Banking Sector Legislation Amendment Regulation 2012 (No 1) [Select Legislative Instrument 2012 No 319] [F2012L02397]-Concluded matters [2013] AUSStaCSDLM 196 (16 May 2013)

• Banking Sector Legislation Amendment Regulation 2012 (No. 1) [Select Legislative Instrument 2012 No. 319] [F2012L02397]
• (a) Commencement
• (b) No information regarding consultation

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Banking Sector Legislation Amendment Regulation 2012 (No. 1) [Select Legislative Instrument 2012 No. 319] [F2012L02397]

Purpose	Amends the principal regulations and the First Home Saver Accounts Regulations 2008 to specify conditions for a number of bank accounts or deposits and First Home Saver Accounts to become unclaimed moneys
Last day to disallow	15 May 2013
Authorising legislation	Banking Act 1959; and First Home Saver Accounts Act 2008
Department	Treasury

ISSUES:

(a) Commencement

The instrument inserts into the banking regulations new regulation 20, which specifies accounts and conditions relating to those accounts for the purposes of subsection 69(1B) of the Banking Act 1959. Subsection 69(1B) is scheduled to commence on 1 July 2013. While the committee understands that the making of instruments prior to the commencement of the relevant empowering provision, as in this case, is authorised by section 4 of the Acts Interpretation Act 1901 (the AIA), that section also sets out a number of conditions that must be met. The ES that accompanies the instrument does not address whether these conditions are relevant and, if so, have been met in this case [the committee sought further information from the Treasurer].

(b) No information regarding consultation

Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument, particularly where that instrument is likely to have an effect on business. Section 18, however, provides that in some circumstances such consultation may be unnecessary or inappropriate. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (section 26). With reference to these requirements, the committee notes that the ES accompanying the instrument contains no reference to consultation [the committee sought further information from the Treasurer and requested that the ES be updated in accordance with the requirements of the Legislative Instruments Act 2003].

PARLIAMENTARY SECRETARY'S RESPONSE:

The Parliamentary Secretary to the Treasurer responded, advising that, in relation to issue (a), regulations 20 and 21 did not rely on section 4 of the AIA. The regulations were made for the purposes of subsections 69(1B) and 69(1E) of the Banking Act 1959, which were introduced by Item 4 of Schedule 1 to the Treasury Legislation Amendment (Unclaimed Money and Other Measures) Act 2012 (the TLA Act) and would commence on 1 July 2013. However, item 8 of Schedule 1 of the TLA Act (which commenced on 5 December 2012) had put in place transitional provisions that effectively imposed a supplementary reporting and payment obligation on authorised deposit-taking institutions (ADIs) by reference to the obligations that would have applied had the amendments in items 1 to 4 and 4B of Schedule 1 to the TLA Act commenced on 31 December 2012. Furthermore, any regulations made in accordance with section 4 of the AIA for the purposes of the regulation-making powers conferred by those items (including subsections 69(1B) and (1E)) had taken effect from the date on which the regulations were registered (11 December 2012). Item 8 had therefore given effect to regulations 20 and 21 from 11 December 2012, regardless of the date on which these regulations were expressed to commence. Accordingly, it was not the making of the regulation in itself that conferred or imposed any rights or obligations within the meaning of subsection 4(4) of the AIA.

In relation to issue (b), the parliamentary secretary advised that the Australian Bankers' Association (ABA) and its members were consulted in relation to the proposed regulation. The ABA raised concerns relating to the effect of the proposed amendments on certain bank accounts, including linked accounts, frozen accounts, children's accounts and first home saver accounts, and these were taken into account in the drafting of the regulation. The parliamentary secretary advised that the ES had been amended in accordance with the committee's request.

COMMITTEE RESPONSE:

The committee thanks the parliamentary secretary for his advice and has concluded its interest in the matter.