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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Financial
Sector (Transfers of Business) Bill 1999
No.
, 1999
(Treasury)
A
Bill for an Act to provide for transfers of business between some kinds of
financial institutions
ISBN: 0642
390908
Contents
A Bill for an Act to provide for transfers of business
between some kinds of financial institutions
The Parliament of Australia enacts:
This Act may be cited as the Financial Sector (Transfers of Business)
Act 1999.
This Act commences on the date that is the transfer date for the purposes
of the Financial Sector Reform (Amendments and Transitional Provisions) Act
(No. 1) 1999.
Without prejudice to its effect apart from this section, this Act also
has the effect it would have if each reference to a body corporate were, by
express provision, confined to a body corporate that is a corporation to which
paragraph 51(xx) of the Constitution applies.
(1) In this Act, the following words and expressions have the meanings set
out below:
ADI (authorised deposit-taking institution) means a body
corporate that is an ADI for the purposes of the Banking Act
1959.
approved section 20 statement means a statement given to APRA
under subsection 20(1) in relation to which an approval under subsection 20(2)
is in force.
approved section 30 statement means a statement given to APRA
under subsection 30(1) in relation to which an approval under subsection 30(2)
is in force.
APRA means the Australian Prudential Regulation
Authority.
APRA board member means a member of APRA’s board of
management, including APRA’s Chair and Chief Executive Officer.
APRA staff member has the same meaning as in the
Australian Prudential Regulation Authority Act 1998.
asset means property, or a right, of any kind, and
includes:
(a) any legal or equitable estate or interest (whether present or future,
vested or contingent, tangible or intangible, in real or personal property) of
any kind; and
(b) any chose in action; and
(c) any right, interest or claim of any kind including rights, interests
or claims in or in relation to property (whether arising under an instrument or
otherwise, and whether liquidated or unliquidated, certain or contingent,
accrued or accruing); and
(d) any asset within the meaning of Part IIIA of the Income Tax
Assessment Act 1936.
authorised APRA officer, when used in a particular provision
of this Act, means a person authorised under subsection (2) to perform or
exercise the functions or powers of an authorised APRA officer under that
provision.
business in relation to a body, includes the assets and
liabilities of the body.
certificate of transfer:
(a) in relation to a voluntary transfer—means a certificate issued
under section 18; and
(b) in relation to a compulsory transfer—means a certificate issued
under section 33.
compulsory transfer determination means a determination made
under section 25.
established—a body is established in a State or
Territory if:
(a) it is registered under the Corporations Law of that State or
Territory; or
(b) it is otherwise established by or under a law of that State or
Territory.
instrument includes a document and an oral
agreement.
interest, in relation to land, includes:
(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in relation to, the
land.
liability includes a duty or obligation of any kind (whether
arising under an instrument or otherwise, and whether actual, contingent or
prospective).
life insurance company means a body corporate that is
registered under the Life Insurance Act 1995.
partial transfer has the meaning given by subsection
8(2).
receiving body means a body to which another body is to
transfer, or has transferred, business under this Act.
regulated body means a body corporate that is:
(a) an ADI; or
(b) a life insurance company.
regulated business, in relation to a regulated body,
means:
(a) for a body that is an ADI—the body’s banking business
(within the meaning of the Banking Act 1959); or
(b) for a body that is a life insurance company—the body’s
life insurance business (within the meaning of the Life Insurance Act
1995).
regulatory legislation, in relation to a regulated body,
means:
(a) for a body that is an ADI—the Banking Act 1959, including
any regulations or other instruments made under that Act, or conditions imposed
under that Act; or
(b) for a body that is a life insurance company—the Life
Insurance Act 1995, including any regulations or other instruments made
under that Act, or conditions imposed under that Act.
statement of detail, in relation to a partial transfer, means
a statement that satisfies the requirements of section 19.
total transfer has the meaning given by subsection
8(3).
transferred asset, in relation to a receiving body, means an
asset that has become, under this Act, an asset of the receiving body.
transferred liability, in relation to a receiving body, means
a liability that has become, under this Act, a liability of the receiving
body.
transferring body means a body that is to transfer, or has
transferred, business under this Act.
transfer rules means rules in force under section
46.
voluntary transfer approval means an instrument of approval
under section 11.
(2) APRA may, in writing, authorise a person who is an APRA board member,
or an APRA staff member, to perform or exercise the functions or powers of an
authorised APRA officer under a particular provision of this Act.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act extends to every external Territory.
The Criminal Code applies to all offences against this
Act.
(1) This Act provides for 2 kinds of transfers of business of regulated
bodies:
(a) voluntary transfers (these are transfers under Part 3);
and
(b) compulsory transfers (these are transfers under Part
4).
Either kind of transfer may be a partial transfer or a total
transfer.
(2) A transfer of business of a regulated body is a partial
transfer if it relates to some, but not all, of the transferring
body’s business (including any business that is not regulated business).
It cannot however relate only to business that is not regulated
business.
(3) A transfer of business of a regulated body is a total
transfer if it relates to all of the transferring body’s business
(including any business that is not regulated business).
(4) For a voluntary transfer of business to take effect, APRA
must:
(a) receive an application for the transfer from the regulated bodies
concerned (the transferring body and the receiving
body); and
(b) approve the application in writing (the voluntary transfer
approval); and
(c) issue a certificate (the certificate of transfer)
stating that the transfer is to take effect.
The transfer of business takes effect when the certificate of transfer
comes into force.
(5) For a compulsory transfer of business to take effect, APRA
must:
(a) make a determination (the compulsory transfer
determination) that there is to be a transfer of business between the
regulated bodies concerned (the transferring body and the
receiving body); and
(b) issue a certificate (the certificate of transfer)
stating that the transfer is to take effect.
The transfer of business takes effect when the certificate of transfer
comes into force.
(6) Business of regulated bodies may also be transferred otherwise than
under this Act, for example in accordance with section 63 of the Banking Act
1959 or Part 9 of the Life Insurance Act 1995.
(1) For a voluntary transfer of business to take effect, APRA
must:
(a) receive an application for the transfer from the regulated bodies
concerned (the transferring body and the receiving
body) (see section 10); and
(b) approve the application in writing (the voluntary transfer
approval) (see section 11); and
(c) issue a certificate (the certificate of transfer)
stating that the transfer is to take effect (see section 18).
(2) APRA must make the voluntary transfer approval if specified criteria
are met (see section 11).
(3) The voluntary transfer approval may impose conditions to be complied
with by the transferring body or the receiving body either before or after the
certificate of transfer is issued (see section 16).
(4) APRA may only issue the certificate of transfer if specified criteria
are met. The certificate must specify when it comes into force (see section
18).
(5) The transfer of business takes effect when the certificate of transfer
comes into force (see section 22).
(1) 2 regulated bodies of the same kind may apply in writing to APRA for
approval of a transfer of business from one of the bodies to the other body. The
transfer cannot relate only to business of the transferring body that is not
regulated business.
(2) The application must be in the form prescribed by the transfer rules
and must contain or be accompanied by the information required by the transfer
rules.
Note: APRA may impose a charge in respect of the
application—see section 51 of the Australian Prudential Regulation
Authority Act 1998.
(3) For the purposes of this section, 2 regulated bodies are of the same
kind if:
(a) they are both ADIs; or
(b) they are both life insurance companies.
(1) Subject to subsection (2), APRA must, in writing (the voluntary
transfer approval), approve a transfer of business if APRA
considers that:
(a) application for approval of the transfer has been made in accordance
with section 10; and
(b) the transfer has been adequately adopted (see section 13)
by:
(i) the transferring body; and
(ii) the receiving body; and
(c) the transfer should be approved, having regard to:
(i) the interests of the depositors or policy owners of the transferring
body when viewed as a group; and
(ii) the interests of the depositors or policy owners of the receiving
body when viewed as a group; and
(iii) the interests of the financial sector as a whole; and
(iv) any other matters that APRA considers relevant; and
(d) legislation to facilitate the transfer that satisfies the requirements
of section 14 has been enacted in the State or Territory in which the
transferring body is established and the State or Territory in which the
receiving body is established; and
(e) either:
(i) the Minister has consented to the transfer; or
(ii) the Minister’s consent to the transfer is not required (see
section 15).
(2) APRA must not approve the transfer of business if, having regard to a
law prescribed for the purposes of subsection 43(4), it considers that the
transfer should not be approved.
(3) The voluntary transfer approval must be signed by an authorised APRA
officer.
In deciding whether to approve the transfer of business, APRA may consult
with any or all of the following:
(a) officers or employees of the States and Territories;
(b) the Australian Competition and Consumer Commission;
(c) the Australian Securities and Investments Commission;
(d) the Reserve Bank of Australia;
(e) any other person or body that APRA considers should be
consulted.
For the purposes of paragraph 11(1)(b), the transfer of business has been
adequately adopted by a body if:
(a) the transfer has been adopted by or on behalf of the body, or by or on
behalf of the members or a class of the members of the body, in a way prescribed
by the transfer rules; and
(b) APRA considers that adoption of the transfer in that way adequately
takes into account the interests of members of the body.
State or Territory legislation referred to in paragraph 11(1)(d) must
include provision to ensure that, when a certificate of transfer comes into
force under Division 3, the receiving body is taken to be the successor in law
to the transferring body, to the extent of the transfer. In particular, the
legislation must provide that:
(a) assets of the transferring body vest in the receiving body, to the
extent of the transfer; and
(b) liabilities of the transferring body become liabilities of the
receiving body, to the extent of the transfer; and
(c) the duties, obligations, immunities, rights and privileges applying to
the transferring body apply to the receiving body, to the extent of the
transfer; and
(d) if there is an approved section 20 statement in relation to the
transfer that specifies:
(i) that particular things are to happen or are taken to be the
case—those things are taken to happen, or to be the case, in accordance
with the statement; or
(ii) a mechanism for determining things that are to happen or are taken to
be the case—things determined in accordance with that mechanism are taken
to happen, or to be the case, as determined in accordance with that
mechanism.
The Minister’s consent to the transfer of business (see paragraph
11(1)(e)) is not required if the Minister has, in writing, determined that his
or her consent is not required in relation to:
(a) the transfer; or
(b) a class of transfers that includes the transfer.
(1) The voluntary transfer approval may impose conditions of either or
both of the following kinds:
(a) conditions to be complied with by the transferring body or the
receiving body before a certificate of transfer is issued in relation to the
transfer of business;
(b) conditions to be complied with by the transferring body or the
receiving body after a certificate of transfer has been issued or has come into
force in relation to the transfer of business.
Note 1: Failure to comply with a condition referred to in
paragraph (a) will mean that a certificate of transfer cannot be issued (see
subsection 18(1)).
Note 2: Failure to comply with a condition referred to in
paragraph (b) will not prevent the issue of a certificate of transfer, but will
be an offence under subsection (4).
(2) The transferring body or the receiving body may apply in writing to
APRA to have a condition that applies to it varied or revoked.
(3) APRA may, by notice in writing given to the body that made the
application, approve the variation or revocation if it is satisfied that the
variation or revocation is appropriate. A variation or revocation that is
approved by APRA has effect accordingly.
(4) The transferring body or the receiving body is guilty of an offence
if:
(a) a condition of a kind referred to in paragraph (1)(b) applies to that
body; and
(b) that body fails to comply with the condition.
Maximum penalty for contravention of this subsection: 200 penalty
units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of up to 5 times the penalty stated
above.
(1) If APRA approves the transfer of business, APRA must give a copy of
the voluntary transfer approval to the transferring body and the receiving
body.
(2) If APRA refuses to approve the transfer of business, APRA must give
written notice of the refusal to the transferring body and the receiving body.
The notice must include a statement of the reasons why the approval was
refused.
(1) If APRA:
(a) has made a voluntary transfer approval; and
(b) considers that all conditions of a kind referred to in paragraph
16(1)(a) that are imposed by the approval have been complied with; and
(c) if the transfer is a partial transfer—has been given a statement
of detail in relation to the partial transfer (see section 19); and
(d) is not aware of any reason why the transfer should not go
ahead;
APRA must, in writing, issue a certificate (a certificate of
transfer) stating that the transfer is to take effect.
(2) The certificate must:
(a) include the names of the transferring body and the receiving body;
and
(b) state whether the transfer is a total transfer or a partial transfer;
and
(c) if it is a partial transfer—include, or have attached to
it:
(i) the statement of detail (see section 19); and
(ii) any approved section 20 statement; and
(d) subject to subsection (3), state when the certificate is to come into
force (either by specifying a date as the date it comes into force, or by
specifying that the date it comes into force is a date worked out in accordance
with provisions of the certificate); and
(e) be signed by an authorised APRA officer.
(3) APRA must, in deciding when the certificate is to come into force,
take into account the wishes of the transferring body and the receiving
body.
(4) The certificate comes into force in accordance with the statement
included in the certificate as required by paragraph (2)(d).
If the transfer is a partial transfer, before APRA issues a certificate
of transfer in relation to the transfer, APRA must be provided with a written
statement:
(a) that lists, in detail, the assets and liabilities of the transferring
body that are to be transferred to the receiving body; and
(b) that APRA is satisfied has been agreed to by the transferring body and
the receiving body.
(1) The transferring body or the receiving body, or both of those bodies,
may provide APRA with a written statement specifying, or specifying a mechanism
for determining, things that are to happen, or that are taken to be the case, in
relation to assets and liabilities that are to be transferred, or in relation to
the transfer of business that is to be effected.
Note: If the transfer is a partial transfer, the statement
may be included with the statement of detail under section 19.
(2) APRA may, in writing, approve the statement before issuing the
certificate of transfer if APRA is satisfied that:
(a) the statement has been agreed to by the transferring body and the
receiving body; and
(b) the matters specified in the statement are appropriate.
(1) If APRA issues the certificate of transfer, APRA must give a copy of
the certificate to the transferring body and the receiving body.
(2) If APRA refuses to issue the certificate of transfer, APRA must give
written notice of the refusal to the transferring body and the receiving body.
The notice must include a statement of the reasons why the certificate was not
issued.
(1) When the certificate of transfer comes into force, the receiving body
becomes the successor in law of the transferring body, to the extent of the
transfer. In particular:
(a) if the transfer is a total transfer—all the assets and
liabilities of the transferring body, wherever those assets and liabilities are
located, become (respectively) assets and liabilities of the receiving body
without any transfer, conveyance or assignment; and
(b) if the transfer is a partial transfer—all the assets and
liabilities of the transferring body that are included in the list of assets and
liabilities specified in the statement of detail, wherever those assets and
liabilities are located, become (respectively) assets and liabilities of the
receiving body without any transfer conveyance or assignment; and
(c) to the extent of the transfer, the duties, obligations, immunities,
rights and privileges applying to the transferring body apply to the receiving
body.
(2) If there is an approved section 20 statement in relation to the
transfer, then:
(a) if the statement specifies that particular things are to happen or are
taken to be the case—those things are, by force of this section, taken to
happen, or to be the case, in accordance with the statement; and
(b) if the statement specifies a mechanism for determining things that are
to happen or are taken to be the case—things determined in accordance with
that mechanism are, by force of this section, taken to happen, or to be the
case, as determined in accordance with that mechanism.
(3) Subject to subsection (2), if:
(a) the transfer is a total transfer; and
(b) immediately before the certificate comes into force, proceedings
(including arbitration proceedings) to which the transferring body was a party
were pending or existing in any court or tribunal;
the receiving body is, on and after the day when the certificate comes into
force, substituted for the transferring body as a party to the proceedings and
has the same rights in the proceedings as the transferring body had.
Note: An alternative way of dealing with substitution of
parties (which is available for total or partial transfers) is to deal with the
matter in an approved section 20 statement (see subsection
(2)).
(4) Subject to subsection (2), if:
(a) the transfer is a total transfer; and
(b) on the day when the certificate comes into force, documentary or other
evidence would (disregarding the transfer) have been admissible for or against
the interests of the transferring body;
that evidence is admissible, on or at any time after that day, for or
against the interests of the receiving body.
Note: An alternative way of dealing with admissibility of
evidence (which is available for total or partial transfers) is to deal with the
matter in an approved section 20 statement (see subsection
(2)).
(5) Subject to subsection (2), if the transfer is a total transfer, on and
after the day when the certificate comes into force, each translated instrument
continues to have effect, according to its tenor, as if a reference in the
instrument to the transferring body were a reference to the receiving body. For
this purpose:
translated instrument means an instrument (including an Act
or other legislative instrument) subsisting immediately before the day when the
certificate comes into force:
(a) to which the transferring body is a party; or
(b) that was given to, by or in favour of, the transferring body;
or
(c) that refers to the transferring body; or
(d) under which money is, or may become, payable, or other property is, or
may become, liable to be transferred, to or by the transferring body.
Note: An alternative way of dealing with references in
instruments (which is available for total or partial transfers) is to deal with
the matter in an approved section 20 statement (see subsection
(2)).
(6) Subject to subsection (2), on and after the day when the certificate
comes into force, a place that, immediately before that day, was a place of
business for the transferring body in relation to business that was transferred
to the receiving body is taken to be a place of business for the receiving
body.
Note: An alternative way of dealing with places of business
is to deal with the matter in an approved section 20 statement (see subsection
(2)).
(1) This section applies to every person who, immediately before the day
when the certificate of transfer comes into force, was performing duty in the
transferring body.
(2) The terms and conditions of employment (including any accrued
entitlement to employment benefits) of each person to whom this section applies
are not affected by the operation or effect of this Part or of any State or
Territory legislation referred to in paragraph 11(1)(d).
(1) For a compulsory transfer of business to take effect, APRA
must:
(a) make a determination (the compulsory transfer
determination) that there is to be a transfer of business between the
regulated bodies concerned (the transferring body and the
receiving body) (see section 25); and
(b) issue a certificate (the certificate of transfer)
stating that the transfer is to take effect (see section 33).
(2) APRA may only make the compulsory transfer determination if specified
criteria are met (including that APRA is satisfied that the board of directors
of the receiving body has consented to the transfer) (see section 25).
(3) The compulsory transfer determination may impose conditions to be
complied with by the transferring body or the receiving body either before or
after the certificate of transfer is issued (see section 31).
(4) APRA may only issue the certificate of transfer if specified criteria
are met. The certificate must specify when it comes into force (see section
33).
(5) The transfer of business takes effect when the certificate of transfer
comes into force (see section 35).
(1) APRA may, in writing, make a determination (the compulsory
transfer determination) that there is to be a transfer of business from
one regulated body to another regulated body. The transfer cannot relate only to
business of the transferring body that is not regulated business.
(2) APRA may only make the determination if:
(a) APRA is satisfied that one or more of the following applies:
(i) the transferring body has contravened a provision of its regulatory
legislation;
(ii) the transfer is in the interests of depositors or policy owners of
the transferring body when viewed as a group; and
(b) APRA is satisfied that the transferring body and the receiving body
are regulated bodies of the same kind; and
(c) APRA is satisfied that the board of directors of the receiving body
has consented to the transfer; and
(d) APRA is satisfied that the transfer is appropriate, having regard
to:
(i) the interests of depositors or policy owners of the receiving body
when viewed as a group; and
(ii) the interests of the financial sector as a whole; and
(iii) any other matters that APRA considers relevant; and
(e) APRA is satisfied that legislation to facilitate the transfer that
satisfies the requirements of section 28 has been enacted in the State or
Territory in which the transferring body is established and the State or
Territory in which the receiving body is established; and
(f) either:
(i) the Minister has consented to the transfer; or
(ii) the Minister’s consent to the transfer is not required (see
section 29).
(3) The determination must include particulars of the transfer,
including:
(a) the names of the transferring body and the receiving body;
and
(b) whether it will be a total transfer or a partial transfer;
and
(c) if it will be a partial transfer—an identification of the part
of the transferring body’s business that is to be transferred.
(4) The determination must include a statement of the reasons why the
determination has been made.
(5) The determination must be signed by an authorised APRA
officer.
(6) For the purposes of this section, 2 regulated bodies are of the same
kind if:
(a) they are both ADIs; or
(b) they are both life insurance companies.
In deciding whether to make the compulsory transfer determination, APRA
may consult with any or all of the following:
(a) officers or employees of the States and Territories;
(b) the Australian Competition and Consumer Commission;
(c) the Australian Securities and Investments Commission;
(d) the Reserve Bank of Australia;
(e) any other person or body that APRA considers should be
consulted.
(1) The consent referred to in paragraph 25(2)(c) remains in force until
it is withdrawn by the receiving body’s board of directors with the
agreement of APRA.
(2) APRA may agree to the consent being withdrawn if APRA considers it
appropriate to allow the consent to be withdrawn having regard to:
(a) circumstances that have arisen since the consent was given;
or
(b) circumstances that were in existence at or before the time when the
consent was given but which were not known to the receiving body’s board
when it gave its consent; or
(c) any other relevant matter.
State or Territory legislation referred to in paragraph 25(2)(e) must
include provision to ensure that, when a certificate of transfer comes into
force under Division 3, the receiving body is taken to be the successor in law
to the transferring body, to the extent of the transfer. In particular, the
legislation must provide that:
(a) assets of the transferring body vest in the receiving body, to the
extent of the transfer; and
(b) liabilities of the transferring body become liabilities of the
receiving body, to the extent of the transfer; and
(c) the duties, obligations, immunities, rights and privileges applying to
the transferring body apply to the receiving body, to the extent of the
transfer; and
(d) if the certificate of transfer includes provisions of a kind referred
to in subsection 33(3) specifying:
(i) that particular things are to happen or are taken to be the
case—those things are taken to happen, or to be the case, in accordance
with those provisions; or
(ii) a mechanism for determining things that are to happen or are taken to
be the case—things determined in accordance with that mechanism are taken
to happen, or to be the case, as determined in accordance with that mechanism;
and
(e) if there is an approved section 30 statement in relation to the
transfer that specifies:
(i) that particular things are to happen or are taken to be the
case—those things are taken to happen, or to be the case, in accordance
with the statement; or
(ii) a mechanism for determining things that are to happen or are taken to
be the case—things determined in accordance with that mechanism are taken
to happen, or to be the case, as determined in accordance with that
mechanism.
The Minister’s consent to the transfer of business (see paragraph
25(2)(f)) is not required if the Minister has, in writing, determined that his
or her consent is not required in relation to:
(a) the transfer; or
(b) a class of transfers that includes the transfer.
(1) The transferring body or the receiving body, or both of those bodies,
may provide APRA with a written statement specifying, or specifying a mechanism
for determining, things that are to happen, or that are taken to be the case, in
relation to assets and liabilities that are to be transferred, or in relation to
the transfer of business that is to be effected.
(2) APRA may, in writing, approve the statement before issuing the
certificate of transfer if APRA is satisfied that:
(a) the statement has been agreed to by the transferring body and the
receiving body; and
(b) the matters specified in the statement are appropriate.
(1) The compulsory transfer determination may impose conditions of either
or both of the following kinds:
(a) conditions to be complied with by the transferring body or the
receiving body before a certificate of transfer is issued in relation to the
transfer of business;
(b) conditions to be complied with by the transferring body or the
receiving body after a certificate of transfer has been issued or has come into
force in relation to the transfer of business.
Note: Failure to comply with a condition referred to in
paragraph (a) or (b) will not prevent the issue of a certificate of transfer,
but will be an offence under subsection (4).
(2) The transferring body or the receiving body may apply in writing to
APRA to have a condition of a kind referred to in paragraph (1)(b) that applies
to it varied or revoked.
(3) APRA may, by notice in writing given to the body that made the
application, approve the variation or revocation if it is satisfied that the
variation or revocation is appropriate. A variation or revocation that is
approved by APRA has effect accordingly.
(4) The transferring body or the receiving body is guilty of an offence
if:
(a) a condition of a kind referred to in paragraph (1)(a) or (b) applies
to that body; and
(b) that body fails to comply with the condition.
Maximum penalty for contravention of this subsection: 200 penalty
units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: If a body corporate is convicted of an offence
against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a
court to impose a fine of up to 5 times the penalty stated
above.
APRA must give a copy of the compulsory transfer determination to the
transferring body and the receiving body.
(1) If:
(a) APRA has made a compulsory transfer determination; and
(b) APRA considers that the transfer should go ahead; and
(c) the consent referred to in paragraph 25(2)(c) is still in force (see
section 27);
APRA must, in writing, issue a certificate (a certificate of
transfer) stating that the transfer is to take effect.
(2) The certificate must:
(a) include the names of the transferring body and the receiving body;
and
(b) state whether the transfer is a total transfer or a partial transfer;
and
(c) if it is a partial transfer—include, or have attached to
it:
(i) a list of the assets and liabilities of the transferring body that are
being transferred to the receiving body; and
(ii) any approved section 30 statement; and
(d) state when the certificate is to come into force (either by specifying
a date as the date it comes into force, or by specifying that the date it comes
into force is a date worked out in accordance with provisions of the
certificate); and
(e) be signed by an authorised APRA officer.
(3) The certificate may include provisions specifying, or specifying a
mechanism for determining, other things that are to happen, or that are taken to
be the case, in relation to assets and liabilities that are to be transferred,
or in relation to the transfer of business that is to be effected, whether the
transfer is total or partial.
(4) The certificate comes into force in accordance with the statement
included in the certificate as required by paragraph (2)(d).
APRA must give a copy of the certificate of transfer to the transferring
body and the receiving body.
(1) When the certificate of transfer comes into force, the receiving body
becomes the successor in law of the transferring body, to the extent of the
transfer. In particular:
(a) if the transfer is a total transfer—all the assets and
liabilities of the transferring body, wherever those assets and liabilities are
located, become (respectively) assets and liabilities of the receiving body
without any transfer, conveyance or assignment; and
(b) if the transfer is a partial transfer—all the assets and
liabilities of the transferring body that are included in the list referred to
in paragraph 33(2)(c), wherever those assets and liabilities are located, become
(respectively) assets and liabilities of the receiving body without any transfer
conveyance or assignment; and
(c) to the extent of the transfer, the duties, obligations, immunities,
rights and privileges applying to the transferring body apply to the receiving
body.
(2) If the certificate includes provisions of a kind referred to in
subsection 33(3):
(a) if the provisions specify that particular things are to happen or are
taken to be the case—those things are, by force of this section, taken to
happen, or to be the case, in accordance with those provisions; and
(b) if the provisions specify a mechanism for determining things that are
to happen or are taken to be the case—things determined in accordance with
that mechanism are, by force of this section, taken to happen, or to be the
case, as determined in accordance with that mechanism.
(3) If there is an approved section 30 statement in relation to the
transfer, then:
(a) if the statement specifies that particular things are to happen or are
taken to be the case—those things are, by force of this section, taken to
happen, or to be the case, in accordance with the statement; and
(b) if the statement specifies a mechanism for determining things that are
to happen or are taken to be the case—things determined in accordance with
that mechanism are, by force of this section, taken to happen, or to be the
case, as determined in accordance with that mechanism.
(4) Subject to subsections (2) and (3), if:
(a) the transfer is a total transfer; and
(b) immediately before the certificate comes into force, proceedings
(including arbitration proceedings) to which the transferring body was a party
were pending or existing in any court or tribunal;
the receiving body is, on and after the day when the certificate comes into
force, substituted for the transferring body as a party to the proceedings and
has the same rights in the proceedings as the transferring body had.
Note: Alternative ways of dealing with substitution of
parties (which are available for total or partial transfers)
are:
(a) to deal with the matter in the certificate of transfer
(see subsection (2)); or
(b) to deal with the matter in an approved section 30
statement (see subsection (3)).
(5) Subject to subsections (2) and (3), if:
(a) the transfer is a total transfer; and
(b) on the day when the certificate comes into force, documentary or other
evidence would (disregarding the transfer) have been admissible for or against
the interests of the transferring body;
that evidence is admissible, on or at any time after that day, for or
against the interests of the receiving body.
Note: Alternative ways of dealing with admissibility of
evidence (which are available for total or partial transfers)
are:
(a) to deal with the matter in the certificate of transfer
(see subsection (2)); or
(b) to deal with the matter in an approved section 30
statement (see subsection (3)).
(6) Subject to subsections (2) and (3), if the transfer is a total
transfer, on and after the day when the certificate comes into force, each
translated instrument continues to have effect, according to its tenor, as if a
reference in the instrument to the transferring body were a reference to the
receiving body. For this purpose:
translated instrument means an instrument (including a
legislative instrument other than this Act) subsisting immediately before the
day when the certificate comes into force:
(a) to which the transferring body is a party; or
(b) that was given to, by or in favour of, the transferring body;
or
(c) that refers to the transferring body; or
(d) under which money is, or may become, payable, or other property is, or
may become, liable to be transferred, to or by the transferring body.
Note: Alternative ways of dealing with references in
instruments (which are available for total or partial transfers)
are:
(a) to deal with the matter in the certificate of transfer
(see subsection (2)); or
(b) to deal with the matter in an approved section 30
statement (see subsection (3)).
(7) Subject to subsections (2) and (3), on and after the day when the
certificate comes into force, a place that, immediately before that day, was a
place of business for the transferring body in relation to business that was
transferred to the receiving body is taken to be a place of business for the
receiving body.
Note: Alternative ways of dealing with places of business
are:
(a) to deal with the matter in the certificate of transfer
(see subsection (2)); or
(b) to deal with the matter in an approved section 30
statement (see subsection (3)).
(1) This section applies to every person who, immediately before the day
when the certificate of transfer comes into force, was performing duty in the
transferring body.
(2) The terms and conditions of employment (including any accrued
entitlement to employment benefits) of each person to whom this section applies
are not affected by the operation or effect of this Part or of any State or
Territory legislation referred to in paragraph 25(2)(e).
(1) An authorised APRA officer may, by signed writing, make a certificate
certifying any matter in relation to the operation or effect of this Act and, in
particular, may certify that:
(a) a specified matter or thing relevant to a receiving body is an aspect
of the operation or effect of this Act; or
(b) a specified thing was done for a purpose connected with, or arising
out of, the operation or effect of this Act in relation to that receiving body;
or
(c) a specified asset of the transferring body has become a transferred
asset of that receiving body; or
(d) a specified liability of the transferring body has become a
transferred liability of the receiving body.
(2) For all purposes and in all proceedings, a certificate under
subsection (1) is conclusive evidence of the matters certified, except to the
extent that the contrary is established.
If:
(a) a receiving body becomes, under this Act, the owner of land, or of an
interest in land, that is situated in a State or Territory; and
(b) there is lodged with the Registrar of Titles or other appropriate
officer of the State or Territory in which the land is situated a certificate
that:
(i) is signed by an authorised APRA officer; and
(ii) identifies the land or interest; and
(iii) states that the receiving body has, under this Act, become the owner
of that land or interest;
the officer with whom the certificate is lodged may:
(c) register the matter in the same manner as dealings in land or
interests in land of that kind are registered; and
(d) deal with, and give effect to, the certificate.
(1) If:
(a) an asset (other than land or an interest in land) becomes, under this
Act, an asset of a receiving body; and
(b) there is lodged with the person or authority who has, under a law of
the Commonwealth, a State or a Territory, responsibility for keeping a register
in respect of assets of that kind a certificate that:
(i) is signed by an authorised APRA officer; and
(ii) identifies the asset; and
(iii) states that the asset has, under this Act, become an asset of the
receiving body;
that person or authority may:
(c) register the matter in the same manner as transactions in relation to
assets of that kind are registered; and
(d) deal with, and give effect to, the certificate.
(2) This section does not affect the operations of the Corporations
Law.
A document purporting to be a certificate given under this Part is,
unless the contrary is established, taken to be such a certificate and to have
been properly given.
(1) For the purposes of deciding whether or how to perform or exercise
functions or powers under this Act in relation to a transfer of business, or a
proposed or possible transfer of business, from or to an ADI, each of the
following provisions:
(a) section 62 of the Banking Act 1959;
(b) any other provision of that Act, or of another Act, prescribed by the
regulations;
has effect as if this Act were part of the Act that contains the
provision.
(2) For the purpose of deciding whether or how to perform or exercise
functions or powers under this Act in relation to a transfer of business, or a
proposed or possible transfer of business, from or to a life insurance company,
each of the following provisions:
(a) section 131, 132 or 133 of the Life Insurance Act
1995;
(b) any other provision of that Act, or of another Act, prescribed by the
regulations;
has effect as if this Act were part of the Act that contains the
provision.
APRA may, in connection with a compulsory transfer, or a proposed or
possible compulsory transfer, provide information (including personal
information or confidential commercial information) to the receiving body, or to
the possible or proposed receiving body, about the business that is to be, or
that may be, transferred.
Note: Subsection 56(9) of the Australian Prudential
Regulation Authority Act 1998 allows an officer of APRA who (on APRA’s
behalf) provides information to a body under this section to impose conditions
to be complied with by the body in relation to that
information.
(1) Subject to subsections (4), (5) and (6), this Act has effect in spite
of anything in any contract, deed, undertaking, agreement or other
instrument.
(2) Subject to subsections (4), (5) and (6), nothing done by or under this
Act:
(a) places a receiving body, a transferring body or another person in
breach of contract or confidence or otherwise makes any of them guilty of a
civil wrong; or
(b) places a receiving body, a transferring body or another person in
breach of:
(i) any law of the Commonwealth or of a State or Territory; or
(ii) any contractual provision prohibiting, restricting or regulating the
assignment or transfer of any asset or liability or the disclosure of any
information; or
(c) releases any surety, wholly or partly, from all or any of the
surety’s obligations.
(3) Without limiting subsection (1), but subject to subsections (4), (5)
and (6), if, apart from this section, the advice or consent of a person would be
necessary in a particular respect, the advice is taken to have been obtained or
the consent is taken to have been given, as the case requires.
(4) Subject to subsection (6), if another Act prescribed by the
regulations for the purposes of this subsection:
(a) applies in relation to a transfer of business that takes effect or may
take effect under this Act; or
(b) would apply in relation to a transfer of business that takes effect or
may take effect under this Act if the same transfer were made by a means
otherwise than under this Act;
that other Act applies in relation to the transfer with the modifications
(if any) specified in the regulations.
(5) This Act and another Act prescribed for the purposes of subsection (4)
operate independently of each other. In particular, a decision under either Act
has effect only for the purposes of the Act concerned.
(6) Nothing in this section limits the operation of the Privacy Act
1988.
(1) If:
(a) apart from this section, the operation of this Act in relation to a
particular receiving body 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 receiving body is liable to pay to the person compensation of a
reasonable amount as agreed on between the receiving body and the person. If the
receiving body 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 receiving body 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.
An application may be made to the Administrative Appeals Tribunal for the
review of any of the following decisions:
(a) a decision under section 11 to refuse to approve an
application;
(b) a decision under subsection 16(1) to impose conditions;
(c) a decision under subsection 16(3) to refuse to vary or revoke
conditions;
(d) a decision under section 18 to refuse to issue a certificate of
transfer;
(e) a decision under subsection 20(2) to refuse to approve a statement
provided under subsection 20(1);
(f) a decision under subsection 27(2) to refuse to agree to a consent
being withdrawn;
(g) a decision under subsection 31(3) to refuse to vary or revoke
conditions;
(h) a decision under section 33 to refuse to issue a certificate of
transfer.
(1) APRA may, in writing, make rules prescribing all matters required or
permitted by this Act to be prescribed by transfer rules.
(2) Rules made by APRA under subsection (1) are a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.