragraph 88(2A)(a)
17
Omit "life company" (wherever occurring), substitute "body".
18
32 Paragraph 88(2B)(a)
19
Omit "a life company", substitute "a body corporate that is a life
20
company, registered NOHC or subsidiary of a life company or
21
registered NOHC".
22
33 Subparagraph 88(2B)(b)(i)
23
Omit "life company" (wherever occurring), substitute "body".
24
34 Subparagraph 88(2B)(b)(ii)
25
Omit "company", substitute "body, if it is a life company, or by a life
26
company that is related to the body".
27
35 Paragraphs 88(2B)(c) and (d)
28
Omit "life company" (wherever occurring), substitute "body".
29
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
10 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
36 Paragraph 88(3)(a)
1
Omit "a life company", substitute "a body corporate that is a life
2
company, registered NOHC or subsidiary of a life company or
3
registered NOHC".
4
37 Paragraph 88(3)(a)
5
Omit "of the company" (wherever occurring), substitute "of the body".
6
38 Paragraph 88(3)(a)
7
Omit "taken by the company", substitute "taken by the body".
8
39 Subparagraph 88(3)(a)(ii)
9
Omit "company", substitute "body, if it is a life company, or by a life
10
company that is related to the body".
11
40 Paragraph 88(4)(b)
12
Omit "life company", substitute "body".
13
41 Subsection 88(4)
14
Omit "company" (last occurring), substitute "body".
15
42 Subsection 88A(1)
16
Omit "a life company", substitute "a body corporate that is or was a life
17
company, a registered NOHC or a subsidiary of a life company or
18
registered NOHC".
19
43 Subsection 88A(1)
20
Omit "the life company", substitute "the body".
21
44 Subsection 89(1)
22
Omit "a life company", substitute "a body corporate that is or was a life
23
company, a registered NOHC or a subsidiary of a life company or
24
registered NOHC".
25
45 Paragraph 89(2)(b)
26
Omit "life company", substitute "body".
27
46 Subsection 125A(1)
28
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 11
Omit "life company", substitute "body corporate that is a life company
1
or a registered NOHC".
2
47 Paragraph 125A(1)(a)
3
Omit "company", substitute "body".
4
48 Paragraph 125A(1)(b)
5
Omit "company", substitute "body, if it is a life company".
6
49 Subparagraph 125A(2)(a)(i)
7
Omit "company", substitute "body".
8
50 Subsections 125A(3), (7) and (9)
9
Omit "life company" (wherever occurring), substitute "body corporate".
10
51 Part 7 (heading)
11
Repeal the heading, substitute:
12
Part 7--Monitoring and investigation of life
13
companies and registered NOHCs
14
52 Subsection 126(1) (definition of officer)
15
Omit "a company", substitute "a body corporate".
16
53 Subsection 126(1) (paragraph (a) of the definition of
17
officer)
18
Omit "company" (first occurring), substitute "body".
19
54 Subsection 126(1) (subparagraph (a)(i) of the definition of
20
officer)
21
Omit "company", substitute "body".
22
55 Subsection 126(1) (subparagraph (a)(ii) of the definition of
23
officer)
24
Omit "company", substitute "body, if it is a life company".
25
56 Subsection 126(1) (subparagraphs (a)(iii) and (iv) of the
26
definition of officer)
27
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
12 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
Omit "company", substitute "body".
1
57 Subsection 126(1) (paragraph (b) of the definition of
2
officer)
3
Omit "company", substitute "body".
4
58 Subsection 126(1) (definition of relevant business)
5
Omit "company" (wherever occurring), substitute "body corporate".
6
59 Subsection 126(1) (definition of relevant person)
7
Omit "a company", substitute "a body corporate".
8
60 Subsection 126(1) (paragraph (a) of the definition of
9
relevant person)
10
Omit "company", substitute "body".
11
61 Subsection 126(1) (paragraph (b) of the definition of
12
relevant person)
13
Omit "company", substitute "body, if it is a life company".
14
62 Subsection 126(1) (paragraph (c) of the definition of
15
relevant person)
16
Omit "company", substitute "body".
17
63 Section 128
18
Omit "company (first company) is associated with another company if
19
the 2 companies", substitute "body corporate (the first body) is
20
associated with another body corporate if the 2 bodies".
21
Note:
The heading to section 128 is altered by omitting "company" and substituting "body
22
corporate".
23
64 Paragraph 128(a)
24
Repeal the paragraph, substitute:
25
(a) the first body carries on life insurance business or is a
26
registered NOHC; or
27
65 Paragraph 128(b)
28
Omit "companies", substitute "bodies".
29
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 13
66 Paragraph 128(b)
1
Omit "company", substitute "body".
2
67 Section 129
3
Omit "companies", substitute "bodies corporate".
4
Note:
The heading to section 129 is altered by omitting "companies" and substituting "bodies
5
corporate".
6
68 Division 2 of Part 7 (heading)
7
Repeal the heading, substitute:
8
Division 2--Monitoring life companies and registered
9
NOHCs
10
69 Section 130
11
Omit "life company", substitute "body corporate that is a life company
12
or registered NOHC".
13
70 Paragraph 130(c)
14
Omit "company", substitute "body".
15
71 Subsection 131(1)
16
Omit "life company a written notice requiring the company", substitute
17
"body corporate that is a life company or a registered NOHC a written
18
notice requiring the body".
19
72 Paragraph 131(1)(a)
20
Omit "company's", substitute "body's".
21
73 Paragraphs 131(1)(b) and (c)
22
Omit "company", substitute "body".
23
74 Subsection 131(2)
24
Omit "company", substitute "body".
25
75 Subsection 131(3)
26
Omit "life company", substitute "body corporate that is a life company
27
or a registered NOHC".
28
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
14 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
76 Subsection 131(4)
1
Omit "company", substitute "body".
2
77 Subsection 132(1)
3
Omit "life company a written notice requiring the company", substitute
4
"body corporate that is a life company or a registered NOHC a written
5
notice requiring the body".
6
78 Subsection 132(1)
7
Omit "company" (last occurring), substitute "body".
8
79 Subsection 132(3)
9
Omit "life company", substitute "body corporate that is a life company
10
or a registered NOHC".
11
80 Subsection 132(4)
12
Omit "company", substitute "body".
13
81 Application
14
The amendments of sections 131 and 132 of the Life Insurance Act
15
1995 made by this Part apply in relation to the giving of a notice on or
16
after the commencement of the amendments.
17
82 Subsections 132A(4) and (5)
18
Repeal the subsections, substitute:
19
Matters requiring notice as soon as practicable
20
(4) If a body corporate that is a life company, registered NOHC or
21
subsidiary of a life company or registered NOHC becomes aware:
22
(a) both:
23
(i) that the body has breached or will breach a provision of
24
this Act (other than a provision to which subsection (1)
25
applies); and
26
(ii) that the breach is or will be significant (see
27
subsection (5)); or
28
(b) of a matter that materially and adversely affects the body's
29
financial position;
30
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 15
the body must give APRA a written report about the breach or
1
matter as soon as practicable, and in any case no later than 10
2
business days, after becoming aware of the breach or matter.
3
(5) For the purposes of subparagraph (4)(a)(ii), a breach of a provision
4
is or will be significant if the breach is or will be significant
5
having regard to one or more of the following:
6
(a) the number or frequency of similar breaches;
7
(b) the impact the breach has or will have on the body
8
corporate's ability to conduct its business;
9
(c) the extent to which the breach indicates that the body
10
corporate's arrangements to ensure compliance with this Act
11
might be inadequate;
12
(d) the actual or potential financial loss arising or that will arise
13
from the breach:
14
(i) to the owners of policies issued by the body corporate,
15
if it is a life company, or by a life company that is
16
related to the body corporate; or
17
(ii) to the body corporate;
18
(e) any matters prescribed by the regulations for the purposes of
19
this paragraph.
20
83 Subsection 132A(6)
21
Omit "A life company", substitute "A body corporate that is a life
22
company, registered NOHC or subsidiary of a life company or
23
registered NOHC".
24
84 Subsection 132A(6)
25
Omit "the life company", substitute "the body".
26
85 Subsection 132A(7)
27
Omit "a life company", substitute "a body corporate".
28
86 Paragraph 132A(7)(a)
29
Omit "or appointed actuary of the life company", substitute "of the
30
body, or its appointed actuary if it is a life company,".
31
87 Subsection 132A(9)
32
Omit "life company", substitute "body corporate giving the notice or
33
report".
34
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
16 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
88 Application
1
The amendments of section 132A of the Life Insurance Act 1995 made
2
by this Part apply in relation to matters of which a body corporate
3
becomes aware on or after the commencement of the amendments
4
(whether the matter arose before, on or after that commencement).
5
89 Subsection 133(1)
6
Omit "life company", substitute "body corporate that is a life company
7
or a registered NOHC".
8
90 Paragraph 133(2)(a)
9
Omit "life company", substitute "body".
10
91 Subsection 135(1)
11
Omit "life company a written notice inviting the company", substitute
12
"body corporate that is a life company or a registered NOHC a written
13
notice inviting the body".
14
92 Paragraph 135(1)(a)
15
Repeal the paragraph, substitute:
16
(a) a written statement of reasons why the Regulator should not
17
investigate:
18
(i) the life insurance business, or a specified part of the life
19
insurance business, of the body, if it is a life company;
20
or
21
(ii) the business of the body, if it is a registered NOHC; and
22
93 Paragraph 135(1)(b)
23
Omit "company", substitute "body".
24
94 Section 136
25
Omit "life company" (first occurring), substitute "body corporate that is
26
a life company or a registered NOHC".
27
95 Paragraphs 136(a) and (b)
28
Omit "life company", substitute "body".
29
96 Subparagraph 136(b)(ii)
30
Omit "company", substitute "body".
31
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 17
97 Subparagraph 136(b)(iii)
1
Omit "section 22, on the registration of the company", substitute
2
"Part 3, on the registration of the body".
3
98 Paragraph 136(c)
4
Omit "life company", substitute "body".
5
99 Paragraph 136(c)
6
Omit "the company", substitute "the body".
7
100 Paragraph 136(ca)
8
Omit "life company", substitute "body".
9
101 Paragraphs 136(d), (e), (f) and (g)
10
Before "that", insert "if the body is a life company--".
11
102 At the end of section 136
12
Add:
13
; (h) if the body is a registered NOHC--that information in the
14
possession of the Regulator calls for the investigation of the
15
business of the NOHC.
16
103 Subsection 137(1)
17
Omit "life company", substitute "body corporate that is a life company,
18
or business of a body corporate that is a registered NOHC,".
19
104 Paragraphs 137(1)(a) and (b)
20
Omit "company", substitute "body".
21
105 Subsection 137(2)
22
Omit "life company", substitute "body corporate that is a life company,
23
or business of a body corporate that is a registered NOHC,".
24
106 Paragraph 137(2)(a)
25
Omit "company", substitute "body".
26
107 Subparagraphs 137(2)(c)(i) and (ii)
27
Omit "company", substitute "body".
28
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
18 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
108 Paragraph 137(2)(d)
1
Repeal the paragraph, substitute:
2
(d) the Regulator is satisfied that:
3
(i) if the body is a life company--it is in the best interests
4
of owners of policies issued by the company that the
5
business be investigated under this Division; or
6
(ii) if the body is a registered NOHC--it is in the public
7
interest that the business be investigated under this
8
Division.
9
109 Paragraph 138(a)
10
Omit "life company (the first company)", substitute "body corporate
11
(the first body) that is a life company or a registered NOHC".
12
Note:
The heading to section 138 is altered by omitting "company" and substituting "body
13
corporate".
14
110 Paragraph 138(b)
15
Omit "company (the associated company)", substitute "body corporate
16
(the associated body)".
17
111 Paragraph 138(b)
18
Omit "first company", substitute "first body".
19
112 Paragraph 138(c)
20
Omit "company", substitute "body".
21
113 Sections 139, 140, 141, 142, 143, 147 and 149
22
Omit "company" (wherever occurring), substitute "body corporate".
23
Note:
The heading to section 149 is altered by omitting "company" and substituting "body
24
corporate".
25
114 Section 152
26
Insert:
27
body concerned means:
28
(a) in relation to records--the body corporate by which, or for
29
which, the records are kept; and
30
(b) in relation to the execution of a warrant--the body corporate
31
to whose records the warrant relates.
32
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 19
115 Section 152 (definition of company concerned)
1
Repeal the definition.
2
116 Sections 153, 154, 155 and 156
3
Omit "company" (wherever occurring), substitute "body".
4
117 Application
5
The amendments of Divisions 3 and 4 of Part 7 of the Life Insurance
6
Act 1995 made by this Part apply in relation to notices given under
7
section 135 of that Act after the commencement of those amendments.
8
Note:
Division 4 of Part 7 of the Life Insurance Act 1995 deals with things done under
9
warrants issued under Division 3 of that Part. A warrant can be issued under Division 3
10
of that Part only in connection with an investigation under that Division, which can be
11
carried out only after a notice has been given under section 135 of that Act.
12
118 Subsection 156A(1)
13
Omit "a life company", substitute "a body corporate that is a life
14
company or a registered NOHC".
15
119 Paragraphs 156A(1)(a), (b), (c) and (d)
16
Omit "life company", substitute "body".
17
120 Subparagraphs 156A(2)(a)(ii) and (iii)
18
Repeal the subparagraphs, substitute:
19
(ii) the body's auditor or a member of an audit team
20
conducting an audit of the body;
21
(iii) the appointed actuary of the body, if the body is a life
22
company;
23
121 Subparagraphs 156A(2)(a)(iv) and (v) and (c)(i) and (ii)
24
Omit "life company", substitute "body".
25
122 Subparagraph 156E(1)(b)(i)
26
Repeal the subparagraph, substitute:
27
(i) the body's auditor or a member of an audit team
28
conducting an audit of the body; or
29
(ia) the body's appointed actuary, if the body is a life
30
company; or
31
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
20 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
Note:
The heading to section 156E is altered by omitting "company, company officers and"
1
and substituting "body and its officers,".
2
123 Subparagraphs 156E(1)(b)(ii) and (iii)
3
Omit "life company", substitute "body".
4
124 Subparagraph 156E(1)(c)(i)
5
Repeal the subparagraph, substitute:
6
(i) the body's auditor or a member of an audit team
7
conducting an audit of the body; or
8
(ia) the body's appointed actuary, if the body is a life
9
company; or
10
125 Subparagraphs 156E(1)(c)(ii), (iii), (iv) and (v)
11
Omit "life company", substitute "body".
12
126 Application
13
The amendments of section 156A and 156E of the Life Insurance Act
14
1995 made by this Part apply to disclosures made on or after the
15
commencement of the amendments.
16
127 Subsection 190(2)
17
Omit "this Act", substitute "section 21".
18
128 Subparagraphs 203B(a)(i) and (b)(i)
19
Omit "this Act", substitute "section 21".
20
129 Paragraphs 230A(1)(a), (b) and (c)
21
After "companies", insert ", registered NOHCs or subsidiaries of life
22
companies or registered NOHCs".
23
Note:
The heading to section 230A is altered by adding at the end ", registered NOHCs and
24
subsidiaries".
25
130 Subsection 230A(1)
26
Omit "concerned", substitute "that are to comply with the standards or
27
that are related to bodies corporate that are to comply with the
28
standards".
29
131 After subsection 230A(3)
30
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 21
Insert:
1
(3A) Without limiting the prudential matters in relation to which APRA
2
may determine a standard, a standard may require:
3
(a) each life company or registered NOHC; or
4
(b) each life company or registered NOHC included in a
5
specified class of life companies or registered NOHCs; or
6
(c) a specified life company or registered NOHC; or
7
(d) each of 2 or more specified life companies or registered
8
NOHCs;
9
to ensure that its subsidiaries (or particular subsidiaries), or it and
10
its subsidiaries (or particular subsidiaries), collectively satisfy
11
particular requirements in relation to prudential matters.
12
132 At the end of subsection 230A(4)
13
Add ", registered NOHCs or subsidiaries of a life company or registered
14
NOHC".
15
133 Subsections 230A(7) and (9)
16
Repeal the subsections, substitute:
17
(7) If APRA determines or varies a standard referred to in
18
paragraph (1)(c) it must, as soon as practicable, give a copy of the
19
standard or variation to:
20
(a) if the standard applies to one or more life companies that are
21
not subsidiaries of a registered NOHC--each of those life
22
companies; and
23
(b) if the standard applies to one or more registered NOHCs--
24
each of those registered NOHCs; and
25
(c) if the standard applies to one or more subsidiaries of a life
26
company or registered NOHC--each of those subsidiaries or,
27
if they are specified as subsidiaries of the life company or
28
registered NOHC, the life company or registered NOHC (as
29
appropriate).
30
(9) If APRA revokes a standard referred to in paragraph (1)(c) it must,
31
as soon as practicable, give notice of the revocation to:
32
(a) if the standard applied to one or more life companies that are
33
not subsidiaries of a registered NOHC--each of those life
34
companies; and
35
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
22 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
(b) if the standard applied to one or more registered NOHCs--
1
each of those registered NOHCs; and
2
(c) if the standard applied to one or more subsidiaries of a life
3
company or registered NOHC--each of those subsidiaries or,
4
if they are specified as subsidiaries of the life company or
5
registered NOHC, the life company or registered NOHC (as
6
appropriate).
7
134 Subsection 230A(13)
8
Repeal the subsection.
9
135 Application
10
(1)
The amendments of section 230A of the Life Insurance Act 1995 made
11
by this Part apply in relation to standards determined on or after the
12
commencement of the amendments.
13
(2)
To avoid doubt, the amendments do not affect the validity of a standard
14
determined under that section before the commencement of the
15
amendments.
16
136 Subsection 230B(1)
17
Repeal the subsection, substitute:
18
(1) APRA may give a body corporate that is a life company or a
19
registered NOHC a direction of a kind specified in subsection (2) if
20
APRA has reason to believe that:
21
(a) the body corporate has contravened a provision of this Act or
22
the Financial Sector (Collection of Data) Act 2001; or
23
(b) the body corporate is likely to contravene this Act or the
24
Financial Sector (Collection of Data) Act 2001, and such a
25
contravention is likely to give rise to a prudential risk; or
26
(c) the body corporate has contravened a condition or direction
27
under this Act or the Financial Sector (Collection of Data)
28
Act 2001; or
29
(d) the direction is necessary in the interests of:
30
(i) if the body corporate is a life company--policy owners
31
or prospective policy owners of the life company; or
32
(ii) if the body corporate is a registered NOHC--policy
33
owners or prospective policy owners of any life
34
company that is a subsidiary of the NOHC; or
35
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 23
(e) the body corporate is, or is about to become, unable to meet
1
its liabilities; or
2
(f) there is, or there might be, a material risk to the security of
3
the body corporate's assets; or
4
(g) there has been, or there might be, a sudden material
5
deterioration in the body corporate's financial condition; or
6
(h) the body corporate is conducting its affairs in an improper or
7
financially unsound way; or
8
(i) the failure to issue a direction would materially prejudice the
9
interests of:
10
(i) if the body corporate is a life company--policy owners
11
or prospective policy owners of the life company; or
12
(ii) if the body corporate is a registered NOHC--policy
13
owners or prospective policy owners of any life
14
company that is a subsidiary of the NOHC; or
15
(j) the body corporate is conducting its affairs in a way that may
16
cause or promote instability in the Australian financial
17
system.
18
137 Paragraph 230B(1A)(a)
19
Omit "company", substitute "body corporate".
20
138 Subsection 230B(2)
21
Repeal the subsection, substitute:
22
(2) The kinds of direction that the body corporate may be given are
23
directions to do, or to cause a body corporate that is its subsidiary
24
to do, any one or more of the following:
25
(a) to comply with the whole or a part of this Act or the
26
Financial Sector (Collection of Data) Act 2001;
27
(b) to comply with a condition or direction referred to in
28
paragraph (1)(c);
29
(c) to order an audit of the affairs of the body corporate, at the
30
expense of the body corporate, by an auditor chosen by
31
APRA;
32
(d) to remove a director or senior manager from office;
33
(e) to ensure a director or senior manager of the body corporate
34
does not take part in the management or conduct of the
35
business of the body corporate except as permitted by APRA;
36
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
24 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
(f) to appoint a person or persons as a director or senior manager
1
of the body corporate for such term as APRA directs;
2
(g) to remove any auditor of the body corporate from office and
3
appoint another auditor to hold office for such term as APRA
4
directs;
5
(h) to terminate the appointment of the appointed actuary of the
6
body corporate and to appoint another actuary to hold office
7
for such term as APRA directs, if the body corporate is a life
8
company;
9
(i) not to give financial accommodation to any person;
10
(j) not to issue or renew any policy, undertake any liability
11
under any policy or collect any premium;
12
(k) not to borrow any amount;
13
(l) not to accept any payment on account of share capital, except
14
payments in respect of calls that fell due before the direction
15
was given;
16
(m) not to repay any amount paid on shares;
17
(n) not to pay a dividend on any shares;
18
(o) not to discharge any policy or other liability;
19
(p) not to transfer any asset of a statutory fund;
20
(q) not to pay or transfer any amount to any person, or create an
21
obligation (contingent or otherwise) to do so;
22
(r) not to undertake any financial obligation (contingent or
23
otherwise) on behalf of any other person;
24
(s) to hold, or otherwise deal in a specified way, with a specified
25
amount of capital;
26
(t) to provide, or further provide, in its accounts for the purposes
27
of this Act, a specified amount or an amount determined in a
28
specified way in respect of its liabilities or the value of a
29
specified asset of the body corporate;
30
(u) to order an actuarial investigation of the affairs of the body
31
corporate, at the expense of the body corporate, by an actuary
32
chosen by APRA;
33
(v) to do, or to refrain from doing, an act that relates to the way
34
in which the affairs of the body corporate are to be conducted
35
or not conducted.
36
A direction under paragraph (q) not to pay or transfer any amount
37
does not apply to the payment or transfer of money pursuant to an
38
order of a court or a process of execution.
39
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 25
139 Subsections 230B(5) and (6)
1
Omit "life company", substitute "body corporate".
2
140 After subsection 230B(6)
3
Insert:
4
(6A) If the direction requires the body corporate to cause a subsidiary to
5
do, or to refrain from doing, an act or thing:
6
(a) the body corporate has power to cause the subsidiary to do,
7
or to refrain from doing, the act or thing; and
8
(b) the subsidiary has power to do, or to refrain from doing, the
9
act or thing;
10
despite anything in the subsidiary's constitution or any contract or
11
arrangement to which the subsidiary is a party.
12
141 Subsection 230B(7)
13
Omit "life company", substitute "body corporate".
14
142 Paragraph 230B(8)(c)
15
Omit "company", substitute "body corporate".
16
143 Subsection 230B(10) (definition of senior manager)
17
Repeal the definition.
18
144 Subsection 230C(2)
19
Omit "230B(2)(m)", substitute "230B(2)(o)".
20
145 Application
21
(1)
The amendments of sections 230B and 230C of the Life Insurance Act
22
1995 made by this Part apply in relation to the giving of directions on or
23
after the commencement of those amendments.
24
(2)
To avoid doubt, those amendments do not affect the validity of a
25
direction given under section 230B of that Act before the
26
commencement of those amendments.
27
146 Subsection 230D(1)
28
After "company", insert "or registered NOHC".
29
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
26 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
147 Paragraph 230D(3)(a)
1
After "company", insert "or registered NOHC".
2
148 At the end of paragraph 230D(3)(b)
3
Add "or registered NOHCs".
4
149 Subsection 230D(4)
5
After "company", insert "or registered NOHC".
6
150 Subsection 230F(1)
7
After "company", insert "or registered NOHC".
8
151 Subsection 230F(2)
9
After "life company", insert "or registered NOHC".
10
152 Subsection 230F(2)
11
After "the company" (wherever occurring), insert "or NOHC".
12
153 Subsection 230F(3)
13
After "life company", insert "or registered NOHC".
14
154 Paragraphs 230F(3)(a) and (b)
15
After "company", insert "or NOHC".
16
155 Subsection 230F(4)
17
After "life company", insert "or registered NOHC".
18
156 Subsection 230F(4)
19
After "the company", insert "or NOHC".
20
157 Subsection 236(1) (after paragraph (ga) of the definition
21
of reviewable decision)
22
Insert:
23
(gb) a refusal of an application for registration of a body corporate
24
under section 28A;
25
(gc) a decision to impose conditions, or additional conditions, on
26
a NOHC registration;
27
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 27
(gd) a decision to vary conditions imposed on a NOHC
1
registration;
2
(ge) a decision to revoke under section 28C a NOHC registration;
3
158 At the end of subsection 237(3)
4
Add "or of a NOHC of such a company or body".
5
159 At the end of subsection 240(1)
6
Add "and Non-Operating Holding Companies".
7
Note:
The heading to section 240 is altered by adding at the end "and Non-Operating
8
Holding Companies".
9
160 Subsection 240(3)
10
After "company", insert ", or body corporate,".
11
161 Subsection 242(2)
12
Omit "this Act", substitute "section 21".
13
162 Subparagraphs 245(2)(b)(i) and (ii)
14
After "company", insert ", or body corporate,".
15
163 Subparagraph 245(2)(b)(iii)
16
Omit "this Act", substitute "section 21".
17
164 Subparagraph 245(2)(b)(iv)
18
After "company", insert ", or body corporate,".
19
165 Subparagraphs 245(3)(b)(i) and (ii)
20
After "company", insert ", or body corporate,".
21
166 Subparagraph 245(3)(b)(iii)
22
Omit "this Act", substitute "section 21".
23
167 Subparagraph 245(3)(b)(iv)
24
After "company", insert ", or body corporate,".
25
168 Subsection 245(5)
26
After "A company", insert "or body corporate".
27
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
28 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
169 Paragraph 245(5)(a)
1
After "company", insert "or body corporate".
2
170 Subparagraphs 245(5)(c)(i), (ii) and (iv)
3
After "company", insert "or body corporate".
4
171 Paragraph 245(5)(e)
5
After "company", insert "or body corporate".
6
172 Subsection 245(5A)
7
After "A company", insert "or body corporate".
8
173 Paragraph 245(5A)(a)
9
After "company", insert "or body corporate".
10
174 Subparagraphs 245(5A)(c)(i), (ii) and (iv)
11
After "company", insert "or body corporate".
12
175 Paragraph 245(5A)(e)
13
After "company", insert "or body corporate".
14
176 Paragraph 245A(2)(a)
15
After "company", insert ", or body corporate,".
16
177 Paragraph 245A(2)(b)
17
After "companies", insert ", or bodies corporate,".
18
178 Paragraph 245A(2)(c)
19
After "company", insert ", or body corporate,".
20
179 Paragraph 245A(5)(a)
21
After "company" (wherever occurring), insert ", or body corporate,".
22
180 Application
23
The amendments of section 245A of the Life Insurance Act 1995 made
24
by this Part apply in relation to applications made on or after the
25
commencement of the amendments.
26
Non-operating holding companies of life insurers Schedule 1
Main amendments Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 29
181 Subsection 254(1)
1
Omit "this Act", substitute "section 21".
2
182 Schedule
3
Insert:
4
NOHC: see Non-Operating Holding Company.
5
183 Schedule
6
Insert:
7
NOHC registration has the meaning given by section 28A.
8
184 Schedule
9
Insert:
10
Non-Operating Holding Company, in relation to a body corporate,
11
means a body corporate:
12
(a) of which the first body corporate is a subsidiary; and
13
(b) that does not carry on a business (other than a business
14
consisting of the ownership or control of other bodies
15
corporate); and
16
(c) that is incorporated in Australia.
17
185 Schedule (definition of Register)
18
After "Companies", insert "and Non-Operating Holding Companies".
19
186 Schedule
20
Insert:
21
registered NOHC means a body corporate that:
22
(a) is registered under Division 2 (Registration of NOHCs of life
23
companies) of Part 3; and
24
(b) is a NOHC of one or more life companies.
25
187 Schedule
26
Insert:
27
Schedule 1 Non-operating holding co mpanies of life insurers
Part 1 Main amendments
30 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
senior manager of a body corporate means a person who has or
1
exercises any of the senior management responsibilities (within the
2
meaning of the prudential standards) for the body.
3
4
Non-operating holding companies of life insurers Schedule 1
Consequential amend ments Part 2
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 31
1
Part 2
--
Consequential amendments
2
Australian Prudential Regulation Authority Act 1998
3
188 Paragraph 3(2)(e)
4
After "under", insert "section 21 of".
5
189 At the end of paragraph 3(2)(e)
6
Add "or a registered NOHC within the meaning of that Act".
7
Authorised Non-operating Holding Companies Supervisory
8
Levy Imposition Act 1998
9
190 Section 5 (definition of authorised NOHC)
10
Repeal the definition, substitute:
11
authorised NOHC means:
12
(a) an authorised NOHC within the meaning of the Banking Act
13
1959 or the Insurance Act 1973; or
14
(b) a registered NOHC within the meaning of the Life Insurance
15
Act 1995.
16
Note:
NOHC is short for non-operating holding company.
17
191 Paragraph 7(1)(b)
18
Omit "year.", substitute "year; or".
19
192 After paragraph 7(1)(b)
20
Insert:
21
(c) if the authorised NOHC is a registered NOHC within the
22
meaning of the Life Insurance Act 1995--the amount
23
determined, by legislative instrument, by the Treasurer for
24
the purpose of this paragraph in relation to the financial year.
25
193 Subsection 7(1)
26
Omit "or (b)", substitute ", (b) or (c)".
27
194 Application
28
Schedule 1 Non-operating holding co mpanies of life insurers
Part 2 Consequential amendments
32 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
(1)
This item applies if the amendments of the Authorised Non-operating
1
Holding Companies Supervisory Levy Imposition Act 1998 made by this
2
Schedule commence during a financial year (but not on 1 July of that
3
financial year).
4
(2)
That Act, as amended by this Schedule, has effect, in relation to that
5
financial year and authorised NOHCs that are registered NOHCs, with
6
the modifications (if any) prescribed by the regulations.
7
Note:
Subitems (1) and (2) are equivalent to subsection 2(2) of the Authorised Non-operating
8
Holding Companies Supervisory Levy Imposition Act 1998.
9
(3)
The Governor-General may make regulations for the purposes of
10
subitem (2).
11
Note:
Subitem (3) is equivalent to section 9 of the Authorised Non-operating Holding
12
Companies Supervisory Levy Imposition Act 1998.
13
(4)
In this item:
14
authorised NOHC has the same meaning as in the Authorised
15
Non-operating Holding Companies Supervisory Levy Imposition Act
16
1998 as amended by this Schedule.
17
modifications includes additions, omissions and substitutions.
18
registered NOHC has the same meaning as in the Life Insurance Act
19
1995.
20
Corporations Act 2001
21
195 Paragraph 283AC(1)(c)
22
After "under", insert "section 21 of".
23
196 Subparagraphs 324CH(5)(a)(ii) and 448C(2)(a)(ii)
24
After "under", insert "section 21 of".
25
197 Paragraph 482(1A)(b)
26
After "under", insert "section 21 of".
27
198 Subparagraph 532(3)(a)(ii)
28
After "under", insert "section 21 of".
29
199 Paragraphs 708(19)(b) and 985A(2)(b)
30
After "registered under", insert "section 21 of".
31
Non-operating holding companies of life insurers Schedule 1
Consequential amend ments Part 2
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 33
Financial Institutions Supervisory Levies Collection Act
1
1998
2
200 Section 7 (definition of authorised NOHC)
3
Repeal the definition, substitute:
4
authorised NOHC means:
5
(a) an authorised NOHC within the meaning of either:
6
(i) the Banking Act 1959; or
7
(ii) the Insurance Act 1973; or
8
(b) a registered NOHC within the meaning of the Life Insurance
9
Act 1995.
10
Note:
NOHC is short for non-operating holding company.
11
201 Section 7 (definition of life insurance company)
12
After "under", insert "section 21 of".
13
Financial Sector (Business Transfer and Group Restructure)
14
Act 1999
15
202 Subsection 4(1) (definition of life insurance company)
16
After "under", insert "section 21 of".
17
Financial Sector (Collection of Data) Act 2001
18
203 Paragraph 7(2)(e)
19
After "under", insert "section 21 of".
20
Financial Sector (Shareholdings) Act 1998
21
204 Section 3 (paragraph (b) of the definition of authorised
22
insurance company)
23
After "under", insert "section 21 of".
24
First Home Saver Accounts Act 2008
25
205 Section 18 (definition of life insurance company)
26
Schedule 1 Non-operating holding co mpanies of life insurers
Part 2 Consequential amendments
34 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
After "under", insert "section 21 of".
1
Income Tax Assessment Act 1936
2
206 Subsection 121AB(3)
3
After "under", insert "section 21 of".
4
207 Paragraph 128AE(2)(d)
5
After "under", insert "section 21 of".
6
Income Tax Assessment Act 1997
7
208 Subsection 995-1(1) (definition of life insurance
8
company)
9
After "under", insert "section 21 of".
10
Insurance Acquisitions and Takeovers Act 1991
11
209 Subsection 4(1) (paragraph (b) of the definition of
12
accounting period)
13
After "under", insert "section 21 of".
14
210 Subsection 4(1) (paragraph (b) of the definition of
15
Australian-registered insurance company)
16
After "under", insert "section 21 of".
17
211 Subsection 4(1) (subparagraph (a)(ii) of the definition of
18
book value)
19
After "under", insert "section 21 of".
20
212 Subsection 4(1) (paragraph (a) of the definition of total
21
book net liabilities)
22
After "under", insert "section 21 of".
23
213 Subparagraph 36(c)(ii)
24
After "under", insert "section 21 of".
25
214 Paragraphs 77(1)(a) and 78(1)(a)
26
Non-operating holding companies of life insurers Schedule 1
Consequential amend ments Part 2
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 35
After "registered under", insert "section 21 of".
1
Insurance Act 1973
2
215 Paragraph 116A(4)(b)
3
After "registered under", insert "section 21 of".
4
Life Insurance Supervisory Levy Imposition Act 1998
5
216 Title
6
After "under", insert "section 21 of".
7
217 Section 5 (definition of life insurance company)
8
After "under", insert "section 21 of".
9
Pooled Development Funds Act 1992
10
218 Subsection 4(1) (paragraph (a) of the definition of life
11
office)
12
After "under", insert "section 21 of".
13
Retirement Savings Accounts Act 1997
14
219 Section 16 (paragraph (a) of the definition of life
15
insurance company)
16
After "under", insert "section 21 of".
17
Social Security Act 1991
18
220 Subsection 9(1) (paragraph (d) of the definition of income
19
stream)
20
After "under", insert "section 21 of".
21
Superannuation Industry (Supervision) Act 1993
22
221 Subsection 10(1) (paragraph (a) of the definition of life
23
insurance company)
24
Schedule 1 Non-operating holding co mpanies of life insurers
Part 2 Consequential amendments
36 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
After "under", insert "section 21 of".
1
Superannuation (Unclaimed Money and Lost Members) Act
2
1999
3
222 Section 8 (paragraph (a) of the definition of life insurance
4
company)
5
After "under", insert "section 21 of".
6
Veterans' Entitlements Act 1986
7
223 Subsection 5J(1) (paragraph (d) of the definition of
8
income stream)
9
After "under", insert "section 21 of".
10
11
Injunctions Schedule 2
Banking Act 1959 Part 1
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 37
1
Schedule 2
--
Injunctions
2
Part 1
--
Banking Act 1959
3
1 Paragraph 65A(1)(a)
4
Repeal the paragraph, substitute:
5
(a) a contravention of:
6
(i) a provision of this Act, the regulations or the prudential
7
standards; or
8
(ii) a condition imposed or specified under this Act; or
9
(iii) a direction by APRA under this Act; or
10
2 Paragraphs 65A(1)(b), (c), (d), (e) and (f)
11
Omit "or condition", substitute ", condition or direction".
12
3 Paragraph 65A(4)(a)
13
Omit "section 7, 8, 66, 66A or 67", substitute "this Act, the regulations
14
or the prudential standards".
15
4 Paragraph 65A(4)(b)
16
Omit "on a consent given under subsection 63(1);", substitute "imposed
17
or specified under this Act to do; or".
18
5 After paragraph 65A(4)(b)
19
Insert:
20
(c) by a direction by APRA under this Act to do;
21
6 Subsection 65A(9)
22
Omit "subsection (1), (4) or (7)", substitute "this section".
23
24
Schedule 2 In junctions
Part 2 Insurance Act 1973
38 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
1
Part 2
--
Insurance Act 1973
2
7 Section 129D
3
Repeal the section, substitute:
4
129D Injunctions
5
Restraining injunctions
6
(1) If a person (the perpetrator) has engaged, is engaging or is
7
proposing to engage, in conduct that constituted, constitutes or
8
would constitute:
9
(a) a contravention of:
10
(i) this Act, the regulations or the prudential standards; or
11
(ii) a condition imposed or specified under this Act; or
12
(iii) a direction by APRA under this Act; or
13
(b) attempting to contravene the Act, regulations, standards,
14
condition or direction; or
15
(c) aiding, abetting, counselling or procuring a person to
16
contravene the Act, regulations, standards, condition or
17
direction; or
18
(d) inducing or attempting to induce, whether by threats,
19
promises or otherwise, a person to contravene the Act,
20
regulations, standards, condition or direction; or
21
(e) being in any way, directly or indirectly, knowingly concerned
22
in, or party to, the contravention by a person of the Act,
23
regulations, standards, condition or direction; or
24
(f) conspiring with others to contravene the Act, regulations,
25
standards, condition or direction;
26
the Federal Court may grant an injunction in accordance with
27
subsection (2).
28
Nature of injunction
29
(2) If granted, the injunction:
30
(a) is to restrain the perpetrator from engaging in the conduct;
31
and
32
Injunctions Schedule 2
Insurance Act 1973 Part 2
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 39
(b) if in the opinion of the court it is desirable to do so, may also
1
require the perpetrator to do any act or thing.
2
The court may only grant the injunction on the application of
3
APRA, and may grant it on such terms as the court thinks
4
appropriate.
5
Performance injunctions
6
(3) If a person (the unwilling person) has refused or failed, is refusing
7
or failing, or is proposing to refuse or fail, to do an act or thing that
8
the person is required by:
9
(a) this Act, the regulations or the prudential standards; or
10
(b) a condition imposed or specified under this Act; or
11
(c) a direction by APRA under this Act;
12
to do, the Federal Court may, on the application of APRA, grant an
13
injunction, on such terms as the court thinks appropriate, requiring
14
the unwilling person to do that act or thing.
15
Consent injunctions
16
(4) If an application for an injunction under subsection (1) or (3) has
17
been made, the Federal Court may, if the court thinks it
18
appropriate, grant an injunction by consent of all the parties to the
19
proceedings, whether or not the court is satisfied that that
20
subsection applies.
21
Interim injunctions
22
(5) If in the opinion of the Federal Court it is desirable to do so, the
23
court may grant an interim injunction pending determination of an
24
application under subsection (1).
25
Variation or discharge of injunctions
26
(6) The Federal Court may discharge or vary an injunction granted
27
under this section.
28
Restraining injunctions
29
(7) The power of the Federal Court to grant an injunction restraining a
30
person from engaging in conduct may be exercised:
31
Schedule 2 In junctions
Part 2 Insurance Act 1973
40 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
(a) whether or not it appears to the court that the person intends
1
to engage again, or to continue to engage, in conduct of that
2
kind; and
3
(b) whether or not the person has previously engaged in conduct
4
of that kind; and
5
(c) whether or not there is an imminent danger of substantial
6
damage to any person if the first-mentioned person engages
7
in conduct of that kind.
8
Performance injunctions
9
(8) The power of the Federal Court to grant an injunction requiring a
10
person to do an act or thing may be exercised:
11
(a) whether or not it appears to the court that the person intends
12
to refuse or fail again, or to continue to refuse or fail, to do
13
that act or thing; and
14
(b) whether or not the person has previously refused or failed to
15
do that act or thing; and
16
(c) whether or not there is an imminent danger of substantial
17
damage to any person if the first-mentioned person refuses or
18
fails to do that act or thing.
19
Damages undertakings
20
(9) If APRA applies to the Federal Court for the grant of an injunction
21
under this section, the court must not require the applicant or any
22
other person, as a condition of granting an interim injunction, to
23
give an undertaking as to damages.
24
Damages orders
25
(10) If the Federal Court has power under this section to grant an
26
injunction restraining a person from engaging in particular
27
conduct, or requiring a person to do a particular act or thing, the
28
court may, either in addition to or in substitution for the grant of
29
the injunction, order that person to pay damages to any other
30
person.
31
This section extends Federal Court's powers
32
(11) The powers this section gives the Federal Court are additional to
33
(and do not limit) its other powers.
34
35
Injunctions Schedule 2
Life Insurance Act 1995 Part 3
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 41
1
Part 3
--
Life Insurance Act 1995
2
8 Section 235
3
Repeal the section, substitute:
4
235 Injunctions
5
Restraining injunctions
6
(1) If a person (the perpetrator) has engaged, is engaging or is
7
proposing to engage, in conduct that constituted, constitutes or
8
would constitute:
9
(a) a contravention of this Act, a condition imposed or specified
10
under this Act (including a condition mentioned in subsection
11
208(3)) or a direction by APRA or ASIC under this Act; or
12
(b) attempting to contravene the Act, condition or direction; or
13
(c) aiding, abetting, counselling or procuring a person to
14
contravene the Act, condition or direction; or
15
(d) inducing or attempting to induce, whether by threats,
16
promises or otherwise, a person to contravene the Act,
17
condition or direction; or
18
(e) being in any way, directly or indirectly, knowingly concerned
19
in, or party to, the contravention by a person of the Act,
20
condition or direction; or
21
(f) conspiring with others to contravene the Act, condition or
22
direction;
23
the Court may grant an injunction in accordance with
24
subsection (2).
25
Nature of injunction
26
(2) If granted, the injunction:
27
(a) is to restrain the perpetrator from engaging in the conduct;
28
and
29
(b) if in the opinion of the Court it is desirable to do so, may also
30
require the perpetrator to do any act or thing.
31
The Court may only grant the injunction on the application of the
32
Regulator, and may grant it on such terms as the Court thinks
33
appropriate.
34
Schedule 2 In junctions
Part 3 Life Insurance Act 1995
42 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
Performance injunctions
1
(3) If a person (the unwilling person) has refused or failed, is refusing
2
or failing, or is proposing to refuse or fail, to do an act or thing that
3
the person is required by this Act, a condition imposed or specified
4
under this Act or a direction by APRA or ASIC under this Act to
5
do, the Court may, on the application of the Regulator, grant an
6
injunction, on such terms as the Court thinks appropriate, requiring
7
the unwilling person to do that act or thing.
8
Consent injunctions
9
(4) If an application for an injunction under subsection (1) or (3) has
10
been made, the Court may, if the Court thinks it appropriate, grant
11
an injunction by consent of all the parties to the proceedings,
12
whether or not the Court is satisfied that that subsection applies.
13
Interim injunctions
14
(5) If in the opinion of the Court it is desirable to do so, the Court may
15
grant an interim injunction pending determination of an application
16
under subsection (1).
17
Variation or discharge of injunctions
18
(6) The Court may discharge or vary an injunction granted under this
19
section.
20
Restraining injunctions
21
(7) The power of the Court to grant an injunction restraining a person
22
from engaging in conduct may be exercised:
23
(a) whether or not it appears to the Court that the person intends
24
to engage again, or to continue to engage, in conduct of that
25
kind; and
26
(b) whether or not the person has previously engaged in conduct
27
of that kind; and
28
(c) whether or not there is an imminent danger of substantial
29
damage to any person if the first-mentioned person engages
30
in conduct of that kind.
31
Injunctions Schedule 2
Life Insurance Act 1995 Part 3
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 43
Performance injunctions
1
(8) The power of the Court to grant an injunction requiring a person to
2
do an act or thing may be exercised:
3
(a) whether or not it appears to the Court that the person intends
4
to refuse or fail again, or to continue to refuse or fail, to do
5
that act or thing; and
6
(b) whether or not the person has previously refused or failed to
7
do that act or thing; and
8
(c) whether or not there is an imminent danger of substantial
9
damage to any person if the first-mentioned person refuses or
10
fails to do that act or thing.
11
Damages undertakings
12
(9) If the Regulator applies to the Court for the grant of an injunction
13
under this section, the Court must not require the applicant or any
14
other person, as a condition of granting an interim injunction, to
15
give an undertaking as to damages.
16
Damages orders
17
(10) If the Court has power under this section to grant an injunction
18
restraining a person from engaging in particular conduct, or
19
requiring a person to do a particular act or thing, the Court may,
20
either in addition to or in substitution for the grant of the
21
injunction, order that person to pay damages to any other person.
22
This section extends Federal Court's powers
23
(11) The powers this section gives the Court are additional to (and do
24
not limit) its other powers.
25
26
Schedule 2 In junctions
Part 4 Superannuation Industry (Supervision) Act 1993
44 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
1
Part 4
--
Superannuation Industry (Supervision) Act
2
1993
3
9 Paragraphs 315(1)(a), (b), (c), (d), (e) and (f)
4
After "Act", insert ", a condition imposed on an RSE licence or a
5
direction given under this Act by APRA or the Regulator".
6
10 Subsection 315(3)
7
After "this Act", insert ", a condition imposed on an RSE licence or a
8
direction given under this Act by APRA or the Regulator".
9
11 Subsection 315(6)
10
Omit "subsection (1), (3) or (5)", substitute "this section".
11
12 After subsection 315(11)
12
Insert:
13
This section extends Federal Court's powers
14
(11A) The powers this section gives the Court are additional to (and do
15
not limit) its other powers.
16
17
Injunctions Schedule 2
First Home Saver Accounts Act 2008 Part 5
Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Bill 2009
No. , 2009 45
1
Part 5
--
First Home Saver Accounts Act 2008
2
13 At the end of Division 2 of Part 7
3
Add:
4
120A Injunctions for breach of conditions on authorisations
5
(1) The Superannuation Industry (Supervision) Act 1993 applies in
6
accordance with subsection 114(2) with the modification set out in
7
this section.
8
(2) Treat the references in section 315 of the Superannuation Industry
9
(Supervision) Act 1993 to a condition imposed on an RSE licence
10
as references to a condition imposed on an authorisation as an
11
FHSA provider.
12
13
Schedule 2 In junctions
Part 6 Application
46 Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement)
Bill 2009 No. , 2009
1
Part 6
--
Application
2
14 Application
3
The amendments made by this Schedule apply in relation to
4
applications for injunctions made on or after the commencement of this
5
Schedule, whether the conduct, refusal or failure that is the subject of
6
the application occurred before, on or after that commencement.
7

 

[Index] [Search] [Download] [Related Items] [Help]