FINANCIAL ACCOUNTABILITY REGIME (CONSEQUENTIAL AMENDMENTS) ACT 2023 (NO. 68, 2023)

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FINANCIAL ACCOUNTABILITY REGIME (CONSEQUENTIAL AMENDMENTS) ACT 2023 (NO. 68, 2023) - SCHEDULE 1

Consequential amendments

Part 1 -- Amendments for the start of the financial accountability regime

Australian Prudential Regulation Authority Act 1998

1 Subsection 3(1) (after paragraph (b) of the definition of prudential regulation framework law )

Insert:

(ba) the Financial Accountability Regime Act 2023 ;

(bb) the Financial Accountability Regime (Consequential Amendments) Act 2023 ;

2 Section 48

Omit "Under", substitute "(1) Under".

3 At the end of section 48

Add:

(2) Subsection (1) does not apply to an appointment made under, or for the purposes of, the Financial Accountability Regime Act 2023 .

4 Paragraph 53(1)(d)

Repeal the paragraph, substitute:

(d) amounts of any fees, charges or penalties paid to APRA, on behalf of the Commonwealth, under section 51 or any other law of the Commonwealth except the following:

(i) Part 3A of the Financial Institutions Supervisory Levies Collection Act 1998 ;

(ii) the Financial Accountability Regime Act 2023 ;

5 Subsection 56(1) (after paragraph (cb) of the definition of protected document )

Insert:

or (cc) a person in relation to whom information is, or was, required to be given under the Financial Accountability Regime Act 2023 ;

6 Subsection 56(1) (after paragraph (d) of the definition of protected document )

Insert:

(da) a document given or produced to ASIC under, or for the purposes of, a provision of the Financial Accountability Regime Act 2023 , other than a document given or produced to ASIC by APRA; or

7 Subsection 56(1) (after paragraph (cb) of the definition of protected information )

Insert:

or (cc) a person in relation to whom information is, or was, required to be given under the Financial Accountability Regime Act 2023 ;

8 Subsection 56(1) (after paragraph (d) of the definition of protected information )

Insert:

(da) information given or produced to ASIC under, or for the purposes of, a provision of the Financial Accountability Regime Act 2023 , other than information given or produced to ASIC by APRA; or

9 Paragraph 56(2)(c)

Omit "or (7F)", substitute ", (7F), (7G), (7H), (7J), (7K) or (7L)".

10 After subsection 56(7F)

Insert:

(7G) It is not an offence if:

(a) the disclosure of protected information or the production of a protected document is to an accountable entity (within the meaning of the Financial Accountability Regime Act 2023 ); and

(b) the information, or the information contained in the document, as the case may be, is information contained in the register kept under section 40 of the Financial Accountability Regime Act 2023 .

Note: A defendant bears an evidential burden in relation to the matters in subsection (7G) (see subsection 13.3(3) of the Criminal Code ).

(7H) It is not an offence if:

(a) the disclosure of protected information or the production of a protected document is to an individual; and

(b) the information, or the information contained in the document, as the case may be, is only personal information about the individual; and

(c) the information, or the information contained in the document, as the case may be, is information contained in the register kept under section 40 of the Financial Accountability Regime Act 2023 .

Note: A defendant bears an evidential burden in relation to the matters in subsection (7H) (see subsection 13.3(3) of the Criminal Code ).

(7J) It is not an offence if:

(a) the disclosure of protected information or the production of a protected document is by APRA; and

(b) the information, or the information contained in the document, as the case may be, is information that discloses:

(i) whether a person is disqualified under section 42 of the Financial Accountability Regime Act 2023 ; or

(ii) a decision made under Division 2 of Part 3 of Chapter 3 of that Act (which is about disqualification of accountable persons), or the reasons for such a decision.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7J) (see subsection 13.3(3) of the Criminal Code) .

(7K) It is not an offence if the disclosure of protected information or the production of a protected document by a person is in accordance with section 39 of the Financial Accountability Regime Act 2023 .

Note: A defendant bears an evidential burden in relation to the matters in subsection (7K) (see subsection 13.3(3) of the Criminal Code ).

(7L) It is not an offence if:

(a) the disclosure of protected information or the production of a protected document is by ASIC, for the purposes of the performance of ASIC's functions, or the exercise of ASIC's powers; and

(b) the protected information was disclosed previously to ASIC, or the protected document was produced previously to ASIC, in accordance with section 39 of the Financial Accountability Regime Act 2023 .

Note: A defendant bears an evidential burden in relation to the matters in subsection (7L) (see subsection 13.3(3) of the Criminal Code ).

11 Paragraph 56(12)(a)

Omit "and (7F)", substitute ", (7F), (7G), (7H), (7J), (7K) and (7L)".

12 At the end of subsection 58(4)

Add:

; (d) section 101 or 102 of the Financial Accountability Regime Act 2023 .

13 After paragraph 59(2)(ba)

Insert:

(bb) information about investigations (including joint investigations) conducted by APRA under Division 1 of Part 4 of Chapter 3 of the Financial Accountability Regime Act 2023 during the period;

14 After subsection 59(3)

Insert:

(4) Paragraph (2)(bb) does not authorise the inclusion in the annual report of information with respect to the affairs of a particular person.

Australian Securities and Investments Commission Act 2001

15 Subsection 12A(1)

Omit "Acts".

16 At the end of subsection 12A(1)

Add:

; (m) the Financial Accountability Regime Act 2023 ;

(n) the Financial Accountability Regime (Consequential Amendments) Act 2023 .

17 After subsection 127(6)

Insert:

(7) A person (the officer ) commits an offence if:

(a) the officer is or has been:

(i) a member of ASIC; or

(ii) a staff member; or

(iii) a Commonwealth officer within the meaning of the Crimes Act 1914 ; and

(b) the officer intentionally or recklessly, and directly or indirectly:

(i) discloses information to any person or to a court; or

(ii) produces a document to any person or to a court; and

(c) if subparagraph (b)(i) applies--the information is protected information disclosed to, or obtained by, ASIC for the purposes of a function (a FAR-related function ) conferred on ASIC by:

(i) the Financial Accountability Regime Act 2023 ; or

(ii) the Financial Accountability Regime (Consequential Amendments) Act 2023 ; and

(d) if subparagraph (b)(ii) applies--the document:

(i) is protected information and was given or produced to ASIC for the purposes of a FAR-related function; or

(ii) contains protected information disclosed to, or obtained by, ASIC for the purposes of a FAR-related function; and

(e) the officer acquired the information, or has or had access to the document, as the case may be, in the course of the officer's duties as a member of ASIC, a staff member or a Commonwealth officer within the meaning of the Crimes Act 1914 .

Penalty: Imprisonment for 2 years.

(7A) Subsection (7) does not apply if the disclosure or production constitutes authorised disclosure of the protected information for the purposes of subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

(8) A document is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982 if the document:

(a) is protected information and was given or produced to ASIC; or

(b) contains protected information disclosed to, or obtained by, ASIC;

for the purposes of a function conferred on ASIC by:

(d) the Financial Accountability Regime (Consequential Amendments) Act 2023 .

18 After paragraph 136(1)(da)

Insert:

(db) information about investigations (including joint investigations) conducted by ASIC under Division 1 of Part 4 of Chapter 3 of the Financial Accountability Regime Act 2023 during the period;

19 After subsection 136(2A)

Insert:

(3) Paragraph (1)(db) does not authorise the inclusion in the annual report of information with respect to the affairs of a particular person.

20 In the appropriate position

Insert:

Part 38 -- Transitional provisions relating to the Financial Accountability Regime (Consequential Amendments) Act 2023

340 Application--confidentiality

The amendment of section 12A made by Part 1 of Schedule 1 to the Financial Accountability Regime (Consequential Amendments) Act 2023 , so far as it relates to the definition of protected information in subsection 127(9) of this Act, applies in relation to any use or disclosure of information after the commencement of that Part, whether ASIC obtained the information before or after that commencement.

341 Information to be included in ASIC's annual report

The amendment of section 136 made by Part 1 of Schedule 1 to the Financial Accountability Regime (Consequential Amendments) Act 2023 applies to reports on ASIC's investigations during the financial year ending on 30 June 2024, and later financial years.

Banking Act 1959

21 After subparagraph 9A(2)(b)(ii)

Insert:

(iia) a requirement of the Financial Accountability Regime Act 2023 ;

22 After subparagraph 11AB(2)(a)(ii)

Insert:

(iia) a requirement of the Financial Accountability Regime Act 2023 ;

23 Paragraph 15D(1)(a)

After "the Financial Sector (Collection of Data) Act 2001 ", insert "or the Financial Accountability Regime Act 2023 ".

24 Paragraph 15D(1)(b)

Omit "that Act", substitute "those Acts".

25 At the end of subsection 16B(1)

Add "or the Financial Accountability Regime Act 2023 ".

26 Subparagraph 16BA(6)(a)(i)

Omit "the regulations or the Financial Sector (Collection of Data) Act 2001 ", substitute "the regulations, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ".

27 Section 16C

Omit "this Act or the Financial Sector (Collection of Data) Act 2001 ", substitute "this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ".

28 Paragraph 17(2)(a)

Omit "this Act or the prudential standards", substitute "this Act, the prudential standards or the Financial Accountability Regime Act 2023 ".

29 After subparagraph 20(1)(a)(ii)

Insert:

(iia) the Financial Accountability Regime Act 2023 ; or

30 Section 69BA

Corporations Act 2001

31 After subparagraph 1317AA(5)(c)(iii)

Insert:

(iiia) the Financial Accountability Regime Act 2023 ;

Financial Regulator Assessment Authority Act 2021

32 Subparagraph 40(3)(a)(iv)

Omit "or".

33 At the end of paragraph 40(3)(a)

Add:

(v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023 ; or

Financial Sector (Transfer and Restructure) Act 1999

34 At the end of paragraph 36B(1A)(a)

Add:

(iv) section 64 of the Financial Accountability Regime Act 2023 ;

Insurance Act 1973

35 After subparagraph 15(1)(a)(ii)

Insert:

(iiaa) a requirement of the Financial Accountability Regime Act 2023 ; or

36 After subparagraph 21(1)(a)(ii)

Insert:

(iiaa) a requirement of the Financial Accountability Regime Act 2023 ; or

37 After subparagraph 25(1)(a)(ii)

Insert:

(iia) the Financial Accountability Regime Act 2023 ; or

38 After paragraph 43(2)(a)

Insert:

(aa) has failed to comply with a requirement of the Financial Accountability Regime Act 2023 ; or

39 After subparagraph 44(1)(a)(i)

Insert:

(ia) the person has failed to comply with a requirement of the Financial Accountability Regime Act 2023 ;

40 Paragraph 44(4)(a)

Omit "this Act and the prudential standards", substitute "this Act, the prudential standards and the Financial Accountability Regime Act 2023 ".

41 After subparagraphs 48(1)(a)(i) and (2)(a)(i)

Insert:

(ia) the Financial Accountability Regime Act 2023 ; or

42 At the end of subsection 49(1)

Add "or the Financial Accountability Regime Act 2023 ".

43 Subparagraph 49A(6)(a)(iv)

Omit "this Act or a requirement under the Financial Sector (Collection of Data) Act 2001 ", substitute "this Act, a requirement under the Financial Sector (Collection of Data) Act 2001 or a requirement of the Financial Accountability Regime Act 2023 ".

44 Section 49B

45 After subparagraph 62M(1)(a)(iv)

Insert:

(ivaa) the general insurer has failed to comply with a requirement of the Financial Accountability Regime Act 2023 ; or

46 Subsection 62W(1)

Repeal the subsection, substitute:

(1) None of the matters mentioned in subsection (2) affect:

(a) the continued operation of other Parts of this Act in relation to a general insurer; or

(b) the operation of the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 in relation to a general insurer; or

47 Subsection 62ZOY(1)

Repeal the subsection, substitute:

(1) None of the matters mentioned in subsection (2) affect:

(a) the continued operation of other provisions of this Act in relation to a body corporate; or

(b) the operation of the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 in relation to a body corporate; or

48 Section 129AA

Life Insurance Act 1995

49 Paragraph 21(3)(e)

50 After subparagraph 26(1)(a)(ii)

Insert:

(iia) a requirement of the Financial Accountability Regime Act 2023 ; or

51 After subparagraph 28C(1)(a)(ii)

Insert:

(iiaa) a requirement of the Financial Accountability Regime Act 2023 ; or

52 After paragraph 85(1)(b)

Insert:

(ba) the person has failed to comply with a requirement of the Financial Accountability Regime Act 2023 ; or

53 Paragraph 88(1)(a)

54 Subparagraph 88(3)(a)(i)

55 Section 88A

Omit "this Act or under the Financial Sector (Collection of Data) Act 2001 ", substitute "this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ".

56 Subsection 88B(1)

57 Paragraph 89(2)(a)

58 After paragraph 94(1)(b)

Insert:

(ba) the person has failed to comply with a requirement of the Financial Accountability Regime Act 2023 ; or

59 Paragraph 98(1)(a)

60 Subparagraph 98(3)(a)(i)

61 Section 98A

62 Subsection 98B(1)

63 Paragraph 99(2)(a)

After "this Act", insert "or the Financial Accountability Regime Act 2023 ".

64 Paragraph 125A(2)(c)

65 Subsection 166(1)

Repeal the subsection, substitute:

(1) None of the matters mentioned in subsection (2) affect:

(a) the continued operation of other Parts of this Act in relation to a life company; or

(b) the operation of the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 in relation to a life company; or

66 Subsection 179AY(1)

Repeal the subsection, substitute:

(1) None of the matters mentioned in subsection (2) affect:

(a) the continued operation of other provisions of this Act in relation to a body corporate; or

(b) the operation of the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 in relation to a body corporate; or

67 Paragraph 245(1)(a)

Omit "this Act or the Life Insurance Act 1945 ", substitute "this Act, the repealed Life Insurance Act 1945 or the Financial Accountability Regime Act 2023 ".

68 Subsection 248(2)

National Consumer Credit Protection Act 2009

69 Subsection 5(1) (definition of large ADI )

Omit "has the same meaning as in the Banking Act 1959 ", substitute "means an ADI of a kind determined under subsection (1A)".

70 After subsection 5(1)

Insert:

(1A) The Minister may, by legislative instrument, determine the kinds of ADIs that are large ADIs.

Payment Systems and Netting Act 1998

71 Section 5 (after paragraph (b) of the definition of direction stay provision )

Insert:

(baa) subsection 77(2) of the Financial Accountability Regime Act 2023 ;

72 Section 5 (before paragraph (fc) of the definition of specified provisions )

Insert:

(fca) subsections 77(3) and (4) of the Financial Accountability Regime Act 2023 ;

73 Section 5 (after paragraph (e) of the definition of specified stay provision )

Insert:

(eaa) subsection 77(2) of the Financial Accountability Regime Act 2023 ;

Private Health Insurance (Prudential Supervision) Act 2015

74 After subsection 21(1)

Insert:

(1A) APRA may, in writing, cancel the registration of a private health insurer if APRA is satisfied that the private health insurer has failed to comply with a requirement of the Financial Accountability Regime Act 2023 .

75 Subsections 84(1) and (2)

Omit "or of the Private Health Insurance Act 2007 ", substitute "the Private Health Insurance Act 2007 or the Financial Accountability Regime Act 2023 ".

76 After paragraph 107(2)(c)

Insert:

; and (d) the Financial Accountability Regime Act 2023 .

77 Subsection 107(2) (note 2)

Omit "paragraphs (b) and (c)", substitute "paragraphs (b), (c) and (d)".

78 Paragraph 110(1)(a)

Omit "the Private Health Insurance Act 2007 or the Financial Sector (Collection of Data) Act 2001 ", substitute "the Private Health Insurance Act 2007 , the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ".

79 Subparagraph 110(5)(a)(i)

80 Subsections 111(1) and 112(1)

81 Paragraph 113(2)(a)