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Schedule 4—Amendment of the Financial Sector (Business Transfer and Group Restructure) Act 1999

Schedule 4 Amendment of the Financial Sector (Business Transfer and Group Restructure) Act 1999

   

Financial Sector (Business Transfer and Group Restructure) Act 1999

1  Title

After “ to provide for transfers of business between some kinds of financial institutions, ”, insert “ to provide for transfers of shares and other interests in some kinds of financial institutions, ”.

2  Section 1

Omit “ (Business Transfer and Group Restructure) ”, substitute “ (Transfer and Restructure) ”.

Note:       This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).

3  Subsection 4(1)

Insert:

Australian business assets and liabilities , of a body corporate that is a foreign ADI, a foreign general insurer or an eligible foreign life insurance company, means the following:

                     (a)  the assets and liabilities of the body corporate in Australia;

                     (b)  any other rights and liabilities of the body corporate that:

                              (i)  are related to its operations in Australia; and

                             (ii)  if regulations are made for the purposes of this subparagraph—are of a kind specified in those regulations.

4  Subsection 4(1) (definition of certificate of transfer )

Repeal the definition, substitute:

certificate of transfer :

                     (a)  in relation to a voluntary transfer of business—means a certificate issued under section 18; and

                     (b)  in relation to a compulsory transfer of business—means a certificate issued under section 33; and

                     (c)  in relation to a compulsory transfer of shares—means a certificate issued under section 33.

5  Subsection 4(1) (definition of compulsory transfer determination )

Repeal the definition, substitute:

compulsory transfer determination means:

                     (a)  a compulsory transfer of business determination; or

                     (b)  a compulsory transfer of shares determination.

6  Subsection 4(1)

Insert:

compulsory transfer of business determination means a determination under section 25.

compulsory transfer of shares determination means a determination under section 25AA.

eligible foreign life insurance company has the same meaning as in the Life Insurance Act 1995 .

foreign ADI has the same meaning as in the Banking Act 1959 .

foreign general insurer has the same meaning as in the Insurance Act 1973 .

7  Subsection 4(1) (definition of partial transfer )

Repeal the definition, substitute:

partial transfer means a transfer of business described in subsection 8(2).

8  Subsection 4(1) (after paragraph (a) of the definition of receiving body )

Insert:

                    (aa)  in relation to a transfer of shares under Part 4—a body corporate to which shares in another body corporate are to be transferred, or have been transferred under that Part; or

9  Subsection 4(1) (definition of regulated body )

Repeal the definition, substitute:

regulated body means a body corporate that is:

                     (a)  an ADI; or

                     (b)  a life insurance company; or

                     (c)  a general insurer.

10  Subsection 4(1) (definition of regulated business )

Repeal the definition, substitute:

regulated business in relation to a regulated body, means:

                     (a)  for a body that is an ADI—the body’s banking business (within the meaning of the Banking Act 1959 ); or

                     (b)  for a body that is a life insurance company—the body’s life insurance business (within the meaning of the Life Insurance Act 1995 ); or

                     (c)  for a body that is a general insurer—the body’s insurance business (within the meaning of the Insurance Act 1973 ).

11  Subsection 4(1) (definition of related )

Repeal the definition.

12  Subsection 4(1)

Insert:

related body corporate , in relation to a body corporate, means a body corporate that is related to the first-mentioned body, as determined in accordance with section 4A.

relevant group of bodies corporate has the meaning given by section 4B.

13  Subsection 4(1) (definition of total transfer )

Repeal the definition, substitute:

total transfer means a transfer of business described in subsection 8(3).

14  Subsection 4(1) (after paragraph (a) of the definition of transferring body )

Insert:

                    (aa)  in relation to a transfer of shares under Part 4—a body corporate, shares in which are to be transferred, or have been transferred, to another body corporate under that Part; or

15  After section 4

Insert:

4A   Related body corporate

                   For the purposes of this Act, the question whether a body corporate is related to another body corporate is to be determined in the same way as that question is determined for the purposes of the Corporations Act 2001 .

4B   Relevant group of bodies corporate

                   For the purposes of this Act, each of the following constitutes a relevant group of bodies corporate :

                     (a)  a regulated body and its subsidiaries;

                     (b)  an authorised NOHC (within the meaning of the Banking Act 1959 ) and its subsidiaries;

                     (c)  an authorised NOHC (within the meaning of the Insurance Act 1973 ) and its subsidiaries;

                     (d)  a registered NOHC (within the meaning of the Life Insurance Act 1995 ) and its subsidiaries.

16  Paragraph 8(1)(a)

Omit “transfers under Part 3”, substitute “transfers of business under Part 3”.

17  Paragraph 8(1)(b)

Omit “transfers under Part 4”, substitute “transfers of business under Part 4”.

18  Subsection 8(1)

Omit “Either kind of transfer”, substitute “Either kind of transfer of business”.

19  After subsection 8(1)

Insert:

          (1A)  This Act also provides for compulsory transfers of shares in regulated bodies.

20  At the end of subsection 8(4)

Add:

Note:          The regulated bodies making the application cannot be general insurers (see section 10).

21  Paragraph 8(5)(a)

Omit “ compulsory transfer determination ”, substitute “ compulsory transfer of business determination ”.

22  After subsection 8(5)

Insert:

          (5A)  For a compulsory transfer of shares to take effect, APRA must:

                     (a)  make a determination (the compulsory transfer of shares determination ) that there is to be a transfer of shares in a body (the transferring body ) to another body (the receiving body ); and

                     (b)  issue a certificate (the certificate of transfer ) stating that the transfer is to take effect.

The transfer of shares takes effect when the certificate of transfer comes into force.

23  At the end of subsection 9(1)

Add:

Note:          The regulated bodies making the application cannot be general insurers (see section 10).

24  Subsection 11(1)

Omit “approve a transfer of business if APRA considers that:”, substitute “approve a transfer of business if:”.

25  Paragraph 11(1)(a)

Before “application for approval”, insert “APRA considers that”.

26  Paragraph 11(1)(b)

Before “the transfer has been”, insert “APRA considers that”.

27  Paragraph 11(1)(c)

Before “the transfer should be approved”, insert “APRA considers that”.

28  Paragraph 11(1)(d)

Repeal the paragraph, substitute:

                     (d)  where:

                              (i)  the transferring body is established in a State or Territory; and

                             (ii)  the receiving body is established in a State or Territory;

                            APRA has considered whether legislation to facilitate the transfer that satisfies the requirements of section 14 has been enacted in the State or Territory in which the transferring body is established and the State or Territory in which the receiving body is established; and

29  After subsection 11(1)

Insert:

          (1A)  To avoid doubt, APRA may make a determination under this section even if the legislation mentioned in paragraph (1)(d) has not been enacted as mentioned in that paragraph.

30  Section 14

Before “State or Territory legislation referred”, insert “(1)”.

31  At the end of section 14

Add:

             (2)  To avoid doubt, this section is enacted only for the purposes of paragraph 11(1)(d).

Note:          Under that paragraph, in order to make a determination under section 11 where both the transferring body and the receiving body are established in a State or Territory, APRA needs to consider whether legislation satisfying the requirements of this section has been enacted. However, APRA is not prevented from making such a determination if such legislation has not been enacted (see subsection 11(1A)).

32  Paragraph 24(1)(a)

Omit “ compulsory transfer determination ”, substitute “ compulsory transfer of business determination ”.

33  After subsection 24(1)

Insert:

          (1A)  For a compulsory transfer of shares to take effect, APRA must:

                     (a)  make a determination (the compulsory transfer of shares determination ) that there is to be a transfer of shares in a body (the transferring body ) to another body (the receiving body ) (see section 25AA); and

                     (b)  issue a certificate (the certificate of transfer ) stating that the transfer is to take effect (see section 33).

          (1B)  A compulsory transfer of business determination and a compulsory transfer of shares determination are both compulsory transfer determinations .

34  Subsection 24(2)

Omit “the compulsory transfer determination”, substitute “a compulsory transfer determination”.

35  Subsection 24(3)

Omit “The compulsory transfer determination”, substitute “A compulsory transfer determination”.

36  Subsection 24(3)

Omit “the certificate of transfer”, substitute “a certificate of transfer”.

37  Subsection 24(4)

Omit “the certificate of transfer”, substitute “a certificate of transfer for a transfer of shares or for a transfer of business”.

38  Subsection 24(5)

Omit “The transfer of business”, substitute “A transfer of business”.

39  At the end of section 24

Add:

             (6)  A transfer of shares takes effect when the certificate of transfer comes into force (see section 35A).

40  Section 25 (heading)

Repeal the heading, substitute:

25   Compulsory transfer of business determinations

41  Subparagraphs 25(1)(a)(iii) and (iv)

Repeal the subparagraphs, substitute:

                            (iii)  APRA is investigating the affairs of the transferring body, or has appointed a person to investigate the affairs of the transferring body, under subsection 13A(1) of the Banking Act 1959 ; or

                            (iv)  there is a Banking Act statutory manager of the transferring body under the Banking Act 1959 ; or

42  Paragraph 25(1B)(a)

Repeal the paragraph, substitute:

                     (a)  APRA is making, or has made within a reasonable period:

                              (i)  a determination under subsection (1) or (1A) relating to the ADI for the total transfer or partial transfer of its business to a body corporate (the original receiving body ) (whether or not the transfer provided for in that determination has occurred); or

                             (ii)  a determination under section 25AA relating to the ADI for the transfer of the shares in the ADI to a body corporate (also the original receiving body ) (whether or not the transfer provided for in that determination has occurred); and

43  Subparagraph 25(1C)(a)(iii)

Omit “company; and”, substitute “company; or”.

44  At the end of paragraph 25(1C)(a)

Add:

                            (iv)  there is a Life Insurance Act statutory manager of the transferring body under the Life Insurance Act 1995 ; and

45  Subsection 25(1D)

Omit “only the business”, substitute “only business”.

46  After subparagraph 25(1D)(a)(iii)

Insert:

                          (iiia)  there is a Life Insurance Act statutory manager of the transferring body under the Life Insurance Act 1995 ; or

47  After subsection 25(1D)

Insert:

Transfer from a body corporate related to a life insurance company to another body

       (1DA)  APRA may make a written determination that there is to be a total transfer or partial transfer of business from a body corporate that is related to a life insurance company and is not an ADI, general insurer or life insurance company to another body corporate (the transferee ). APRA may make the determination only if:

                     (a)  APRA is making, or has made within a reasonable period:

                              (i)  a determination under subsection (1C) or (1D) relating to the life insurance company for the total transfer or partial transfer of its business to a body corporate (the original receiving body ) (whether or not the transfer provided for in that determination has occurred); or

                             (ii)  a determination under section 25AA relating to the life insurance company for the transfer of the shares in the life insurance company to a body corporate (also the original receiving body ) (whether or not the transfer provided for in that determination has occurred); and

                     (b)  the transferee is the original receiving body or is related to the original receiving body.

48  Subparagraph 25(1E)(a)(iii)

Omit “insurer; and”, substitute “insurer; or”.

49  At the end of paragraph 25(1E)(a)

Add:

                            (iv)  there is an Insurance Act statutory manager of the transferring body under the Insurance Act 1973 ; and

50  Subsection 25(1F)

Omit “only the business”, substitute “only business”.

51  After subparagraph 25(1F)(a)(iii)

Insert:

                          (iiia)  there is an Insurance Act statutory manager of the transferring body under the Insurance Act 1973 ; or

52  After subsection 25(1F)

Insert:

Transfer from a body corporate related to a general insurer to another body

          (1G)  APRA may make a written determination that there is to be a total transfer or partial transfer of business from a body corporate that is related to a general insurer and is not an ADI, general insurer or life insurance company to another body corporate (the transferee ). APRA may make the determination only if:

                     (a)  APRA is making, or has made within a reasonable period:

                              (i)  a determination under subsection (1E) or (1F) relating to the general insurer for the total transfer or partial transfer of its business to a body corporate (the original receiving body ) (whether or not the transfer provided for in that determination has occurred); or

                             (ii)  a determination under section 25AA relating to the general insurer for the transfer of the shares in the general insurer to a body corporate (also the original receiving body ) (whether or not the transfer provided for in that determination has occurred); and

                     (b)  the transferee is the original receiving body or is related to the original receiving body.

53  Paragraph 25(2)(f)

Repeal the paragraph, substitute:

                      (f)  where:

                              (i)  the transferring body is established in a State or Territory; and

                             (ii)  the receiving body is established in a State or Territory;

                            APRA has considered whether legislation to facilitate the transfer that satisfies the requirements of section 14 has been enacted in the State or Territory in which the transferring body is established and the State or Territory in which the receiving body is established; and

54  After subsection 25(2)

Insert:

          (2A)  To avoid doubt, APRA may make a determination under this section even if the legislation mentioned in paragraph (2)(f) has not been enacted as mentioned in that paragraph.

55  After section 25

Insert:

25AA   Compulsory transfer of shares determinations

Transferring body is regulated body

             (1)  APRA may make a written determination that there is to be a transfer of shares in a regulated body to another body corporate. APRA may make the determination only if:

                     (a)  any of the following requirements are met:

                              (i)  if the regulated body is an ADI—the Minister has declared under section 25A that a transfer of shares in the transferring body to the receiving body should occur;

                             (ii)  if the regulated body is an ADI and subparagraph (i) does not apply—APRA is satisfied that any of the conditions in subparagraph 25(1)(a)(i), (ii), (iii), (iv) or (v) have been satisfied;

                            (iii)  if the regulated body is a life insurance company—APRA is satisfied that any of the conditions in subparagraph 25(1C)(a)(i), (ii), (iii) or (iv) have been satisfied;

                            (iv)  if the regulated body is a general insurer—APRA is satisfied that any of the conditions in subparagraph 25(1E)(a)(i), (ii), (iii) or (iv) have been satisfied; and

                     (b)  if the transferring body is an ADI—APRA has considered the interests of depositors of the transferring body (when viewed as a group) and considers that, having regard to their interests, it would be appropriate for the transfer to be made; and

                     (c)  if the transferring body is a life insurance company or general insurer—APRA has considered the interests of policy owners of the transferring body (when viewed as a group) and considers that, having regard to their interests, it would be appropriate for the transfer to be made; and

                     (d)  if the receiving body is an ADI—APRA is satisfied that the transfer is appropriate, having regard to the interests of depositors of the receiving body when viewed as a group; and

                     (e)  if the receiving body is a life insurance company or general insurer—APRA is satisfied that the transfer is appropriate, having regard to the interests of policy owners of the receiving body when viewed as a group; and

                      (f)  the conditions in subsection (3) exist.

Transferring body cannot be foreign body

             (2)  APRA cannot make a determination under this section if the transferring body is any of the following:

                     (a)  a foreign ADI;

                     (b)  a foreign general insurer;

                     (c)  an eligible foreign life insurance company.

Common conditions for making a determination under this section

             (3)   APRA may make a determination under this section only if:

                     (a)  APRA is satisfied that the board of directors of the receiving body has consented to the transfer; and

                     (b)  APRA is satisfied that the transfer is appropriate, having regard to:

                              (i)  the interests of the financial sector as a whole; and

                             (ii)  any other matters that APRA considers relevant; and

                     (c)  either:

                              (i)  the Minister has consented to the transfer; or

                             (ii)  the Minister’s consent to the transfer is not required (see section 29).

Formal requirements for determinations under this section

             (4)  A determination under this section must include particulars of the transfer, including the names of the transferring body and the receiving body.

             (5)  A determination under this section must include a statement of the reasons why the determination has been made.

             (6)  A determination under this section must be signed by an authorised APRA officer.

Determinations under this section are not legislative instruments

             (7)  A determination made under this section is not a legislative instrument.

56  Section 25A

Repeal the section, substitute:

25A   Ministerial declaration that compulsory transfer should occur in relation to ADI

             (1)  The Minister may declare, in writing given to APRA, that:

                     (a)  a transfer of business should occur from a specified ADI to another specified body corporate; or

                     (b)  a transfer of shares in a specified ADI to another specified body corporate should occur; or

                     (c)  either:

                              (i)  a transfer of business should occur from a specified ADI to another specified body corporate; or

                             (ii)  a transfer of shares in a specified ADI to another specified body corporate should occur.

             (2)  A declaration made under subsection (1) is not a legislative instrument.

57  Section 26

Omit “the compulsory transfer determination” (wherever occurring), substitute “a compulsory transfer determination”.

58  Subsection 27(1)

After “paragraph 25(2)(d)”, insert “or 25AA(3)(a)”.

59  Section 28

Before “State or Territory legislation referred”, insert “(1)”.

60  Section 28

After “State or Territory legislation referred to in paragraph 25(2)(f)”, insert “, as that paragraph applies in relation to a compulsory transfer of business”.

61  At the end of section 28

Add:

             (2)  To avoid doubt, this section is enacted only for the purposes of paragraph 25(2)(f).

Note:          Under that paragraph, in order to make a determination under section 25 where both the transferring body and the receiving body are established in a State or Territory, APRA needs to consider whether legislation satisfying the requirements of this section has been enacted. However, APRA is not prevented from making such a determination if such legislation has not been enacted (see subsection 25(2A)).

62  Section 29

Before “The Minister’s”, insert “(1)”.

63  Section 29

Omit “the transfer of business (see paragraph 25(2)(g))”, substitute “a transfer of business (see paragraph 25(2)(g)) or a transfer of shares (see paragraph 25AA(3)(c))”.

64  At the end of section 29

Add:

             (2)  A determination made under paragraph (1)(a) is not a legislative instrument.

             (3)  A determination made under paragraph (1)(b) is a legislative instrument.

65  Subsection 30(1)

Repeal the subsection, substitute:

             (1)  The transferring body or the receiving body, or both of those bodies, may provide APRA with a written statement specifying, or specifying a mechanism for determining, things that are to happen, or that are taken to be the case, in relation to:

                     (a)  in the case of a transfer of business—assets and liabilities that are to be transferred, or in relation to the transfer of business that is to be effected; or

                     (b)  in the case of a transfer of shares—shares that are to be transferred, or in relation to the transfer of shares that is to be effected.

66  Subsection 31(1)

Omit “The compulsory transfer determination”, substitute “A compulsory transfer determination”.

67  Paragraph 31(1)(a)

Omit “transfer of business”, substitute “transfer of business or transfer of shares”.

68  Paragraph 31(1)(b)

Omit “transfer of business”, substitute “transfer of business or transfer of shares”.

69  Section 32

Omit “the compulsory transfer determination”, substitute “a compulsory transfer determination”.

70  Paragraph 33(1)(c)

Omit “paragraph 25(2)(d)”, substitute “paragraph 25(2)(d) or 25AA(3)(a)”.

71  Paragraph 33(2)(b)

Omit “state whether”, substitute “in the case of a transfer of business—state whether”.

72  Paragraph 33(2)(c)

Omit “if it is a partial transfer”, substitute “in the case of a transfer of business that is a partial transfer”.

73  Subsection 33(3)

Repeal the subsection, substitute:

             (3)  The certificate may include provisions specifying, or specifying a mechanism for determining, other things that are to happen, or that are taken to be the case:

                     (a)  in the case of a transfer of business—in relation to assets and liabilities that are to be transferred, or in relation to the transfer of business that is to be effected, whether the transfer is total or partial; or

                     (b)  in the case of a transfer of shares—in relation to shares that are to be transferred, or in relation to the transfer of shares that is to be effected.

74  Section 35 (heading)

Repeal the heading, substitute:

35   Time and effect of compulsory transfer—transfer of business

75  Before subsection 35(1)

Insert:

          (1A)  This section applies if a compulsory transfer of business determination has been made.

76  After section 35

Insert:

35A   Time and effect of compulsory transfer—transfer of shares

             (1)  This section applies if a compulsory transfer of shares determination has been made.

             (2)  When the certificate of transfer comes into force, all the shares in the transferring body, wherever those shares are located, become shares held by the receiving body without any transfer, conveyance or assignment.

             (3)  Furthermore, those shares become shares held by the receiving body free from any trust, liability or other encumbrance.

             (4)  If the certificate includes provisions of a kind referred to in subsection 33(3):

                     (a)  if the provisions specify that particular things are to happen or are taken to be the case—those things are, by force of this section, taken to happen, or to be the case, in accordance with those provisions; and

                     (b)  if the provisions specify a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.

             (5)  If there is an approved section 30 statement in relation to the transfer, then:

                     (a)  if the statement specifies that particular things are to happen or are taken to be the case—those things are, by force of this section, taken to happen, or to be the case, in accordance with the statement; and

                     (b)  if the statement specifies a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.

77  Before subsection 36(1)

Insert:

          (1A)  This section applies if a compulsory transfer of business determination has been made

78  Section 36AA

Repeal the section, substitute:

36AA   Compulsory transfer not ground for denial of obligations

             (1)  This section applies if a body corporate covered by subsection (2) is or was party to a contract, whether the proper law of the contract is:

                     (a)  Australian law (including the law of a State or Territory); or

                     (b)  law of a foreign country (including the law of part of a foreign country).

             (2)  This subsection covers the following:

                     (a)  a body corporate that is, or is proposed to become, a transferring body;

                     (b)  a body corporate that is a member of a relevant group of bodies corporate, if another member of that group is, or is proposed to become, a transferring body.

             (3)  None of the matters mentioned in subsection (4) allows the contract, or a party to the contract (other than the body corporate), to do any of the following:

                     (a)  deny any obligations under the contract;

                     (b)  accelerate any debt under the contract;

                     (c)  close out any transaction relating to the contract;

                     (d)  enforce any security under the contract.

             (4)  The matters are as follows:

                     (a)  an act being done for the purposes of Division 2 or 3, or a certificate of transfer coming into force under Division 3, in connection with the body corporate;

                     (b)  if the body corporate is a member of a relevant group of bodies corporate—an act being done for the purposes of Division 2 or 3, or a certificate of transfer coming into force under Division 3, in connection with another member of the group.

79  At the end of Part 4

Add:

Division 5 Special provisions relating to compulsory transfers of shares

36AC   Application of Division

                   This Division applies in relation to a compulsory transfer of shares under this Part, or a proposed compulsory transfer of shares under this Part.

36AD   Extended meaning of share

                   Treat all of the following things as being a share:

                     (a)  a legal or equitable right or interest in a share;

                     (b)  an interest in a share that is an interest of a kind specified in the regulations.

36AE   Regulations may make special provision in relation to compulsory transfer of shares

             (1)  The regulations may provide in relation to any of the following matters:

                     (a)  the payment to a holder of shares in the transferring body of a purchase price for those shares;

                     (b)  the resolution of disputes involving a holder of shares in the transferring body (including the resolution of such disputes by the Federal Court);

                     (c)  the publication of information relating to the compulsory transfer of shares, or proposed compulsory transfer of shares, by APRA, the transferring body and the receiving body;

                     (d)  the freeing of shares in the transferring body from any trust, liability or other encumbrance when they become shares held by the receiving body;

                     (e)  any matter incidental to:

                              (i)  the compulsory transfer of shares, or proposed compulsory transfer of shares; or

                             (ii)  any of the other matters mentioned in this subsection.

             (2)  The regulations may prescribe penalties, not exceeding 50 penalty units, for offences against the regulations.

             (3)  This section does not limit the regulations that may be made for the purposes of this Act.

80  Section 36A(1)

Repeal the subsection, substitute:

             (1)  This Part deals with proposals by an ADI, general insurer or life insurer (the operating body ) for a restructure arrangement (under Part 5.1 of the Corporations Act 2001 ) that would:

                     (a)  make the operating body a subsidiary of a non-operating holding company ( NOHC ); or

                     (b)  would facilitate compliance by the operating body (or a related body corporate of the operating body) with a requirement under certain directions or prudential standards.

81  Section 36A(3)

Omit “the NOHC”.

82  Paragraph 36B(1)(b)

Repeal the paragraph, substitute:

                     (b)  the arrangement would:

                              (i)  result in the operating body becoming a subsidiary of a NOHC; or

                             (ii)  facilitate compliance by the operating body (or a related body corporate of the operating body) with a requirement covered by subsection (1A).

83  After subsection 36B(1)

Insert:

          (1A)  This subsection covers a requirement under any of the following:

                     (a)  a direction under any of the following:

                              (i)  section 11CA of the Banking Act 1959 ;

                             (ii)  section 104 of the Insurance Act 1973 ;

                            (iii)  section 230B of the Life Insurance Act 1995 ;

                     (b)  a prudential standard mentioned in the definition of prudential requirements in subsection 36C(4) .

84  Subsection 36E(1)

Omit “(for example, the body that is to become the NOHC)”.

85  Subsection 36G(1)

Repeal the subsection, substitute:

             (1)  A restructure instrument included in a restructure approval is an instrument in relation to an operating body that gives relief (as mentioned in subsection (2)) to:

                     (a)  if the restructure approval relates to a restructure arrangement covered by subparagraph 36B(1)(b)(i)—any or all of the following, as specified in the instrument:

                              (i)  the NOHC that is the subject of the restructure approval;

                             (ii)  any body corporate related to that NOHC;

                            (iii)  if the instrument specifies a requirement in Division 1 of Part 2J.1 of the Corporations Act 2001 —any other person involved in complying with the requirement; or

                     (b)  if the restructure approval relates to a restructure arrangement covered by subparagraph 36B(1)(b)(ii)—any or all of the following, as specified in the instrument:

                              (i)  the operating body;

                             (ii)  any body corporate related to the operating body;

                            (iii)  if the instrument specifies a requirement in Division 1 of Part 2J.1 of the Corporations Act 2001 —any other person involved in complying with the requirement.

86  Section 36L

Repeal the section, substitute:

36L   What is an internal transfer certificate?

                   An internal transfer certificate is a certificate, issued by APRA under section 36M for the purpose of giving effect to a restructure arrangement described in a restructure approval, giving effect to:

                     (a)  if the restructure arrangement is covered by subparagraph 36B(1)(b)(i)—the transfer of specified assets and liabilities between any 2 of the following bodies (including a transfer between any 2 subsidiaries of the NOHC that is the subject of the restructure arrangement):

                              (i)  the NOHC;

                             (ii)  the operating body;

                            (iii)  any other subsidiary of the NOHC; or

                     (b)  if the restructure approval relates to a restructure arrangement covered by subparagraph 36B(1)(b)(ii)—the transfer of specified assets and liabilities between any 2 of the following bodies (including a transfer between any 2 related bodies corporate of the operating body):

                              (i)  the operating body;

                             (ii)  a related body corporate of the operating body.

Note:          The assets or liabilities may be specified by reference to a class or classes of assets or liabilities—see subsection 33(3A) of the Acts Interpretation Act 1901 .

87  Paragraphs 37(1)(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  in the case of a transfer of business—a specified asset of the transferring body has become a transferred asset of that receiving body; or

                     (d)  in the case of a transfer of business—a specified liability of the transferring body has become a transferred liability of the receiving body; or

                     (e)  in the case of a transfer of shares—a specified share in the transferring body has become a share held by that receiving body.

88  Section 41(1)

Omit “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, or in relation to the restructure, or the possible restructure, of an ADI and one or more related bodies corporate”, substitute “For the purposes of deciding whether or how to perform or exercise functions or powers under this Act in relation to things mentioned in subsection (1A)”.

89  After subsection 41(1)

Insert:

          (1A)  For the purposes of subsection (1), the things mentioned in this subsection are as follows:

                     (a)  a transfer of business, or a proposed or possible transfer of business, from or to an ADI;

                     (b)  a transfer of shares, or a proposed or possible transfer of transfer of shares in an ADI;

                     (c)  the restructure, or the possible restructure, of an ADI and one or more related bodies corporate.

90  Subsection 41(2)

Omit “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, or in relation to the restructure, or the possible restructure, of a life insurance company and one or more related bodies corporate”, substitute “For the purposes of deciding whether or how to perform or exercise functions or powers under this Act in relation to things mentioned in subsection (3)”.

91  Subsection 41(3)

Repeal the subsection, substitute:

             (3)  For the purposes of subsection (2), the things mentioned in this subsection are as follows:

                     (a)  a transfer of business, or a proposed or possible transfer of business, from or to a life insurance company;

                     (b)  a transfer of shares, or a proposed or possible transfer of transfer of shares in a life insurance company;

                     (c)  the restructure, or the possible restructure, of a life insurance company and one or more related bodies corporate.

             (4)  For the purposes of deciding whether or how to perform or exercise functions or powers under this Act in relation to things mentioned in subsection (5), each of the following provisions:

                     (a)  section 115 of the Insurance Act 1973 ;

                     (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.

             (5)  For the purposes of subsection (4), the things mentioned in this subsection are as follows:

                     (a)  a transfer of business, or a proposed or possible transfer of business, from or to a general insurer;

                     (b)  a transfer of shares, or a proposed or possible transfer of transfer of shares in a general insurer;

                     (c)  the restructure, or the possible restructure, of a general insurer and one or more related bodies corporate.

92  Section 42

Omit “about the business that is to be, or that may be, transferred.”, substitute:

                   about:

                     (a)  in the case of a transfer of business—the business that is to be, or that may be, transferred; or

                     (b)  in the case of a transfer of shares:

                              (i)  the shares that are to be, or that may be, transferred; and

                             (ii)  the business of the transferring body.

93  Subsection 43(4)

Omit “a transfer of business”, substitute “the transfer of business or transfer of shares”.

94  Subsection 43(9)

Omit “a transfer of business (whether voluntary or compulsory),”, substitute “a transfer of business (whether voluntary or compulsory), a transfer of shares,”.

95  Paragraphs 43(9A)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  a transfer of business or transfer of shares under Part 4;

                     (b)  anything done to enable or facilitate a transfer of business or transfer of shares under Part 4 (including an agreement referred to in section 30).

96  After section 43

Insert:

43A   Transfers of Australian regulated business of foreign body

             (1)  This section applies to a transfer of business under Part 3 or 4 from a transferring body to another body if the transferring body is:

                     (a)  a foreign ADI; or

                     (b)  a foreign general insurer; or

                     (c)  an eligible foreign life insurance company.

             (2)  For the purposes of the transfer of business, treat the Australian business assets and liabilities of the transferring body as the entire business of the transferring body.