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Financial Sector (Transfers of Business) Bill 1999

Part 6 Miscellaneous

   

41   Information gathering powers

             (1)  For the purposes of deciding whether or how to perform or exercise functions or powers under this Act in relation to a transfer of business, or a proposed or possible transfer of business, from or to an ADI, each of the following provisions:

                     (a)  section 62 of the Banking Act 1959 ;

                     (b)  any other provision of that Act, or of another Act, prescribed by the regulations;

has effect as if this Act were part of the Act that contains the provision.

             (2)  For the purpose of deciding whether or how to perform or exercise functions or powers under this Act in relation to a transfer of business, or a proposed or possible transfer of business, from or to a life insurance company, each of the following provisions:

                     (a)  section 131, 132 or 133 of the Life Insurance Act 1995 ;

                     (b)  any other provision of that Act, or of another Act, prescribed by the regulations;

has effect as if this Act were part of the Act that contains the provision.

42   Compulsory transfer—APRA may provide information to receiving body

                   APRA may, in connection with a compulsory transfer, or a proposed or possible compulsory transfer, provide information (including personal information or confidential commercial information) to the receiving body, or to the possible or proposed receiving body, about the business that is to be, or that may be, transferred.

Note:          Subsection 56(9) of the Australian Prudential Regulation Authority Act 1998 allows an officer of APRA who (on APRA’s behalf) provides information to a body under this section to impose conditions to be complied with by the body in relation to that information.

43   Relationship of Act with other laws etc.

             (1)  Subject to subsections (4), (5), (6), (7), (8), (9) and (10), this Act has effect in spite of anything in any law of the Commonwealth or of a State or Territory, or in any contract, deed, undertaking, agreement or other instrument.

Note:          For the effect of a certificate of transfer, see sections 22 and 35.

             (2)  Subject to subsections (4), (5), (6), (7), (8), (9) and (10), nothing done by or under this Act:

                     (a)  places a receiving body, a transferring body or another person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong; or

                     (b)  places a receiving body, a transferring body or another person in breach of:

                              (i)  any law of the Commonwealth or of a State or Territory; or

                             (ii)  any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or

                     (c)  releases any surety, wholly or partly, from all or any of the surety’s obligations.

             (3)  Without limiting subsection (1), but subject to subsections (4), (5), (6), (7), (8), (9) and (10), if, apart from this Act, the advice or consent of a person would be necessary in a particular respect, the advice is taken to have been obtained or the consent is taken to have been given, as the case requires.

             (4)  The regulations may provide that some or all of the provisions of another Act (not being provisions referred to in subsection (5), (6), (7) or (8)) apply in relation to a transfer of business that takes effect or may take effect under this Act, with the modifications (if any) specified in the regulations. The regulations have effect accordingly. Nothing in this section limits the operation of those provisions (as they have effect subject to any modifications specified in the regulations).

             (5)  Nothing in this Act limits the operation of any of the provisions of the Privacy Act 1988 .

             (6)  Nothing in this Act limits the operation of any of the provisions of the Trade Practices Act 1974 .

             (7)  Nothing in this Act limits the operation of any of the provisions of the Workplace Relations Act 1996 .

             (8)  Nothing in this Act limits the operation of section 63 of the Banking Act 1959 .

             (9)  For the purposes of section 50 and related provisions of the Trade Practices Act 1974 a transfer of business (whether voluntary or compulsory) that takes effect under this Act is taken to be:

                     (a)  to the extent that the transfer is of shares in the capital of a body corporate—an acquisition of the shares by the receiving body; and

                     (b)  to the extent that the transfer is of other assets—an acquisition of those assets by the receiving body.

           (10)  The provisions of this Act and the provisions:

                            (a)    prescribed for the purposes of subsection (4); or

                            (b)    referred to in subsection (5), (6), (7) or (8);

operate independently of each other. In particular, a decision under one of those provisions has effect only for the purpose of that provision, unless express provision is made to the contrary.

44  Compensation for acquisition of property

             (1)  If:

                     (a)  apart from this section, the operation of this Act in relation to a particular receiving body would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the receiving body is liable to pay to the person compensation of a reasonable amount as agreed on between the receiving body and the person. If the receiving body and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the receiving body of such reasonable amount of compensation as the Court determines.

             (2)  Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.

             (3)  In this section:

acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.

45   Review of decisions

                   An application may be made to the Administrative Appeals Tribunal for the review of any of the following decisions:

                     (a)  a decision under section 11 to refuse to approve an application;

                     (b)  a decision under subsection 16(1) to impose conditions;

                     (c)  a decision under subsection 16(3) to refuse to vary or revoke conditions;

                     (d)  a decision under section 18 to refuse to issue a certificate of transfer;

                     (e)  a decision under subsection 20(2) to refuse to approve a statement provided under subsection 20(1);

                      (f)  a decision under subsection 27(2) to refuse to agree to a consent being withdrawn;

                     (g)  a decision under subsection 31(3) to refuse to vary or revoke conditions;

                     (h)  a decision under section 33 to refuse to issue a certificate of transfer.

46   Transfer rules

             (1)  APRA may, in writing, make rules prescribing all matters required or permitted by this Act to be prescribed by transfer rules.

             (2)  Rules made by APRA under subsection (1) are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

47   Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 

       

 

[ Minister’s second reading speech made in—

House of Representatives on 11 March 1999

Senate on 30 March 1999 ]

 

 

(30/99)