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Payment Systems (Regulation) Bill 1998

Part 4 Regulation of purchased payment facilities

   

22   Holder of stored value must be an ADI or be authorised or exempted under this Part

             (1)  A constitutional corporation is guilty of an offence if:

                     (a)  it is the holder of the stored value of a purchased payment facility; and

                     (b)  it is not an authorised deposit-taking institution, within the meaning of the Banking Act 1959 ; and

                     (c)  there is no authority or exemption in force under section 23 or 25 that applies to the corporation and the purchased payment facility.

Penalty:  200 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

             (2)  If a constitutional corporation is the holder of the stored value of a purchased payment facility in circumstances that give rise to the corporation committing an offence against subsection (1), the corporation is guilty of an offence against that subsection in respect of:

                     (a)  the day on which the contravention occurs; and

                     (b)  each subsequent day (if any) on which the contravention continues (including the day of conviction for any such offence or any later day).

Note:          This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

23   Authority to be the holder of the stored value

             (1)  A constitutional corporation may apply to the Reserve Bank for an authority to be the holder of the stored value of a class of purchased payment facilities. The application must comply with the applicable requirements determined under section 27.

             (2)  The Reserve Bank may grant the authority if it is satisfied that the corporation will be able to satisfy its obligations as the holder of the stored value of purchased payment facilities of the relevant class.

             (3)  The grant of the authority is to be by notice in writing given to the corporation.

             (4)  The Reserve Bank may, at any time, by notice in writing given to the corporation:

                     (a)  impose conditions, or additional conditions, on the authority; and

                     (b)  vary or revoke conditions imposed on the authority.

The conditions must be aimed at ensuring the corporation meets its obligations as holder of the stored value of purchased payment facilities of the relevant class.

             (5)  The authority:

                     (a)  comes into force:

                              (i)  unless subparagraph (ii) applies—on the day on which it is granted; or

                             (ii)  if the instrument granting the authority specifies a later day as the day on which it comes into force—on the day so specified; and

                     (b)  continues in force until it is revoked.

             (6)  The Reserve Bank may revoke the authority by notice in writing to the corporation if:

                     (a)  it is no longer satisfied as mentioned in subsection (2); or

                     (b)  it considers that the corporation has contravened a condition of the authority; or

                     (c)  the corporation applies to the Reserve Bank for revocation of the authority; or

                     (d)  the corporation ceases to be the holder of the stored value of any purchased payment facilities of the relevant class.

An application for revocation of the authority must comply with any applicable requirements determined under section 27.

             (7)  If the Reserve Bank:

                     (a)  grants an authority under subsection (2); or

                     (b)  imposes, varies or revokes conditions under subsection (4); or

                     (c)  revokes an authority under subsection (6);

the Reserve Bank must cause notice of that action to be published in the Gazette .

             (8)  Failure to comply with subsection (7) does not affect the validity of the action concerned.

24   Directions on failure to comply with conditions

             (1)  The Reserve Bank may give a direction to a corporation that has been granted an authority under section 23 if the Reserve Bank considers that the corporation has failed to comply with a condition of the authority.

             (2)  The direction is to require the corporation to take specified action, or to refrain from specified action, as the Reserve Bank considers appropriate having regard to the failure.

             (3)  The direction may deal with the time by which, or the period during which, it is to be complied with.

             (4)  The direction is to be given by notice in writing given to the corporation.

             (5)  The corporation is guilty of an offence if:

                     (a)  the corporation does, or fails to do, an act; and

                     (b)  doing, or failing to do, the act results in a contravention of the direction; and

                     (c)  the doing of the act, or the failure to do the act, occurs at a time when;

                              (i)  the authority referred to in subsection (1) is still in force; and

                             (ii)  the corporation is the holder of the stored value of one or more purchased payment facilities of the class to which that authority applies.

Penalty:  50 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

             (6)  If a contravention of the direction occurs in circumstances that give rise to the corporation committing an offence against subsection (5), the corporation is guilty of an offence against that subsection in respect of:

                     (a)  the day on which the contravention occurs; and

                     (b)  each subsequent day (if any) on which the contravention continues (including the day of conviction for any such offence or any later day).

Note:          This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

             (7)  The direction:

                     (a)  comes into force:

                              (i)  unless subparagraph (ii) applies—on the day on which it is given; or

                             (ii)  if the instrument giving the direction specifies a later day as the day on which it comes into force—on the day so specified; and

                     (b)  continues in force until it is revoked.

             (8)  The Reserve Bank may revoke the direction by notice in writing to the corporation if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

25   Exemptions

             (1)  The Reserve Bank may grant a corporation, or corporations included in a class of corporations, an exemption allowing the corporation, or each corporation in the class, to be the holder of the stored value in respect of purchased payment facilities in a particular class even though the corporation is not an authorised deposit-taking institution, within the meaning of the Banking Act 1959 , and does not have an authority under section 23 of this Act that covers those facilities.

             (2)  The Reserve Bank may be acting on its own initiative or pursuant to an application in granting the exemption. An application for an exemption must comply with the applicable requirements determined under section 27.

             (3)  The Reserve Bank may grant the exemption if it is satisfied that the corporation, or each of the corporations in the class, will be able to satisfy the obligations of the holder of the stored value of purchased payment facilities of the relevant class.

             (4)  The exemption is to be granted:

                     (a)  if it applies to a particular corporation—by notice in writing given to the corporation; or

                     (b)  if it applies to a class of corporations—by notice in writing published in the Gazette .

             (5)  The exemption:

                     (a)  comes into force:

                              (i)  unless subparagraph (ii) applies—on the day on which it is given; or

                             (ii)  if the instrument granting the exemption specifies a later day as the day on which it comes into force—on the day so specified; and

                     (b)  continues in force until it is revoked.

             (6)  The Reserve Bank may revoke the exemption if it is no longer satisfied as mentioned in subsection (3). The revocation is to be:

                     (a)  if it applies to a particular corporation—by notice in writing given to the corporation; or

                     (b)  if it applies to a class of corporations—by notice in writing published in the Gazette .

             (7)  If the Reserve Bank:

                     (a)  grants an exemption to a particular corporation under subsection (3); or

                     (b)  revokes an exemption under subsection (6), being an exemption granted to a particular corporation;

the Reserve Bank must cause notice of that action to be published in the Gazette .

             (8)  Failure to comply with subsection (7) does not affect the validity of the action concerned.