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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Treasury Laws Amendment (Banking
Executive Accountability and Related
Measures) Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to amend the Banking Act 1959,
and for related purposes
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--The Banking Executive Accountability Regime
4
Part 1--Main amendments
4
Banking Act 1959
4
Part 2--Other amendments
27
Australian Prudential Regulation Authority Act 1998
27
Banking Act 1959
28
Part 3--Application of amendments
31
Schedule 2--Examination powers
33
Banking Act 1959
33
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
1
A Bill for an Act to amend the Banking Act 1959,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Treasury Laws Amendment (Banking Executive
5
Accountability and Related Measures) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
items 1 to 6
1 July 2018.
1 July 2018
3. Schedule 1,
item 7
The later of:
(a) the start of 1 July 2018; and
(b) immediately after the commencement of
item 4 of Schedule 4 to the Treasury
Laws Amendment (Banking Measures
No. 1) Act 2017.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
4. Schedule 1,
item 8
1 July 2018.
1 July 2018
5. Schedule 1,
item 9
The later of:
(a) the start of 1 July 2018; and
(b) immediately after the commencement of
item 4 of Schedule 1 to the Financial
Sector Legislation Amendment (Crisis
Resolution Powers and Other Measures)
Act 2017.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
6. Schedule 1,
items 10 to 13
1 July 2018.
1 July 2018
7. Schedule 1,
item 14
1 July 2023.
1 July 2023
8. Schedule 1,
items 15 to 17
1 July 2018.
1 July 2018
9. Schedule 2
1 July 2018.
1 July 2018
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
3
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation 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
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
4
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
Schedule 1--The Banking Executive
1
Accountability Regime
2
Part 1--Main amendments
3
Banking Act 1959
4
1 After Part II
5
Insert:
6
Part IIAA--The Banking Executive Accountability
7
Regime
8
Division 1--Obligations under the Banking Executive
9
Accountability Regime
10
Subdivision A--ADIs
11
37 Obligations of ADIs
12
(1) An ADI must comply with:
13
(a) its accountability obligations under Division 2; and
14
(b) its key personnel obligations under Division 3; and
15
(c) its deferred remuneration obligations under Division 4; and
16
(d) its notification obligations under Division 5.
17
(2) However, this section does not apply to:
18
(a) an ADI:
19
(i) that the Minister has exempted under section 37A; or
20
(ii) that is included in a class of ADIs that the Minister has
21
exempted under section 37A; or
22
(b) a foreign ADI, except to the extent that it operates a branch
23
of the foreign ADI in Australia.
24
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
5
37A Minister may exempt ADIs
1
Exemption of particular ADIs
2
(1) The Minister may, by written notice given to an ADI, exempt the
3
ADI from compliance with this Part.
4
Class exemptions
5
(2) The Minister may, by legislative instrument, exempt a class of
6
ADIs from compliance with this Part.
7
37AA Inconsistency with corresponding foreign laws
8
(1) If APRA is satisfied that an ADI would contravene a law of a
9
foreign country if the ADI were to comply with a particular
10
obligation under section 37, APRA:
11
(a) may give to the ADI a written notice specifying that
12
obligation; and
13
(b) may specify in the notice:
14
(i) the extent to which the ADI need not comply with that
15
obligation; and
16
(ii) conditions to which the notice is subject.
17
(2) An ADI is not required to comply with that obligation:
18
(a) to the extent compliance would result in the ADI
19
contravening that law of a foreign country; or
20
(b) if the notice specifies the extent to which the ADI need not
21
comply with that obligation--to the extent so specified;
22
if the conditions (if any) specified in the notice are complied with.
23
Subdivision B--Accountable persons
24
37B Obligations of accountable persons
25
(1) An accountable person must comply with his or her accountability
26
obligations under Division 2 in relation to each of the
27
responsibilities that cause him or her to be an accountable person
28
of an ADI, or of a subsidiary of an ADI.
29
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
6
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
(2) However, this section does not apply to an accountable person to
1
the extent that he or she is an accountable person of an ADI, or a
2
subsidiary of an ADI, to which section 37 does not apply because
3
of subsection 37(2).
4
37BA Meaning of accountable person
5
General principle
6
(1) An individual is an accountable person, of an ADI or a subsidiary
7
of an ADI, if he or she:
8
(a) either:
9
(i) in the case of the ADI--holds a position in the ADI or
10
in another body corporate of which the ADI is a
11
subsidiary; or
12
(ii) in the case of a subsidiary of the ADI--holds a position
13
in the subsidiary; and
14
(b) because of that position, has actual or effective senior
15
executive responsibility:
16
(i) for management or control of the ADI; or
17
(ii) for management or control of a significant or substantial
18
part or aspect of the operations of the ADI or the
19
relevant group of bodies corporate that is constituted by
20
the ADI and its subsidiaries.
21
Particular responsibilities
22
(2) Without limiting subsection (1), an individual is also an
23
accountable person of an ADI if he or she:
24
(a) holds a position in, or relating to, the ADI; and
25
(b) because of that position, has a responsibility, relating to the
26
ADI:
27
(i) of a kind set out in subsection (3); or
28
(ii) of a kind determined under subsection (4).
29
(3) For the purposes of subparagraph (2)(b)(i), the following are the
30
responsibilities:
31
(a) responsibility for oversight of the ADI as a member of the
32
Board of the ADI;
33
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
7
(b) senior executive responsibility for carrying out the
1
management of all the business activities of the ADI and its
2
subsidiaries, including:
3
(i) allocating to accountable persons responsibility for all
4
parts or aspects of the relevant group of bodies
5
corporate that is constituted by the ADI and its
6
subsidiaries; and
7
(ii) reporting directly to the Board of the ADI;
8
(c) senior executive responsibility for management of the ADI's
9
financial resources;
10
(d) senior executive responsibility for overall risk controls and/or
11
overall risk management arrangements of the ADI;
12
(e) senior executive responsibility for management of the ADI's
13
operations;
14
(f) senior executive responsibility for information management,
15
including information technology systems, for the ADI;
16
(g) senior executive responsibility for management of the ADI's
17
internal audit function;
18
(h) senior executive responsibility for management of the ADI's
19
compliance function;
20
(i) senior executive responsibility for management of the ADI's
21
human resources function;
22
(j) senior executive responsibility for management of the ADI's
23
anti-money laundering function.
24
(4) APRA may, by legislative instrument, determine a responsibility
25
for the purposes of subparagraph (2)(b)(ii) (other than a
26
responsibility set out in subsection (3)).
27
(5) Subsection (2) does not apply in relation to a position that a person
28
holds in an Australian branch of a foreign ADI.
29
Head of an Australian branch of a foreign ADI
30
(6) Without limiting subsection (1), an individual is also an
31
accountable person, of an ADI that is a foreign ADI, if he or she
32
has senior executive responsibility for the conduct of all the
33
activities of an Australian branch of the foreign ADI.
34
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
8
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
37BB Exception for responsibilities excluded by APRA
1
(1) Despite section 37BA, a person is not an accountable person, of
2
an ADI or a subsidiary of an ADI, if each of the person's
3
responsibilities that would, apart from this section, cause the
4
person to be an accountable person of the ADI or subsidiary is
5
either:
6
(a) a responsibility excluded under subsection (2) of this section
7
in relation to that ADI or subsidiary; or
8
(b) a responsibility excluded under subsection (3) of this section
9
in relation to a class of ADIs or subsidiaries that includes that
10
ADI or subsidiary.
11
(2) APRA may, by written notice given to an ADI or a subsidiary of an
12
ADI, exclude specified responsibilities that would, apart from this
13
section, cause any person who holds a position in, or relating to,
14
the ADI or subsidiary to be an accountable person.
15
(3) APRA may, by legislative instrument, exclude specified
16
responsibilities that would, apart from this section, cause any
17
person who holds a position in, or relating to:
18
(a) an ADI included in a class of ADIs specified in the
19
instrument; or
20
(b) a subsidiary an ADI included in a class of such subsidiaries
21
specified in the instrument;
22
to be an accountable person.
23
37BC Inconsistency with corresponding foreign laws
24
(1) If APRA is satisfied that an accountable person, of an ADI or a
25
subsidiary of an ADI, would contravene a law of a foreign country
26
if he or she were to comply with a particular obligation under
27
section 37B, APRA:
28
(a) may give to the accountable person a written notice
29
specifying that obligation; and
30
(b) may specify in the notice:
31
(i) the extent to which the accountable person need not
32
comply with that obligation; and
33
(ii) conditions to which the notice is subject.
34
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
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(2) An accountable person is not required to comply with that
1
obligation:
2
(a) to the extent compliance would result in the accountable
3
person contravening that law of a foreign country; or
4
(b) if the notice specifies the extent to which the accountable
5
person need not comply with that obligation--to the extent so
6
specified;
7
if the conditions (if any) specified in the notice are complied with.
8
(3) APRA must give a copy of the notice to the ADI or subsidiary.
9
Division 2--Accountability obligations
10
37C The accountability obligations of an ADI
11
The accountability obligations of an ADI are to take reasonable
12
steps to:
13
(a) conduct its business with honesty and integrity, and with due
14
skill, care and diligence; and
15
(b) deal with APRA in an open, constructive and cooperative
16
way; and
17
(c) in conducting its business, prevent matters from arising that
18
would adversely affect the ADI's prudential standing or
19
prudential reputation; and
20
(d) ensure that each of its accountable persons meets his or her
21
accountability obligations under section 37CA; and
22
(e) ensure that each of its subsidiaries that is not an ADI
23
complies with paragraphs (a), (b), (c) and (d) as if the
24
subsidiary were an ADI.
25
37CA The accountability obligations of an accountable person
26
(1) The accountability obligations of an accountable person of an ADI,
27
or of a subsidiary of an ADI, are to conduct the responsibilities of
28
his or her position as an accountable person:
29
(a) by acting with honesty and integrity, and with due skill, care
30
and diligence; and
31
(b) by dealing with APRA in an open, constructive and
32
cooperative way; and
33
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
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Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
(c) by taking reasonable steps in conducting those
1
responsibilities to prevent matters from arising that would
2
adversely affect the prudential standing or prudential
3
reputation of the ADI.
4
(2) If more than one of the accountable persons of an ADI or a
5
subsidiary of an ADI have the same responsibility mentioned in
6
section 37BA in relation to the ADI or subsidiary, all of those
7
accountable persons have the accountability obligations jointly in
8
relation to that responsibility.
9
Note:
Under section 37DB, APRA may direct an ADI to reallocate a
10
responsibility of an accountable person.
11
37CB Taking reasonable steps
12
Without limiting what constitutes the taking of reasonable steps in
13
relation to a matter for the purposes of this Division, the taking of
14
reasonable steps in relation to that matter includes having:
15
(a) appropriate governance, control and risk management in
16
relation to that matter; and
17
(b) safeguards against inappropriate delegations of responsibility
18
in relation to that matter; and
19
(c) appropriate procedures for identifying and remediating
20
problems that arise or may arise in relation to that matter.
21
Division 3--Key personnel obligations
22
37D The key personnel obligations of an ADI
23
(1) The key personnel obligations of an ADI are:
24
(a) subject to subsections (2) and (3), to ensure that the
25
responsibilities of the accountable persons of the ADI and its
26
subsidiaries cover:
27
(i) all parts or aspects of the operations of the relevant
28
group of bodies corporate that is constituted by the ADI
29
and its subsidiaries; and
30
(ii) each of the responsibilities to which
31
subsection 37BA(2) applies; and
32
(b) to ensure none of the accountable persons of the ADI are
33
prohibited under section 37DA; and
34
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
11
(c) to comply with any directions APRA gives to the ADI under
1
section 37DB; and
2
(d) to take reasonable steps to ensure that each of the ADI's
3
subsidiaries that is not an ADI complies with paragraphs (b)
4
and (c) as if the subsidiary were an ADI.
5
(2) Paragraph (1)(a) does not apply in relation to a responsibility
6
excluded by APRA under subsection 37BB(2) or (3).
7
(3) If the ADI is a foreign ADI, the ADI's obligation under
8
paragraph (1)(a) is taken to be an obligation to ensure that the
9
responsibilities of the ADI's accountable persons cover:
10
(a) all parts or aspects of the operations of each Australian
11
branch of the ADI; and
12
(b) for each Australian branch of the ADI, the responsibility to
13
which subsection 37BA(6) applies.
14
37DA People prohibited from being an accountable person
15
(1) A person is prohibited from being an accountable person if the
16
person:
17
(a) is not registered under Subdivision B of Division 6; or
18
(b) is disqualified under section 37J.
19
(2) However, if a person becomes an accountable person of an ADI, or
20
a subsidiary of an ADI, by filling a temporary vacancy or a
21
vacancy that was not foreseen at the time it arose, paragraph (1)(a)
22
does not apply to the person until the person has been an
23
accountable person for:
24
(a) 28 days; or
25
(b) such other period as is determined under subsection (3) or
26
(4).
27
(3) APRA may, by written notice given to an ADI, determine a period
28
for the purposes of paragraph (2)(b) in relation to the ADI or a
29
subsidiary of the ADI.
30
(4) APRA may, by legislative instrument, determine a period for the
31
purposes of paragraph (2)(b).
32
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
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Treasury Laws Amendment (Banking Executive Accountability and
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37DB APRA may direct an ADI to reallocate responsibilities
1
(1) APRA may give an ADI a written direction to reallocate a
2
responsibility to which paragraph 37D(1)(a) applies if APRA has
3
reason to believe that the current allocation of the responsibility is
4
likely to give rise to a prudential risk.
5
(2) In deciding whether to issue a direction under subsection (1),
6
APRA must have regard to the responsibilities of the accountable
7
person set out in the accountability statement for the person under
8
section 37F.
9
(3) The direction may specify the period within which it is to be
10
complied with.
11
(4) APRA may, by written notice given to the ADI, vary the direction
12
if, at the time of the variation, it considers that the variation is
13
necessary and appropriate.
14
(5) The direction has effect until APRA revokes it by written notice
15
given to the ADI. APRA may revoke the direction if, at the time of
16
revocation, it considers that the direction is no longer necessary or
17
appropriate.
18
Division 4--Deferred remuneration obligations
19
37E The deferred remuneration obligations of an ADI
20
(1) The deferred remuneration obligations of an ADI are:
21
(a) to ensure that, in relation to the variable remuneration of an
22
accountable person of the ADI:
23
(i) the payment of a portion of that variable remuneration is
24
deferred for a period; and
25
(ii) the amount of that portion is at least the amount
26
required under section 37EB; and
27
(iii) that period is at least the period required under
28
section 37EC; and
29
(b) to have a remuneration policy in force that requires that, if
30
the person has failed to comply with his or her accountability
31
obligations under section 37CA, the person's variable
32
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
13
remuneration is to be reduced by an amount that is
1
proportionate to the failure; and
2
(c) to ensure that, if the remuneration policy requires the variable
3
remuneration to be reduced because of that failure, the
4
amount of the reduction is not paid to the person; and
5
(d) to take reasonable steps to ensure that, if:
6
(i) variable remuneration may become payable to an
7
accountable person of a subsidiary of the ADI; and
8
(ii) the subsidiary is not an ADI;
9
the subsidiary complies with paragraphs (a), (b) and (c) as if
10
the subsidiary were an ADI.
11
(2) A reduction of variable remuneration:
12
(a) need not be a reduction of variable remuneration relating to a
13
period in which the failure occurred; and
14
(b) may be a reduction to zero.
15
(3) Remuneration, of an accountable person, includes:
16
(a) in relation to an accountable person of an ADI--any amount
17
of remuneration that:
18
(i) is paid or payable to the accountable person by a related
19
body corporate of the ADI; and
20
(ii) if that related body corporate is a non-ADI holding
21
company of the ADI--does not relate only to the
22
accountable person holding a position in the related
23
body corporate; or
24
(b) in relation to an accountable person of a subsidiary of an
25
ADI--any amount of remuneration that:
26
(i) is paid or payable to the accountable person by a related
27
body corporate of the subsidiary; and
28
(ii) if that related body corporate is a non-ADI holding
29
company of the subsidiary--does not relate only to the
30
accountable person holding a position in the related
31
body corporate.
32
37EA Meaning of variable remuneration
33
(1) The variable remuneration of an accountable person of an ADI, or
34
a subsidiary of an ADI:
35
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
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Treasury Laws Amendment (Banking Executive Accountability and
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No. , 2017
(a) means so much of the accountable person's total
1
remuneration as is conditional on the achievement of
2
objectives; and
3
(b) includes so much of the accountable person's total
4
remuneration as is remuneration of a kind determined under
5
paragraph (3)(a) or (4)(a).
6
(2) However, remuneration of a kind determined under
7
paragraph (3)(b) or (4)(b) is not variable remuneration of an
8
accountable person of an ADI, or a subsidiary of an ADI.
9
(3) APRA may, by written notice given to an ADI, or a subsidiary of
10
an ADI, determine that:
11
(a) remuneration of a particular kind, of one or more accountable
12
persons of the ADI or subsidiary, is variable remuneration; or
13
(b) remuneration of a particular kind, of one or more accountable
14
persons of the ADI or subsidiary, is not variable
15
remuneration.
16
A determination under this subsection may apply to all accountable
17
persons of the ADI or subsidiary, or be limited to a particular
18
accountable person or class of accountable persons of the ADI or
19
subsidiary.
20
(4) APRA may, by legislative instrument, determine that:
21
(a) remuneration of a particular kind is variable remuneration; or
22
(b) remuneration of a particular kind is not variable
23
remuneration.
24
37EB Minimum amount of variable remuneration to be deferred
25
(1) The amount of an accountable person's variable remuneration that
26
is required to be deferred under subparagraph 37E(1)(a)(ii) is as
27
follows:
28
29
Minimum amount of variable remuneration to be deferred
Item
If the accountable person is:
... the amount is:
1
The Chief Executive Officer
of a large ADI
The lesser of:
(a) 60% of the Chief Executive Officer's
variable remuneration for the financial
The Banking Executive Accountability Regime Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
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Minimum amount of variable remuneration to be deferred
Item
If the accountable person is:
... the amount is:
year (the relevant financial year) in
which the decision was made granting
the variable remuneration; or
(b) 40% of the Chief Executive Officer's
total remuneration for the relevant
financial year.
2
An accountable person of:
(a) a large ADI; or
(b) a subsidiary of a large
ADI;
other than the Chief Executive
Officer of a large ADI
The lesser of:
(a) 40% of the accountable person's
variable remuneration for the relevant
financial year; or
(b) 20% of the accountable person's total
remuneration for the relevant financial
year.
3
An accountable person of:
(a) a medium ADI; or
(b) a subsidiary of a medium
ADI
The lesser of:
(a) 40% of the accountable person's
variable remuneration for the relevant
financial year; or
(b) 20% of the accountable person's total
remuneration for the relevant financial
year.
4
An accountable person of:
(a) a small ADI; or
(b) a subsidiary of a small
ADI
The lesser of:
(a) 40% of the accountable person's
variable remuneration for the relevant
financial year; or
(b) 10% of the accountable person's total
remuneration for the relevant financial
year.
1
(2) For the purposes of this section, the value of variable remuneration
2
of an accountable person of an ADI, or a subsidiary of an ADI, that
3
has been deferred is taken to be:
4
(a) the value worked out, for the accountable person, in the way
5
determined under subsection (3) or (4); or
6
(b) if no such determination applies in relation to the accountable
7
person--what would have been the value of that
8
Schedule 1 The Banking Executive Accountability Regime
Part 1 Main amendments
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Treasury Laws Amendment (Banking Executive Accountability and
Related Measures) Bill 2017
No. , 2017
remuneration if it had instead been paid to the person at the
1
time the decision to grant it was made.
2
(3) APRA may, by written notice given to an ADI or to a subsidiary of
3
an ADI, determine the way to work out, for the purposes of this
4
section, the value of variable remuneration of accountable persons
5
of the ADI or subsidiary.
6
(4) APRA may, by legislative instrument, determine the way to work
7
out, for the purposes of this section, the value of variable
8
remuneration of:
9
(a) accountable persons of an ADI included in a specified class
10
of ADIs; or
11
(b) accountable persons of a subsidiary of an ADI included in a
12
specified class of subsidiaries of ADIs.
13
37EC Minimum period of deferral
14
(1) The required period under subparagraph 37E(1)(a)(iii) in relation
15
to variable remuneration of an accountable person of an ADI, or a
16
subsidiary of an ADI, is:
17
(a) 4 years; or
18
(b) a shorter period approved by APRA under subsection (4) in
19
relation to the variable remuneration;
20
starting on the day after the day on which the decision was made
21
granting the accountable person the variable remuneration.
22
(2) However, if, at the end of the period under subsection (1), the ADI
23
or subsidiary considers that the accountable person is likely to have
24
failed to comply with his or her accountability obligations under
25
section 37CA, that period is extended until the day the ADI or
26
subsidiary determines whether he or she has failed to comply.
27
(3) An ADI may apply to APRA for APRA to approve a shorter period
28
under subsection (4) in relation to the variable remuneration of an
29
accountable person of an ADI, or a subsidiary of an ADI, if the
30
ADI is satisfied that:
31
(a) based on the information known at the time of the
32
application, the accountable person has complied with his or
33
her accountability obligations under section 37CA; and
34
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17
(b) it is unlikely that further information will become known,
1
before the end of the 4 year period mentioned in
2
paragraph (1)(a), that indicates that the accountable person
3
did not comply with those obligations.
4
(4) APRA may approve a shorter period in relation to the variable
5
remuneration of a person if APRA is satisfied that:
6
(a) either:
7
(i) the person is no longer an accountable person of the
8
ADI or subsidiary, because of the person's death,
9
serious incapacity, serious disability or serious illness;
10
or
11
(ii) a circumstance determined under subsection (5) or (6)
12
exists relation to the person; and
13
(b) the ADI or subsidiary has taken all reasonable steps to satisfy
14
itself of the matters mentioned in paragraphs (3)(a) and (b).
15
(5) APRA may, by written notice given to an ADI, determine
16
circumstances for the purposes of subparagraph (4)(a)(ii) in
17
relation to the ADI and/or one or more subsidiaries of the ADI.
18
(6) APRA may, by legislative instrument, determine circumstances for
19
the purposes of subparagraph (4)(a)(ii).
20
37ED Exemption for small amounts of variable remuneration
21
(1) Paragraph 37E(1)(a) does not apply in relation to the variable
22
remuneration of an accountable person for a financial year if the
23
amount of the person's variable remuneration that is required, or
24
would apart from this section be required, under
25
subparagraph 37E(1)(a)(ii) to be deferred for that financial year is
26
less than:
27
(a) the amount determined under subsection (2); or
28
(b) if a determination under subsection (2) is not in force--
29
$50,000.
30
(2) The Minister may, by legislative instrument, determine an amount
31
for the purposes of paragraph (1)(a).
32
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Division 5--Notification obligations
1
37F The notification obligations of an ADI
2
(1) The notification obligations of an ADI are:
3
(a) to give to APRA a document complying with section 37FA
4
(an accountability statement) for each of its accountable
5
persons, and to ensure that APRA is notified of any change to
6
the accountability statement within the period, after the
7
change, provided under subsection (2); and
8
(b) to give to APRA a document complying with section 37FB
9
(an accountability map), and to ensure that APRA is notified
10
of any change to the accountability map within the period,
11
after the change, provided under subsection (2); and
12
(c) to notify APRA of an event mentioned in section 37FC
13
within the period, after the event, provided under
14
subsection (2); and
15
(d) to take reasonable steps to ensure that each of its subsidiaries
16
that is not an ADI complies with paragraphs (a) and (c) as if
17
the subsidiary were an ADI.
18
(2) For the purposes of paragraph (1)(a), (b) or (c), the period is:
19
(a) 14 days; or
20
(b) such other period as determined under subsection (3).
21
(3) APRA may, by legislative instrument, determine, for the purposes
22
of paragraph (2)(b), a period mentioned in paragraph (1)(a), (b) or
23
(c).
24
37FA Accountability statements
25
(1) For the purposes of paragraph 37F(1)(a), an accountability
26
statement of an ADI, or of a subsidiary of an ADI, for an
27
accountable person of the ADI or subsidiary must contain a
28
comprehensive statement of:
29
(a) the part or aspect of the ADI's or subsidiary's operations of
30
which the accountable person has actual or effective
31
responsibility for management or control; and
32
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(b) the responsibilities of the accountable person, including any
1
responsibilities to which paragraph 37D(1)(a) applies or
2
subsection 37D(3) applies, as the case requires; and
3
(c) the matters determined by APRA under subsection (2).
4
(2) APRA may, by legislative instrument, determine matters for the
5
purposes of paragraph (1)(c).
6
37FB Accountability map
7
(1) For the purposes of paragraph 37F(1)(b), an accountability map of
8
an ADI must contain the following information:
9
(a) the names of all of the accountable persons of the ADI and its
10
subsidiaries;
11
(b) details of the reporting lines and lines of responsibility of
12
those accountable persons;
13
(c) sufficient information to identify an accountable person for
14
each of the responsibilities to which paragraph 37D(1)(a)
15
applies or subsection 37D(3) applies, as the case requires;
16
(d) information of a kind determined by APRA under
17
subsection (2).
18
(2) APRA may, by legislative instrument, determine kinds of
19
information for the purposes of paragraph (1)(d).
20
37FC Events for which APRA must be notified
21
For the purposes of paragraph 37F(1)(c), the following events must
22
be notified to APRA by an ADI:
23
(a) a person ceasing to be an accountable person of the ADI or a
24
subsidiary of the ADI;
25
(b) the dismissal or suspension of an accountable person by the
26
ADI, or subsidiary of the ADI, because the person has failed
27
to comply with his or her accountability obligations under
28
37CA;
29
(c) the reduction of the variable remuneration of a person by the
30
ADI, or subsidiary of the ADI, because the person has failed
31
to comply with his or her accountability obligations under
32
section 37CA;
33
(d) the ADI becoming aware of:
34
Schedule 1 The Banking Executive Accountability Regime
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(i) a breach by the ADI of its accountability obligations
1
under section 37C; or
2
(ii) a breach by an accountable person of the ADI, or of a
3
subsidiary of the ADI, of his or her accountability
4
obligations under section 37CA.
5
Division 6--Enforcement and administration
6
Subdivision A--Civil penalties
7
37G Pecuniary penalty for non-compliance with this Part
8
(1) An ADI is liable to a pecuniary penalty if:
9
(a) the ADI contravenes its obligations under this Part (other
10
than this Division); and
11
(b) the contravention relates to prudential matters.
12
(2) The amount of the pecuniary penalty is an amount not exceeding:
13
(a) if the ADI is a large ADI--1,000,000 penalty units; or
14
(b) if the ADI is a medium ADI--250,000 penalty units; or
15
(c) if the ADI is a small ADI--50,000 penalty units.
16
(3) The Minister may, by legislative instrument, determine:
17
(a) the kinds of ADIs that are large ADIs; and
18
(b) the kinds of ADIs that are medium ADIs; and
19
(c) the kinds of ADIs that are small ADIs.
20
(4) In determining the pecuniary penalty, the Federal Court of
21
Australia must have regard to the impact that the penalty would
22
have on the viability of the ADI.
23
(5) Subsection (4) does not limit subclause 1(3) of Schedule 2.
24
(6) This section is a civil penalty provision.
25
Subdivision B--Registration of accountable persons
26
37H Register of accountable persons
27
(1) APRA must establish and keep a register of accountable persons.
28
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(2) The register may be kept by electronic means.
1
(3) The register is not a legislative instrument.
2
(4) The register must contain, for each accountable person:
3
(a) the person's name; and
4
(b) the date of the person's registration as an accountable person;
5
and
6
(c) the date the person ceases to be an accountable person; and
7
(d) details of any disqualification of the person under section 21
8
or 37J; and
9
(e) details of any variation or revocation of disqualification
10
under section 22 or 37JA; and
11
(f) details of any direction APRA has given in relation to the
12
person that is:
13
(i) a direction under section 11CA of a kind mentioned in
14
paragraph 11CA(2)(c) or (d); or
15
(ii) a direction under section 23; and
16
(g) such other information as APRA considers appropriate.
17
Note:
For disclosure of information on the register, see section 56 of the
18
Australian Prudential Regulation Authority Act 1998.
19
37HA Registration of a person as an accountable person
20
(1) An ADI may apply to APRA to register a person as an accountable
21
person.
22
(2) The application must:
23
(a) be in the form approved in writing by APRA; and
24
(b) contain the information that the form requires; and
25
(c) include a signed declaration that the ADI is satisfied the
26
person is suitable be an accountable person; and
27
(d) include the accountability statement for the person under
28
section 37F.
29
(3) APRA may, by written notice given to the ADI, request the ADI to
30
give to APRA further information in relation to the application.
31
(4) APRA must, within the period provided under subsection (5),
32
register a person as an accountable person if:
33
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(a) the application meets the requirements of subsection (2); and
1
(b) the ADI gives to APRA any further information requested
2
under subsection (3) in relation to the application;
3
unless the ADI withdraws the application before the day of
4
registration.
5
(5) The period for registration under subsection (4) is the period of 14
6
days after:
7
(a) the day the application is made; or
8
(b) if APRA requests the ADI to give further information under
9
subsection (3) in relation to the application--the day the ADI
10
gives the further information to APRA.
11
Subdivision C--Disqualification of accountable persons
12
37J APRA may disqualify an accountable person
13
Disqualification by APRA
14
(1) APRA may disqualify a person from being or acting as an
15
accountable person, for a period that APRA considers appropriate,
16
if APRA is satisfied that:
17
(a) the person has not complied with his or her accountability
18
obligations under section 37CA; and
19
(b) having regard to the seriousness of the non-compliance, the
20
disqualification is justified.
21
(2) For the purposes of subsection (1), APRA may disqualify a person
22
from being or acting as an accountable person of one or more of
23
the following:
24
(a) a particular ADI;
25
(b) a particular subsidiary of an ADI;
26
(c) a class of ADIs;
27
(d) a class of subsidiaries of ADIs;
28
(e) any ADI;
29
(f) any subsidiary of an ADI.
30
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Written notice
1
(3) APRA must give written notice of a disqualification to the person
2
and the ADI.
3
(4) A disqualification takes effect on the day specified in the notice,
4
which must be not earlier than 7 days after it is signed.
5
(5) Before disqualifying a person, APRA must give written notice to:
6
(a) the person; and
7
(b) the ADI;
8
giving each of them an opportunity to make submissions on the
9
matter.
10
(6) If a submission is made to APRA in response to the notice, APRA
11
must have regard to the submission and may discuss any matter
12
contained in the submission with such persons as it considers
13
appropriate for the purpose of assessing the truth of the matter.
14
(7) A notice given under subsection (5) to an accountable person and
15
an ADI must state that any submissions made in response to the
16
notice may be discussed by APRA with any other persons as
17
mentioned in subsection (6).
18
(8) Part VI applies to a decision by APRA under this section to
19
disqualify a person.
20
37JA APRA may vary or revoke a disqualification
21
(1) APRA may vary or revoke a disqualification made under
22
section 37J on its own initiative or on application by a person
23
disqualified under that section.
24
(2) A variation or revocation of a disqualification takes effect on the
25
day on which it is made.
26
(3) APRA must give the person written notice of:
27
(a) a variation or revocation of a disqualification; or
28
(b) if the person applied for a disqualification to be varied or
29
revoked--a refusal to vary or revoke the disqualification.
30
(4) Part VI applies to a decision by APRA under this section to:
31
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(a) vary a disqualification; or
1
(b) refuse to vary or revoke a disqualification.
2
37JB Self-incrimination
3
To avoid doubt, subsection 52F(2) does not apply to APRA's
4
consideration of whether to make a decision under section 37J or
5
37JA.
6
37JC Allowing a person disqualified by APRA to act as an
7
accountable person
8
(1) An ADI, or a subsidiary of an ADI, contravenes this subsection if:
9
(a) a person is disqualified under section 37J; and
10
(b) the person is or acts as an accountable person of the ADI or
11
subsidiary; and
12
(c) the person is disqualified from being or acting as an
13
accountable person in the ADI or subsidiary; and
14
(d) the ADI or subsidiary allows the person to be or act as an
15
accountable person.
16
Fault-based offence
17
(2) An ADI, or a subsidiary of an ADI, commits an offence if it
18
contravenes subsection (1).
19
Penalty: 250 penalty units.
20
Strict liability offence
21
(3) An ADI, or a subsidiary of an ADI, commits an offence of strict
22
liability if it contravenes subsection (1).
23
Penalty: 60 penalty units.
24
Division 7--Miscellaneous
25
37K General administration of this Part
26
APRA has the general administration of this Part.
27
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37KA Indemnifying ADIs and accountable persons
1
(1) A related body corporate of an ADI must not (whether by
2
agreement or by making a payment and whether directly or through
3
an interposed entity):
4
(a) indemnify the ADI against the consequences of breaching an
5
obligation under this Part; or
6
(b) pay, or agree to pay, a premium for a contract insuring the
7
ADI against the consequences of breaching an obligation
8
under this Part.
9
(2) An ADI, or a related body corporate of an ADI, must not (whether
10
by agreement or by making a payment and whether directly or
11
through an interposed entity):
12
(a) indemnify a person who is or was an accountable person of
13
the ADI against the consequences of breaching an obligation
14
under this Part; or
15
(b) pay, or agree to pay, a premium for a contract insuring such a
16
person against the consequences of breaching an obligation
17
under this Part.
18
(3) This section does not apply to a liability for legal costs.
19
37KB Causes of action not created
20
This Part does not have the effect of creating a cause of action that
21
would not have existed if this Part had not been enacted.
22
37KC Review of operation of Part
23
(1) The Minister must cause a review of the operation of this Part to be
24
undertaken.
25
(2) The review must:
26
(a) start 3 years after the commencement of this section; and
27
(b) be completed within 6 months.
28
(3) The Minister must cause a written report about the review to be
29
prepared.
30
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(4) The Minister must cause a copy of the report to be laid before each
1
House of the Parliament within 15 sitting days of that House after
2
the Minister receives the report.
3
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Part 2--Other amendments
1
Australian Prudential Regulation Authority Act 1998
2
2 Subsection 56(1) (after paragraph (ca) of the definition of
3
protected document)
4
Insert:
5
; or (cb) a person in relation to whom information is, or was, required
6
to be given under Part IIAA of the Banking Act 1959;
7
3 Subsection 56(1) (after paragraph (ca) of the definition of
8
protected information)
9
Insert:
10
; or (cb) a person in relation to whom information is, or was, required
11
to be given under Part IIAA of the Banking Act 1959;
12
4 Paragraph 56(2)(c)
13
Omit "or (7C)", substitute ", (7C), (7D), (7E) or (7F)".
14
5 After subsection 56(7C)
15
Insert:
16
(7D) It is not an offence if:
17
(a) the disclosure of protected information or the production of a
18
protected document is to an ADI (within the meaning of the
19
Banking Act 1959); and
20
(b) the information, or the information contained in the
21
document, as the case may be, is information contained in the
22
register kept under section 37H of the Banking Act 1959.
23
Note:
A defendant bears an evidential burden in relation to the matters in
24
subsection (7D) (see subsection 13.3(3) of the Criminal Code).
25
(7E) It is not an offence if:
26
(a) the disclosure of protected information or the production of a
27
protected document is to an individual; and
28
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(b) the information, or the information contained in the
1
document, as the case may be, is only personal information
2
about the individual; and
3
(c) the information, or the information contained in the
4
document, as the case may be, is information contained in the
5
register kept under section 37H of the Banking Act 1959.
6
Note:
A defendant bears an evidential burden in relation to the matters in
7
subsection (7E) (see subsection 13.3(3) of the Criminal Code).
8
(7F) It is not an offence if:
9
(a) the disclosure of protected information or the production of a
10
protected document is by APRA; and
11
(b) the information, or the information contained in the
12
document, as the case may be, is information that discloses:
13
(i) whether a person is disqualified under section 37J of the
14
Banking Act 1959; or
15
(ii) a decision made under Subdivision C of Division 6 of
16
Part IIAA of that Act, or the reasons for such a decision.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
subsection (7F) (see subsection 13.3(3) of the Criminal Code).
19
6 Paragraph 56(12)(a)
20
Omit "and (7C)", substitute ", (7C), (7D), (7E) and (7F)".
21
Banking Act 1959
22
7 After paragraph 2A(d)
23
Insert:
24
(e) providing for heightened accountability for banking directors
25
and senior executives through the Banking Executive
26
Accountability Regime; and
27
8 Subsection 5(1)
28
Insert:
29
accountable person has the meaning given by sections 37BA and
30
37BB.
31
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9 Subsection 5(1) (at the end of the definition of direction
1
under this Act)
2
Add:
3
; (h) section 37DB.
4
10 Subsection 5(1)
5
Insert:
6
large ADI means an ADI of a kind determined under
7
paragraph 37G(3)(a).
8
medium ADI means an ADI of a kind determined under
9
paragraph 37G(3)(b).
10
non-ADI holding company, of another body corporate, means a
11
body corporate (other than an ADI) of which the other body
12
corporate is a subsidiary.
13
remuneration, of an accountable person, includes the meaning
14
given by subsection 37E(3).
15
small ADI means an ADI of a kind determined under
16
paragraph 37G(3)(c).
17
variable remuneration has the meaning given by section 37EA.
18
11 After subsection 11AF(1AB)
19
Insert:
20
(1AC) Without limiting the prudential matters in relation to which APRA
21
may determine a standard, a standard may provide for matters
22
relating to Part IIAA (the Banking Executive Accountability
23
Regime).
24
12 Paragraphs 11CG(1)(b) and (2)(a)
25
Omit "or 29", substitute ", 29 or 37DB".
26
13 Subsection 11CG(2A)
27
Omit "or 29", substitute ", 29 or 37DB".
28
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Treasury Laws Amendment (Banking Executive Accountability and
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14 Section 37KC
1
Repeal the section.
2
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Part 3--Application of amendments
1
15 Requirement to register
2
If, immediately before the commencement of Part IIAA of the Banking
3
Act 1959 as amended by this Act, a person held a position, in or relating
4
to an ADI or a subsidiary of an ADI, that causes the person on that
5
commencement to be an accountable person of that ADI or subsidiary,
6
paragraph 37DA(1)(a) of that Act as so amended does not apply in
7
relation to that person until the end of the period of 90 days after that
8
commencement.
9
16 Deferral of variable remuneration
10
(1)
Division 4 of Part IIAA of the Banking Act 1959 as inserted by this Act
11
applies in relation to the variable remuneration of an accountable person
12
only if the decision granting the accountable person the variable
13
remuneration was made on or after 1 January 2019.
14
(2)
Despite subitem (1), if an accountable person's variable remuneration is
15
payable under a contract entered into before the day this Act received
16
the Royal Assent, Division 4 of Part IIAA of the Banking Act 1959 as
17
inserted by this Act does not apply in relation to the variable
18
remuneration until 1 January 2020.
19
(3)
Despite subitem (1), if:
20
(a) an accountable person's variable remuneration is payable
21
under a contract entered into before the commencement of
22
Part IIAA of the Banking Act 1959 as inserted by this Act;
23
and
24
(b) apart from this subitem, the application of Division 4 of that
25
Part in relation to the variable remuneration would result in
26
an acquisition of property (within the meaning of
27
paragraph 51(xxxi) of the Constitution) from a person
28
otherwise than on just terms (within the meaning of that
29
paragraph);
30
that Division does not apply in relation to the variable remuneration to
31
the extent that it would result in such an acquisition.
32
Note:
Because this subitem prevents Division 4 of Part IIAA of the Banking Act 1959 from
33
giving rise to such an acquisition of property in relation to variable remuneration
34
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payable under such a contract, compensation will not be payable under section 69E of
1
that Act.
2
17 Accountability statements and accountability maps
3
(1)
APRA may, by legislative instrument, determine, in relation to
4
accountability statements and accountability maps mentioned in
5
section 37F of the Banking Act 1959 as inserted by this Act, transitional
6
requirements applying during the period (the transition period) of 18
7
months after the commencement of Part IIAA of the Banking Act 1959
8
as so inserted.
9
(2)
Compliance during the transition period with those transitional
10
requirements, to the extent that they relate to accountability statements,
11
is taken, for the purposes of the Banking Act 1959, to be compliance
12
with paragraph 37F(1)(a) of that Act as inserted by this Act.
13
(3)
Compliance during the transition period with those transitional
14
requirements, to the extent that they relate to accountability maps, is
15
taken, for the purposes of the Banking Act 1959, to be compliance with
16
paragraph 37F(1)(b) of that Act as inserted by this Act.
17
(4)
This item does not limit the ways paragraph 37F(1)(a) or (b) of the
18
Banking Act 1959 as inserted by this Act may be complied with during
19
the transition period.
20
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Schedule 2--Examination powers
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2
Banking Act 1959
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1 Subsection 5(1)
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Insert:
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investigator means a person APRA appoints under
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subsection 13(4), 13A(1) or 61(1).
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lawyer means a duly qualified legal practitioner and, in relation to
8
a person, means such a practitioner acting for the person.
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2 Subsection 52F(1)
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Omit "to APRA", substitute ", produce a book, account or document or
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sign a record".
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3 Subsection 52F(2)
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After "the information given", insert ", the record signed or the book,
14
account or document produced".
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4 Paragraph 52F(2)(a)
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Omit "before giving the information", substitute "before complying
17
with the requirement".
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5 Paragraph 52F(2)(a)
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After "claims that giving the information", insert ", signing the record
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or producing the book, account or document".
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6 Paragraph 52F(2)(b)
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After "giving the information", insert ", signing the record or producing
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the book, account or document".
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7 Part VII (heading)
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Repeal the heading, substitute:
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Part VII--Financial records
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8 After section 60
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Insert:
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Part VIII--Powers of APRA
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Division 1--Investigations
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9 After section 61
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Insert:
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61A Investigator may require production of books etc.
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(1) If an investigator reasonably believes that a person has custody or
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control of any books, accounts or documents relevant to the
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investigator's investigation, the investigator may, by written notice
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given to the person, require the person to produce any or all of the
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books, accounts or documents to the investigator.
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(2) A person commits an offence if he or she refuses or fails to comply
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with a requirement under this section.
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Penalty: 30 penalty units.
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61B Concealing books, accounts or documents relevant to
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investigation
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A person commits an offence if:
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(a) the person knows that an investigator is investigating, or is
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about to investigate, a matter; and
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(b) the person:
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(i) conceals, destroys, mutilates or alters a book, account or
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document relating to the matter; or
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(ii) if a book, account or document relating to the matter is
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in a particular State or Territory--takes or sends the
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book, account or document out of that State or Territory
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or out of Australia; and
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(c) the person intended that the investigation or proposed
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investigation would be delayed or obstructed as a result of
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that conduct.
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Penalty: Imprisonment for 2 years.
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Division 2--Examinations
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61C Notice requiring appearance for examination
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If an investigator reasonably believes or suspects that a person (the
7
examinee) can give information relevant to the investigator's
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investigation, the investigator may, by written notice given to the
9
examinee, require the examinee:
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(a) to give the investigator all reasonable assistance in
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connection with the investigation; and
12
(b) to appear before the investigator for examination.
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Note:
Failure to comply with a requirement made under this subsection is an
14
offence (see section 61G).
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61D Conduct of examinations
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(1) The investigator may examine the examinee on oath or affirmation
17
and may, for that purpose:
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(a) require the examinee to either take an oath or make an
19
affirmation; and
20
(b) administer an oath or affirmation to the examinee.
21
Note:
Failure to comply with a requirement made under this subsection is an
22
offence (see section 61G).
23
(2) The oath or affirmation to be taken or made by the examinee for
24
the purposes of the examination is an oath or affirmation that the
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statements that the examinee will make will be true.
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(3) The investigator may require the examinee to answer a question
27
that is put to the examinee at the examination and is relevant to a
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matter that the investigator is investigating, or is to investigate.
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Note:
Failure to comply with a requirement made under this subsection is an
30
offence (see section 61G).
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(4) The examiner may make an audio, or audio-visual, recording of all
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or any part of the examination.
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61E Who may be present at examinations
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(1) The examination must take place in private.
4
(2) The following people may be present at the examination:
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(a) the investigator;
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(b) the examinee;
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(c) the examinee's lawyer;
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(d) an APRA staff member approved by APRA to be present;
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(e) a person directed by the investigator to be present.
10
(3) A person commits an offence if the person:
11
(a) is present at an examination; and
12
(b) is not a person mentioned in subsection (2).
13
Penalty: 30 penalty units.
14
(4) The examinee's lawyer may, at such times during the examination
15
as the investigator determines, address the investigator and
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examine the examinee about matters about which the investigator
17
has examined the examinee.
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(5) The investigator may require a person to stop addressing the
19
investigator or examining the examinee if, in the investigator's
20
opinion, the person is trying to obstruct the examination by
21
exercising rights under subsection (4).
22
Note:
Failure to comply with a requirement made under this subsection is an
23
offence (see section 61G).
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61F Record of examination
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Written record of statements
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(1) The investigator must cause a written record (including a transcript
27
of an audio, or audio-visual, recording) to be made of statements
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made at the examination.
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(2) The investigator may require the examinee to read the written
1
record, or to have it read to him or her, and may require him or her
2
to sign it.
3
Note:
Failure to comply with a requirement made under this subsection is an
4
offence (see section 61G).
5
Copies of record
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(3) The investigator must give a copy of a written record to the
7
examinee, without charge, but subject to such conditions (if any) as
8
the investigator imposes.
9
Use of copies
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(4) If the investigator gives a copy of a written record to a person
11
under subsection (3) subject to conditions, the person, or any other
12
person who has possession, custody or control of the copy or a
13
copy of it, must comply with the conditions.
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Penalty: Imprisonment for 6 months.
15
61G Offences
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A person commits an offence if he or she refuses or fails to comply
17
with a requirement under this Division.
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Penalty: 30 penalty units.
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Division 3--Evidentiary use of certain material
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61H Statements made at an examination--proceedings against
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examinee
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Admissibility of statements made at examination
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(1) Subject to this section, a statement that a person makes at an
24
examination of the person is admissible in evidence against the
25
person in a proceeding.
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Self-incrimination exception
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(2) The statement is not admissible if the statement is not admissible in
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evidence against the person under section 52F.
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Irrelevant statement exception
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(3) The statement is not admissible if it is not relevant to the
5
proceeding and the person objects to the admission of evidence of
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the statement.
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Related statement exception
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(4) The statement (the subject statement) is not admissible if:
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(a) it is qualified or explained by some other statement made at
10
the examination; and
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(b) evidence of the other statement is not tendered in the
12
proceeding; and
13
(c) the person objects to the admission of evidence of the subject
14
statement.
15
Legal professional privilege exception
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(5) The statement is not admissible if:
17
(a) it discloses matter in respect of which the person could claim
18
legal professional privilege in the proceeding if
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subsection (1) did not apply in relation to the statement; and
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(b) the person objects to the admission of evidence of the
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statement.
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Joint proceedings
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(6) Subsection (1) applies in relation to a proceeding against a person
24
even if it is heard together with a proceeding against another
25
person.
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Record is prima facie evidence
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(7) If a written record of an examination of a person is signed by the
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person under subsection 61F(2), or is authenticated as mentioned in
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subsection 290(7) of the Superannuation Industry (Supervision)
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Act 1993, the record is, in a proceeding, prima facie evidence of
1
the statements it records.
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Admissibility of other evidence
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(8) This Division does not limit or affect the admissibility in the
4
proceedings of other evidence of statements made at the
5
examination.
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61J Statements made at an examination--other proceedings
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Admissibility of absent witness evidence
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(1) If direct evidence by a person (the absent witness) of a matter
9
would be admissible in a proceeding, a statement that the absent
10
witness made at an examination of the absent witness and that
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tends to establish that matter is admissible in the proceedings as
12
evidence of that matter in accordance with subsection (2).
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Requirement for admissibility
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(2) The statement is admissible:
15
(a) if it appears to the court or tribunal that:
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(i) the absent witness is dead or is unfit, because of
17
physical or mental incapacity, to attend as a witness;
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(ii) the absent witness is outside the State or Territory in
19
which the proceeding is being heard and it is not
20
reasonably practicable to secure his or her attendance;
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or
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(iii) all reasonable steps have been taken to find the absent
23
witness but he or she cannot be found; or
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(b) if it does not so appear to the court or tribunal--unless
25
another party to the proceeding requires the party tendering
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evidence of the statement to call the absent witness as a
27
witness in the proceeding and the tendering party does not so
28
call the absent witness.
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61K Weight of evidence under section 61J
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(1) If evidence of a statement made by a person at an examination of
31
the person is admitted under section 61J in a proceeding, in
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deciding how much weight (if any) to give to the statement as
1
evidence of a matter, regard is to be had to:
2
(a) the length of period between the statement and the matter to
3
which the statement relates; and
4
(b) any reason the person may have had for concealing or
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misrepresenting a material matter; and
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(c) any other circumstances from which it is reasonable to draw
7
an inference about the accuracy of the statement.
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(2) If the person is not called as a witness in the proceeding:
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(a) evidence that would, if the person had been so called, have
10
been admissible in the proceeding for the purpose of
11
destroying or supporting his or her credibility is so
12
admissible; and
13
(b) evidence is admissible to show that the statement is
14
inconsistent with another statement that the person has made
15
at any time.
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(3) However, evidence of a matter is not admissible under this section
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if, had the person been called as a witness in the proceeding and
18
denied the matter in cross-examination, evidence of the matter
19
would not have been admissible if adduced by the cross-examining
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party.
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61L Objection to admission of statements made at examination
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Notice of intention to apply to admit evidence and statements
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(1) A party (the adducing party) to proceedings may, not less than 14
24
days before the first day of the hearing of the proceeding, give to
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another party to the proceeding written notice that the adducing
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party:
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(a) will apply to have admitted in evidence in the proceeding
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specified statements made at an examination; and
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(b) for that purpose, will apply to have evidence of those
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statements admitted in the proceeding.
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Notice to set out etc. statements
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(2) A notice under subsection (1) must set out, or be accompanied by
2
writing that sets out, the specified statements.
3
Notice of objection
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(3) Within 14 days after a notice is given under subsection (1), the
5
other party may give to the adducing party a written notice:
6
(a) stating that the other party objects to specified statements
7
being admitted in evidence in the proceeding; and
8
(b) specifies, in relation to each of those statements, the grounds
9
of objection.
10
Extension of objection period
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(4) The period prescribed by subsection (3) may be extended by the
12
court or tribunal or by agreement between the parties concerned.
13
Notice etc. to be given to court or tribunal
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(5) On receiving a notice given under subsection (3), the adducing
15
party must give to the court or tribunal a copy of:
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(a) the notice under subsection (1) and any writing that
17
subsection (2) requires to accompany that notice; and
18
(b) the notice under subsection (3).
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Action by court or tribunal
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(6) If subsection (5) is complied with, the court or tribunal may either:
21
(a) determine the objections as a preliminary point before the
22
hearing of the proceeding begins; or
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(b) defer determination of the objections until the hearing.
24
Right to object to admission of statement
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(7) If a notice has been given in accordance with subsections (1) and
26
(2), the other party is not entitled to object at the hearing of the
27
proceeding to a statement specified in the notice being admitted in
28
evidence in the proceedings, unless:
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(a) the other party has, in accordance with subsection (3),
1
objected to the statement being so admitted; or
2
(b) the court or tribunal gives the other party leave to object to
3
the statement being so admitted.
4
61M Copies of, or extracts from, certain books, accounts and
5
documents
6
(1) A copy of, or an extract from, a book, account or document to
7
which subsection 13(1), 13B(1), 61(2), 61A(1) or 62(1) applies, is
8
admissible in evidence in a proceeding as if the copy was the
9
original book, account or document or the extract were the relevant
10
part of original book, account or document.
11
(2) A copy of, or an extract from, a book, account or document is not
12
admissible in evidence under subsection (1) unless it is proved that
13
the copy or extract is a true copy of the book, account or document,
14
or of the relevant part of the book, account or document.
15
(3) For the purposes of subsection (2), a person who has compared:
16
(a) a copy of a book, account or document with the book,
17
account or document; or
18
(b) an extract from a book, account or document, with the
19
relevant part of the book, account or document;
20
may give evidence, either orally or by an affidavit or statutory
21
declaration, that the copy or extract is a true copy of the book,
22
account or document, or relevant part of the book, account or
23
document.
24
61N Report under section 61
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Subject to section 61P, if a copy of a report under subsection 61(1)
26
purports to be certified by APRA as a true copy of such a report,
27
the copy is admissible in a proceeding (other than a criminal
28
proceeding) as prima facie evidence of any facts or matters that the
29
report states an investigator to have found to exist.
30
61P Exceptions to admissibility of report
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(1) If a party to a proceeding tenders a copy of a report as evidence
32
against another party, the copy is not admissible under section 61N
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in the proceeding as evidence against the other party unless the
1
court or tribunal is satisfied that:
2
(a) a copy of the report has been given to the other party; and
3
(b) the other party, and the other party's lawyer, have had a
4
reasonable opportunity to examine that copy and to take its
5
contents into account in preparing the other party's case.
6
(2) Before or after the copy tendered in evidence is admitted in
7
evidence, the other party may apply to cross-examine, in relation to
8
the report, a specified person who, or 2 or more specified persons
9
each of whom:
10
(a) was concerned in preparing the report or making a finding
11
about a fact or matter that the report states the investigator to
12
have found to exist; or
13
(b) whether or not pursuant to a requirement made under this
14
Part, gave information, or produced a book, account or
15
document, on the basis of which, or on the basis of matters
16
including which, such a finding was made.
17
(3) The court or tribunal must grant an application made under
18
subsection (2) unless it considers that, in all the circumstances, it is
19
not appropriate to do so.
20
(4) The court or tribunal must refuse to admit the copy, or must treat
21
the copy as not having been admitted, if:
22
(a) the court or tribunal grants the application or applications
23
made under subsection (2); and
24
(b) one or more persons to whom the application or any of the
25
applications relates:
26
(i) are unavailable; or
27
(ii) do not attend to be cross-examined in relation to the
28
report; and
29
(c) the court or tribunal is of the opinion that to admit the copy
30
under section 61N in the proceeding as evidence against the
31
other party without the other party having the opportunity to
32
cross-examine the other person or persons would unfairly
33
prejudice the other party.
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61Q Material otherwise admissible
1
Nothing in this Division renders evidence inadmissible in a
2
proceeding in circumstances where it would have been admissible
3
in that proceeding if this Division had not been enacted.
4
Division 4--Information
5
10 After section 62
6
Insert:
7
Division 5--Miscellaneous
8
62AA Legal professional privilege
9
(1) This section applies if:
10
(a) under this Act, a person requires a lawyer;
11
(i) to give information; or
12
(ii) to produce a book, account or document; and
13
(b) either:
14
(i) giving the information would involve disclosing; or
15
(ii) the book, account or document contains;
16
a privileged communication made by, or on behalf of or to
17
the lawyer in his or her capacity as a lawyer.
18
(2) The lawyer is entitled to refuse to comply with the requirement
19
unless:
20
(a) if the person to whom, or by or on behalf of whom, the
21
communication was made is a body corporate that is under
22
administration or is being would up--the administrator or the
23
liquidator of the body; or
24
(b) otherwise--the person to whom, or by or on behalf of whom,
25
the communication was made;
26
consents to the lawyer complying with the requirement.
27
(3) If the lawyer so refuses, he or she must, as soon as practicable, give
28
to the person who made the requirement a written notice setting
29
out:
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(a) if the lawyer knows the name of the person to whom, or by or
1
on behalf of whom, the communication was made--that
2
name and address; and
3
(b) if subparagraph (1)(a)(i) applies and the communication was
4
made in writing--sufficient particulars to identify the
5
document containing the communication; and
6
(c) if subparagraph (1)(a)(ii) applies--sufficient particulars to
7
identify the book, account or document, or the part of the
8
book, account or document, containing the communication.
9
(4) A person commits an offence if he or she refuses or fails to comply
10
with a requirement under this section.
11
Penalty: 30 penalty units.
12
62AB Powers of Court relating to non-compliance with this Act
13
(1) If APRA or an investigator is satisfied that a person has, without
14
reasonable excuse, failed to comply with a requirement made under
15
this Act, APRA or the investigator may by writing certify the
16
failure to the Federal Court of Australia.
17
(2) If APRA or the investigator certifies the failure under
18
subsection (2), the Federal Court of Australia may inquire into the
19
case and may order the person to comply with the requirement as
20
specified in the order.
21
11 Before section 62A
22
Insert:
23
Part IX--Miscellaneous
24
25
12 Application of amendments
26
The amendments made by this Schedule apply in relation to
27
investigations that commence on or after the commencement of this
28
Schedule.
29