Title Financial Sector Reform (Amendments and Transitional Provisions) Bill (No. 1) 1999
Database Bills & Legislation
Long Title a Bill for an Act to amend laws, and to deal with transitional matters, in connection with the reform of the financial sector, and for other purposes
Date 10-03-1999
Source House of Reps
Parl No. 39
Bill Number 99032
Bill Type Government
Portfolio Treasurer's portfolio
Reps Bill Code M
Status Act
System Id legislation/bills/r742_act/0003


Financial Sector Reform (Amendments and Transitional Provisions) Bill (No. 1) 1999
Schedule 2—Amendment of the Banking Act 1959

  

1  Subsection 5(1) (definition of bank)

Repeal the definition.

2  Subsection 5(1) (definition of industry liquidity contract)

Repeal the definition.

3  Subsection 5(1)

Insert:

industry support contract means a contract under which emergency financial support is to be provided by parties to the contract to any ADI that is a party to the contract if a specified event occurs. The contract may also deal with matters associated with the provision of the financial support.

4  After section 6A

Insert in Part I:

6B  Application of Criminal Code

                   The Criminal Code applies to all offences against this Act.

5  Sections 7 and 8

Repeal the sections, substitute:

7  Person other than a body corporate must not carry on banking business

             (1)  A person is guilty of an offence if:

                     (a)  the person carries on any banking business in Australia; and

                     (b)  the person is not a body corporate; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    200 penalty units.

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

             (2)  An offence against subsection (1) is an indictable offence.

             (3)  If a person carries on banking business in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

8  Only the Reserve Bank and bodies corporate that are ADIs may carry on banking business

             (1)  A body corporate is guilty of an offence if:

                     (a)  the body corporate carries on any banking business in Australia; and

                     (b)  the body corporate is not the Reserve Bank; and

                     (c)  the body corporate is not an ADI; and

                     (d)  there is no order in force under section 11 determining that this subsection does not apply to the body corporate.

Maximum 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)  An offence against subsection (1) is an indictable offence.

             (3)  If a body corporate carries on banking business in circumstances that give rise to the body corporate committing an offence against subsection (1), the body corporate is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (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.

6  Subsection 9(6)

Repeal the subsection, substitute:

             (6)  An ADI is guilty of an offence if:

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

                     (b)  doing, or failing to do, the act results in a contravention of a condition of the ADI’s authority; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (6A)  An offence against subsection (6) is an indictable offence.

          (6B)  If an ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (6), the ADI is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (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  Subsection 10(3)

Repeal the subsection, substitute:

             (3)  An ADI is guilty of an offence if:

                     (a)  an alteration is made to the Act, charter, deed of settlement, memorandum of association, articles of association, constitution or other document by which the ADI was constituted as a body corporate; and

                     (b)  the ADI does not, within 3 months of the making of the alteration, give to APRA a written statement:

                              (i)  that sets out particulars of the alteration; and

                             (ii)  that is verified by a statutory declaration made by a senior officer of the ADI; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

8  Subsection 11(1)

Omit “or specified provisions”, substitute “provisions (other than section 63) or specified provisions (other than section 63)”.

9  Subsection 11(3)

Repeal the subsection, substitute:

             (3)  A person is guilty of an offence if:

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

                     (b)  doing, or failing to do, the act results in a contravention of a condition to which an order under this section is subject (being an order that is in force and that applies to the person).

Maximum 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.

          (3A)  An offence against subsection (3) is an indictable offence.

          (3B)  If a person does or fails to do an act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

10  Subsection 11AA(5)

Repeal the subsection, substitute:

             (5)  The body corporate is guilty of an offence if:

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

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

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the body corporate.

Maximum 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.

          (5A)  An offence against subsection (5) is an indictable offence.

          (5B)  If the body corporate does or fails to do an act in circumstances that give rise to the body corporate committing an offence against subsection (5), the body corporate is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (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.

11  Subsection 11AF(1)

Omit all the words from and including “by”, substitute:

by:

                     (a)  all ADIs; or

                     (b)  all authorised NOHCs; or

                     (c)  a specified class of ADIs or authorised NOHCs; or

                     (d)  one or more specified ADIs or authorised NOHCs.

12  After subsection 11AF(1)

Insert:

          (1A)  A standard may impose different requirements to be complied with in different situations or in respect of different activities.

13  Subsection 11AF(4)

Omit “If APRA determines or varies a standard”, substitute “Subject to subsection (6A), if APRA determines or varies a standard referred to in paragraph (1)(a), (b) or (c)”.

14  After subsection 11AF(4)

Insert:

          (4A)  If APRA determines or varies a standard referred to in paragraph (1)(d) it must, as soon as practicable, give a copy of the standard, or of the variation, to the ADI or authorised NOHC, or to each ADI or authorised NOHC, to which the standard applies. Whenever APRA gives a copy of a standard, or of a variation, to an ADI or authorised NOHC, it must also provide a copy to the Treasurer.

15  Subsection 11AF(5)

After “revokes a standard”, insert “referred to in paragraph (1)(a), (b) or (c)”.

16  After subsection 11AF(5)

Insert:

          (5A)  If APRA revokes a standard referred to in paragraph (1)(d) it must, as soon as practicable, give notice of the revocation to the ADI or authorised NOHC, or to each ADI or authorised NOHC, to which the standard applied. Whenever APRA gives a notice of revocation to an ADI or authorised NOHC, it must also provide a copy to the Treasurer.

17  Subsection 11AF(6)

Before “APRA”, insert “Subject to subsection (6A),”.

18  After subsection 11AF(6)

Insert:

          (6A)  If APRA considers that a standard, or a variation of a standard, contains commercially sensitive information:

                     (a)  APRA is not required to include that information in a notice published under subsection (4) or in the version of the standard that is available under subsection (6); but

                     (b)  APRA may include some or all of that information in either or both of those things if APRA considers it appropriate to do so.

19  Subsection 11AF(7)

Omit “, (5) or (6)”, substitute “, (4A), (5), (5A) or (6)”.

20  Subdivision A of Division 1BA of Part II (heading)

Repeal the heading, substitute:

Subdivision A—Directions other than to enforce certified industry support contracts

21  After subsection 11CA(2)

Insert:

          (2A)  Without limiting the generality of subsection (2), a direction referred to in a paragraph of that subsection may:

                     (a)  deal with some only of the matters referred to in that paragraph; or

                     (b)  deal with a particular class or particular classes of those matters; or

                     (c)  make different provision with respect to different matters or different classes of matters.

22  Subdivision B of Division 1BA of Part II (heading)

Repeal the heading, substitute:

Subdivision B—Directions to enforce certified industry support contracts

23  Section 11CB

Omit “liquidity”, substitute “support”.

Note:       The heading to section 11CB is altered by omitting “liquidity” and substituting “support”.

24  Subsections 11CC(1), (4) and (6)

Omit “liquidity”, substitute “support”.

Note:       The heading to section 11CC is altered by omitting “liquidity” and substituting “support”.

25  Subsections 11CG(1) and (2)

Repeal the subsections, substitute:

             (1)  An ADI or an authorised NOHC is guilty of an offence if:

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

                     (b)  doing, or failing to do, the act results in a contravention of a direction given to it under Subdivision A or Subdivision B; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI or authorised NOHC.

Maximum 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.

          (1A)  If an ADI or an authorised NOHC does or fails to do an act in circumstances that give rise to the ADI or NOHC committing an offence against subsection (1), the ADI or NOHC is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the ADI or NOHC committing the offence continue (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.

             (2)  An officer of an ADI or an authorised NOHC is guilty of an offence if:

                     (a)  the officer fails to take reasonable steps to ensure that the ADI or NOHC complies with a direction given to it under Subdivision A or Subdivision B; and

                     (b)  the officer’s duties include ensuring that the ADI or NOHC complies with the direction, or with a class of directions that includes the direction; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the officer.

Maximum 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.

          (2A)  If an officer of an ADI or an authorised NOHC fails to take reasonable steps to ensure that the ADI or NOHC complies with a direction given to it under Subdivision A or Subdivision B in circumstances that give rise to the officer committing an offence against subsection (2), the officer is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the officer committing the offence continue (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.

26  Subsection 11CG(3)

Repeal the subsection, substitute:

             (3)  In this section, officer has the meaning given by section 9 of the Corporations Law.

27  Subsection 11E(2)

Repeal the subsection, substitute:

             (2)  A foreign ADI is guilty of an offence if:

                     (a)  it accepts a deposit from a person in Australia; and

                     (b)  before accepting the deposit, the foreign ADI did not inform the person, in a manner approved by APRA, of the requirements of this Act to which the foreign ADI is not subject because of subsection (1); and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the foreign ADI.

Maximum 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.

28  Subsection 13(3)

Repeal the subsection, substitute:

Information to be supplied if ADI unable, or likely to be unable, to meet obligations

             (3)  An ADI is guilty of an offence if:

                     (a)  the ADI considers that it is likely to become unable to meet its obligations, or that it is about to suspend payment; and

                     (b)  the ADI does not immediately inform APRA of the situation; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (3A)  An offence against subsection (3) is an indictable offence.

29  Subsection 13A(4)

Repeal the subsection, substitute:

             (4)  An ADI is guilty of an offence if:

                     (a)  it does not hold assets (excluding goodwill) in Australia of a value that is equal to or greater than the total amount of its deposit liabilities in Australia; and

                     (b)  APRA has not authorised the ADI to hold assets of a lesser value; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

             (5)  An offence against subsection (4) is an indictable offence.

             (6)  If the circumstances relating to the asset holdings of an ADI are such that give rise to the ADI committing an offence against subsection (4), the ADI is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (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.

30  Subsection 13B(1)

Repeal the subsection, substitute:

             (1)  A person appointed by APRA to investigate the affairs of an ADI under section 13 or 13A is entitled to have access to the books, accounts and documents of the ADI, and to require the ADI to give the person information or facilities to conduct the investigation.

          (1A)  An ADI is guilty of an offence if:

                     (a)  APRA has appointed a person to investigate the affairs of the ADI under section 13 or 13A; and

                     (b)  the ADI:

                              (i)  does not give the person access to its books, accounts and documents; or

                             (ii)  fails to comply with a requirement made under subsection (1) for the provision of information or facilities; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (1B)  If the ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (1A), the ADI is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (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.

31  Subsection 14A(2) (second sentence and penalty)

Repeal the sentence and the penalty.

32  After subsection 14A(2)

Insert:

          (2A)  A person who is or has been an officer of an ADI is guilty of an offence if:

                     (a)  there is an ADI statutory manager in relation to the ADI; and

                     (b)  under subsection (2), the ADI statutory manager requires the person to give the ADI statutory manager information; and

                     (c)  the person fails to comply with the requirement; and

                     (d)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    Imprisonment for 12 months.

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

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.

Note 3:       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 maximum fine worked out as mentioned in Note 2.

33  Subsection 16B(1) (second sentence and penalty)

Repeal the sentence and the penalty.

34  After subsection 16B(1)

Insert:

          (1A)  A person who is or has been an auditor of an ADI, an authorised NOHC, or a subsidiary of an ADI or an authorised NOHC, is guilty of an offence if:

                     (a)  under subsection (1), APRA requires the person to provide information; and

                     (b)  the person fails to comply with the requirement; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    Imprisonment for 6 months.

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

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.

Note 3:       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 maximum fine worked out as mentioned in Note 2.

35  Subsections 16B(2), (3) and (4)

Repeal the subsections, substitute:

Additional duty to give information about ADIs

             (2)  A person who is or has been an auditor of an ADI is guilty of an offence if:

                     (a)  the person has reasonable grounds for believing that:

                              (i)  the ADI is insolvent, or there is a significant risk that the ADI will become insolvent; or

                             (ii)  the ADI has failed to comply with a prudential standard, a requirement under this Act or the regulations, a direction under Division 1BA of Part II or a condition of its section 9 authority; or

                            (iii)  an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; and

                     (b)  the person does not inform APRA of the matter; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    Imprisonment for 6 months.

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

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.

Note 3:       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 maximum fine worked out as mentioned in Note 2.

Additional duty to give information about authorised NOHCs

             (3)  A person who is or has been an auditor of an authorised NOHC is guilty of an offence if:

                     (a)  the person has reasonable grounds for believing that:

                              (i)  the NOHC is insolvent, or there is a significant risk that the NOHC will become insolvent; or

                             (ii)  the NOHC has failed to comply with a prudential standard, a requirement under this Act or the regulations, a direction under Division 1BA of Part II or a condition of its NOHC authority; or

                            (iii)  an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and

                     (b)  the person does not inform APRA of the matter; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    Imprisonment for 6 months.

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

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.

Note 3:       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 maximum fine worked out as mentioned in Note 2.

Additional duty to give information about subsidiaries of ADIs or authorised NOHCs

             (4)  A person who is or has been an auditor of a subsidiary of an ADI or an authorised NOHC (other than a subsidiary that itself is an ADI or an authorised NOHC) is guilty of an offence if:

                     (a)  the person has reasonable grounds for believing that:

                              (i)  the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or

                             (ii)  the subsidiary has failed to comply with a requirement under this Act or the regulations; or

                            (iii)  if the subsidiary is a subsidiary of an ADI—an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; or

                            (iv)  if the subsidiary is a subsidiary of an authorised NOHC—an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and

                     (b)  the person does not inform APRA of the matter; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    Imprisonment for 6 months.

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

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.

Note 3:       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 maximum fine worked out as mentioned in Note 2.

36  Subsection 23(1)

Repeal the subsection, substitute:

             (1)  An ADI is guilty of an offence if:

                     (a)  it fails to comply with section 22 on any day; and

                     (b)  that day is not a day to which subsection (2) applies; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

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

          (1A)  If an ADI is convicted of an offence against subsection (1), it is liable to a fixed penalty equal to the amount worked out using the formula:

37  Subsection 33(4)

Repeal the subsection, substitute:

             (4)  An ADI is guilty of an offence if:

                     (a)  the ADI receives a notice under subsection (1); and

                     (b)  the ADI does not comply with the notice within:

                              (i)  7 days after receiving the notice; or

                             (ii)  if a longer period for compliance is specified by the Reserve Bank—the period so specified; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (4A)  An offence against subsection (4) is an indictable offence.

          (4B)  If an ADI does or fails to do an act in circumstances that give rise to the ADI committing an offence against subsection (4), the ADI is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the ADI committing the offence continue (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.

38  Subsection 36(1)

Omit all the words after “ADIs”.

39  After subsection 36(1)

Insert:

          (1A)  An ADI is guilty of an offence if:

                     (a)  the Reserve Bank has made a determination under subsection (1) of a policy that applies to the ADI; and

                     (b)  the ADI fails to follow the policy; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (1B)  An offence against subsection (1A) is an indictable offence.

40  Subsection 36(2)

Omit all the words after “ADIs”.

41  After subsection 36(2)

Insert:

          (2A)  An ADI is guilty of an offence if:

                     (a)  the Reserve Bank has given a direction under subsection (2) that applies to the ADI; and

                     (b)  the ADI fails to comply with the directions; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

          (2B)  An offence against subsection (2A) is an indictable offence.

Note:       The heading to section 38A is altered by omitting “bank” and substituting “ADI”.

42  At the end of section 41

Add:

             (2)  A person is guilty of an offence if:

                     (a)  the person contravenes subsection (1); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of this subsection.

Maximum 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.

             (3)  An offence against subsection (2) is an indictable offence.

43  After subsection 42(1)

Insert:

          (1A)  A person is guilty of an offence if:

                     (a)  the person fails to comply with subsection (1); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of this subsection.

Maximum 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.

44  At the end of section 42

Add:

             (3)  A person is guilty of an offence if:

                     (a)  the person fails to comply with subsection (2); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of this subsection.

Maximum 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.

45  After subsection 45(1)

Insert:

          (1A)  A person is guilty of an offence if:

                     (a)  the person fails to comply with subsection (1); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of this subsection.

Maximum 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.

          (1B)  An offence against subsection (1A) is an indictable offence.

46  At the end of section 45

Add:

             (4)  A person is guilty of an offence if:

                     (a)  the person fails to comply with subsection (3); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of this subsection.

Maximum 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.

             (5)  An offence against subsection (4) is an indictable offence.

47  At the end of section 46

Add:

             (2)  A person is guilty of an offence if:

                     (a)  the person fails to comply with subsection (1); and

                     (b)  there is no order in force under section 11 determining that subsection (1) does not apply to the person; and

                     (c)  there is no instrument in force under section 48 exempting the person from the application of subsection (1).

Maximum 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.

             (3)  An offence against subsection (2) is an indictable offence.

48  Part VI (heading)

Repeal the heading, substitute:

Part VI—Collection and publication of information about ADIs, authorised NOHCs and their subsidiaries

49  After subsection 61(2)

Insert:

          (2A)  A body corporate is guilty of an offence if:

                     (a)  under subsection (1), APRA has appointed a person to investigate and report on prudential matters in relation to the body corporate; and

                     (b)  the body corporate:

                              (i)  does not give the person access to its books, accounts and documents; or

                             (ii)  fails to comply with a requirement made under subsection (2) for the provision of information or facilities; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the body corporate.

Maximum 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.

          (2B)  If a body corporate does or fails to do an act in circumstances that give rise to the body corporate committing an offence against subsection (2A), the body corporate is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the body corporate committing the offence continue (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.

50  Subsection 62(1) (second sentence)

Repeal the sentence.

51  After subsection 62(1)

Insert:

          (1A)  A person is guilty of an offence if:

                     (a)  under subsection (1), APRA requires the person to provide information; and

                     (b)  the person fails to comply with the requirement; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum 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.

          (1B)  An offence against subsection (1A) is an indictable offence.

          (1C)  If a person fails to comply with a requirement under subsection (1) in circumstances that give rise to the person committing an offence against subsection (1A), the person is guilty of an offence against subsection (1A) in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

52  Subsection 63(1)

Repeal the subsection, substitute:

             (1)  An ADI, other than a foreign ADI, is guilty of an offence if:

                     (a)  the ADI:

                              (i)  enters into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or

                             (ii)  effects a reconstruction of the ADI; and

                     (b)  the Treasurer did not give prior consent in writing to the ADI entering into the arrangement or agreement or effecting the reconstruction.

Maximum 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.

          (1A)  An offence against subsection (1) is an indictable offence.

53  Subsection 63(4)

Repeal the subsection, substitute:

             (4)  A foreign ADI is guilty of an offence if:

                     (a)  there is a proposal that involves the ADI:

                              (i)  entering into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or

                             (ii)  effecting a reconstruction of the ADI; and

                     (b)  the ADI does not give the Treasurer reasonable notice, in writing, of the proposal.

Maximum 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.

          (4A)  An offence against subsection (4) is an indictable offence.

54  Subsections 66(1) and (1A)

Repeal the subsections, substitute:

             (1)  A person is guilty of an offence if:

                     (a)  the person carries on a financial business, whether or not in Australia; and

                     (b)  the person assumes or uses, in Australia, a restricted word or expression in relation to that financial business; and

                     (c)  neither subsection (1AB) nor subsection (1AC) allows that assumption or use of that word or expression; and

                     (d)  APRA did not consent to that assumption or use of that word or expression; and

                     (e)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    50 penalty units.

Note 1:       For the meanings of restricted word or expression, assume or use and financial business, see subsection (4).

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

Note 3:       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.

       (1AA)  If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

        (1AB)  It is not an offence against subsection (1) for the Reserve Bank to assume or use the words bank, banker or banking in relation to its financial business.

        (1AC)  It is not an offence against subsection (1) for an ADI to assume or use the word banking in referring to the fact that it has been granted an authority under this Act.

Note:          For example, an ADI may, in its letterhead, refer to itself as being authorised under the Banking Act 1959 to carry on banking business.

55  After subsection 66(2A)

Insert:

          (2B)  If APRA:

                     (a)  grants a consent; or

                     (b)  takes action under subsection (2) in relation to a consent;

APRA must give ASIC notice of the granting of the consent or the taking of the action.

56  Subsection 66(3)

Repeal the subsection, substitute:

             (3)  A person is guilty of an offence if:

                     (a)  the person has been given a consent under this section; and

                     (b)  the person contravenes a condition to which the consent is subject; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum 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.

          (3A)  If a person does or fails to do an act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

57  Subsection 66A(1)

Repeal the subsection, substitute:

             (1)  A person, other than an ADI, is guilty of an offence if:

                     (a)  the person carries on a financial business, whether or not in Australia; and

                     (b)  the person assumes or uses, in Australia, the expression authorised deposit‑taking institution, or ADI, in relation to that financial business; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum penalty:    50 penalty units.

Note 1:       For the meanings of assume or use and financial business, see subsection (2).

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

Note 3:       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.

          (1A)  If a person assumes or uses an expression in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

58  Subsection 67(1)

Repeal the subsection, substitute:

             (1)  A person, other than an ADI, is guilty of an offence if:

                     (a)  the person carries on banking business in a foreign country but does not carry on banking business in Australia; and

                     (b)  the person establishes or maintains an office in Australia wholly or partly in connection with the carrying on of that banking business in that foreign country; and

                     (c)  APRA did not consent, in writing, to the establishment or maintenance of that office; and

                     (d)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum 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.

          (1A)  If a person establishes or maintains an office in circumstances that give rise to the person committing an offence against subsection (1), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

59  Subsection 67(3)

Repeal the subsection, substitute:

             (3)  A person is guilty of an offence if:

                     (a)  the person has been given a consent under this section; and

                     (b)  the person contravenes a condition to which the consent is subject; and

                     (c)  there is no order in force under section 11 determining that this subsection does not apply to the person.

Maximum 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.

             (4)  If a person does or fails to do an Act in circumstances that give rise to the person committing an offence against subsection (3), the person is guilty of an offence against that subsection in respect of:

                     (a)  the first day on which the offence is committed; and

                     (b)  each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (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.

60  Subsection 68(2)

Omit “A bank”, substitute “An ADI”.

61  Subsection 68(2)

Omit “the bank”, substitute “the ADI”.

62  Subsection 68(4)

Repeal the subsection, substitute:

             (4)  In this section:

ADI includes the Reserve Bank.

63  Subsections 69(1), (2), (6), (7), (11) and (11A)

Omit “a bank”, substitute “an ADI”.

64  Subsection 69(3)

Omit “A bank”, substitute “An ADI”.

65  Subsection 69(3)

After “statement”, insert “, complying with subsection (4) and any regulations under subsection (3),”.

66  After subsection 69(3)

Insert:

       (3AA)  The ADI is guilty of an offence if:

                     (a)  it does not give the Treasurer a statement as required by subsection (3); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

67  Subsections 69(4), (5) and (7)

Omit “the bank” (wherever occurring), substitute “the ADI”.

68  After subsection 69(5)

Insert:

          (5A)  The ADI is guilty of an offence if:

                     (a)  it does not pay, at the time of the delivery of the statement, the amount specified in the statement, as required by subsection (5); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

69  Subsection 69(7)

Omit “that bank” (wherever occurring), substitute “that ADI”.

70  Subsection 69(7)

Omit “first‑mentioned bank”, substitute “first‑mentioned ADI”.

71  After subsection 69(7)

Insert:

          (7A)  The ADI is guilty of an offence if:

                     (a)  it does not pay moneys to a person as required by subsection (7); and

                     (b)  there is no order in force under section 11 determining that this subsection does not apply to the ADI.

Maximum 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.

72  Subsection 69(10)

Repeal the subsection.

73  Section 69A

Repeal the section.

74  Subsections 69C(1) and (2)

Repeal the subsections.

75  Subsection 69C(6)

Omit “(1) or”.

76  Subsection 69C(7)

Repeal the subsection.

77  At the end of section 69C

Add:

Note:          For provisions relating to proof of offences by bodies corporate, see Part 2.5 of the Criminal Code.

78  Subsection 71(3)

Omit “banks”, substitute “ADIs or NOHCs”.

79  Schedule 1 (heading)

Repeal the heading, substitute:

Schedule 1—State and Territory laws relating to ADI mergers

Note:       See section 38A.