{"id":"C2021A00063","name":"Financial Regulator Assessment Authority Act 2021","slug":"financial-regulator-assessment-authority-act-2021","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"63 of 2021","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":56995,"registerId":"commonwealth-C2021A00063-1775106042348","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Object of this Act","content":"#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Simplified outline of this Act","content":"#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Definitions","content":"#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Act binds the Crown","content":"#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.","sortOrder":6},{"sectionNumber":"7","sectionType":"section","heading":"Act extends to things outside Australia","content":"#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.","sortOrder":7},{"sectionNumber":"Part 2","sectionType":"part","heading":"Establishment, functions and cooperation","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":8},{"sectionNumber":"Division 1","sectionType":"division","heading":"Simplified outline of this Part","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":9},{"sectionNumber":"8","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.","sortOrder":10},{"sectionNumber":"Division 2","sectionType":"division","heading":"Authority","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":11},{"sectionNumber":"9","sectionType":"section","heading":"Establishment","content":"#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.","sortOrder":12},{"sectionNumber":"10","sectionType":"section","heading":"Membership","content":"#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.","sortOrder":13},{"sectionNumber":"11","sectionType":"section","heading":"Authority is part of the Department for certain purposes","content":"#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.","sortOrder":14},{"sectionNumber":"Division 3","sectionType":"division","heading":"Functions","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":15},{"sectionNumber":"12","sectionType":"section","heading":"Functions","content":"#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.","sortOrder":16},{"sectionNumber":"13","sectionType":"section","heading":"Timing and requests relating to the 5‑yearly assessment and reporting functions","content":"#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.","sortOrder":17},{"sectionNumber":"14","sectionType":"section","heading":"Requests relating to the ad hoc assessment and reporting function","content":"#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.","sortOrder":18},{"sectionNumber":"15","sectionType":"section","heading":"Assessments and reviews undertaken by others","content":"#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.","sortOrder":19},{"sectionNumber":"16","sectionType":"section","heading":"Reports to be given to APRA or ASIC","content":"#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.","sortOrder":20},{"sectionNumber":"17","sectionType":"section","heading":"5‑yearly reports must be tabled","content":"#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.","sortOrder":21},{"sectionNumber":"18","sectionType":"section","heading":"Powers","content":"#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.","sortOrder":22},{"sectionNumber":"19","sectionType":"section","heading":"Independence","content":"#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).","sortOrder":23},{"sectionNumber":"Division 4","sectionType":"division","heading":"Cooperation with Authority","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":24},{"sectionNumber":"20","sectionType":"section","heading":"Cooperation with Authority","content":"#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).","sortOrder":25},{"sectionNumber":"21","sectionType":"section","heading":"Legal professional privilege","content":"#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.","sortOrder":26},{"sectionNumber":"Part 3","sectionType":"part","heading":"Members, staff and consultants","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":27},{"sectionNumber":"22","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.","sortOrder":29},{"sectionNumber":"24","sectionType":"section","heading":"Appointment","content":"#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.","sortOrder":31},{"sectionNumber":"25","sectionType":"section","heading":"Period of appointment","content":"#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.","sortOrder":32},{"sectionNumber":"26","sectionType":"section","heading":"Acting appointments","content":"#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.","sortOrder":33},{"sectionNumber":"27","sectionType":"section","heading":"Remuneration","content":"#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.","sortOrder":34},{"sectionNumber":"28","sectionType":"section","heading":"Leave","content":"#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.","sortOrder":35},{"sectionNumber":"29","sectionType":"section","heading":"Terms and conditions","content":"#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.","sortOrder":36},{"sectionNumber":"30","sectionType":"section","heading":"Other paid work","content":"#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.","sortOrder":37},{"sectionNumber":"31","sectionType":"section","heading":"Disclosure of interests","content":"#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.","sortOrder":38},{"sectionNumber":"32","sectionType":"section","heading":"Resignation","content":"#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.","sortOrder":39},{"sectionNumber":"33","sectionType":"section","heading":"Termination of appointment","content":"#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.","sortOrder":40},{"sectionNumber":"34","sectionType":"section","heading":"Meetings of Authority","content":"#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.","sortOrder":42},{"sectionNumber":"35","sectionType":"section","heading":"Decisions without meetings","content":"#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.","sortOrder":43},{"sectionNumber":"Division 5","sectionType":"division","heading":"Staff and consultants","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":44},{"sectionNumber":"36","sectionType":"section","heading":"Arrangements relating to the staff of the Department","content":"#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.","sortOrder":45},{"sectionNumber":"37","sectionType":"section","heading":"Consultants","content":"#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.","sortOrder":46},{"sectionNumber":"Part 4","sectionType":"part","heading":"Information management","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":47},{"sectionNumber":"38","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.","sortOrder":49},{"sectionNumber":"39","sectionType":"section","heading":"Protected information not to be included in reports","content":"#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.","sortOrder":51},{"sectionNumber":"Subdivision A","sectionType":"subdivision","heading":"Unauthorised use or disclosure of protected information","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":53},{"sectionNumber":"40","sectionType":"section","heading":"Unauthorised use or disclosure of protected information","content":"#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).","sortOrder":54},{"sectionNumber":"41","sectionType":"section","heading":"Limit on disclosure to courts and tribunals","content":"#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).","sortOrder":55},{"sectionNumber":"Subdivision B","sectionType":"subdivision","heading":"Authorised use or disclosure of protected information","content":"An Act to establish the Financial Regulator Assessment Authority, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Financial Regulator Assessment Authority Act 2021.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2021.

1 July 2021

(paragraph (b) applies)

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Object of this Act\n\n The object of this Act is to provide for the independent assessment of:\n (a) APRA’s effectiveness and capability; and\n (b) ASIC’s effectiveness and capability.\n\n#### 4 Simplified outline of this Act\n\nThis Act establishes the Financial Regulator Assessment Authority.\n\nEvery 5 financial years, the Authority is to assess the effectiveness and capability of APRA and ASIC and then report to the Minister. The Authority is also to undertake ad hoc assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability when requested by the Minister.\n\nThe Authority consists of the Chair and 2 other members. It is assisted by APS employees in the Department whose services are made available by the Secretary.\n\nThe Authority may request information from APRA and ASIC. There are limitations on how some of this information can be used and disclosed.\n\n#### 5 Definitions\n\n In this Act:\n\n> 5‑yearly report means a report mentioned in paragraph 12(1)(a) or (b).\n\n> APRA means the Australian Prudential Regulation Authority.\n\n> ASIC means the Australian Securities and Investments Commission.\n\n> Authority means the Financial Regulator Assessment Authority.\n\n> Chair means the Chair of the Authority.\n\n> enforcement body has the same meaning as in the Privacy Act 1988.\n\n> enforcement related activity has the same meaning as in the Privacy Act 1988.\n\n> entrusted person means:\n\n (a) a member; or\n (b) a staff member; or\n (c) the Secretary; or\n (d) an APS employee; or\n (e) a consultant engaged under section 37; or\n (f) any other person employed or engaged to provide services to the Commonwealth in connection with the Authority; or\n (g) an officer or employee of a person mentioned in paragraph (e) or (f) whose duties relate to the Authority.\n\n> member means a member of the Authority and includes the Chair.\n\n> officer has the same meaning as in section 9 of the Corporations Act 2001.\n\n> paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\n> protected information means information of any of the following kinds that is obtained by the Authority from APRA or ASIC (the source agency):\n\n (a) information that is prohibited from being disclosed by a person under:\n (i) a law of the Commonwealth other than this Act; or\n (ii) a law of a State or Territory;\n (b) information the disclosure of which by the source agency would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;\n (c) information that is protected against disclosure by legal professional privilege;\n (d) information the disclosure of which:\n (i) could reasonably be expected to prejudice the security, defence or international relations of Australia; or\n (ii) could reasonably be expected to prejudice relations between the Commonwealth Government and the Government of a State or Territory; or\n (iii) would involve disclosing deliberations or decisions of the Cabinet, or of a Committee of the Cabinet; or\n (iv) could reasonably be expected to endanger a person’s life or physical safety; or\n (v) could reasonably be expected to prejudice one or more enforcement related activities; or\n (vi) would involve unreasonably disclosing personal information (within the meaning of the Privacy Act 1988).\n\n> Note: For the purposes of paragraph (a), the following do not matter:\n\n (a) who the law prohibits from disclosing the information;\n (b) the circumstances in which the law prohibits the disclosure.\n\n> rules means the rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> staff member means a member of the staff assisting the Authority (see section 36).\n\n> use, in relation to information, includes make a record of.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be prosecuted for an offence.\n\n#### 7 Act extends to things outside Australia\n\n This Act extends to acts, omissions, matters and things outside Australia.\n\n## Part 2—Establishment, functions and cooperation\n\n### Division 1—Simplified outline of this Part\n\n#### 8 Simplified outline of this Part\n\nThe Financial Regulator Assessment Authority is established.\n\nThe Authority’s functions include:\n\n(a) once every 5 financial years, assessing the effectiveness and capability of each of APRA and ASIC and reporting to the Minister; and\n\n(b) when requested by the Minister, undertaking assessments on any matter relating to APRA’s, or ASIC’s, effectiveness and capability.\n\nAPRA and ASIC and their members and staff are required to cooperate with and provide information to the Authority.\n\n### Division 2—Authority\n\n#### 9 Establishment\n\n The Financial Regulator Assessment Authority is established by this section.\n\n#### 10 Membership\n\n (1) The Authority consists of the following members:\n (a) a Chair;\n (c) 2 other members.\n (2) The performance of a function or the exercise of a power by the Authority is not affected by a vacancy or vacancies in the membership of the Authority.\n\n#### 11 Authority is part of the Department for certain purposes\n\n For the purposes of paragraph (a) of the definition of Department of State in section 8 of the Public Governance, Performance and Accountability Act 2013, the Authority is prescribed in relation to the Department.\n\n> Note: This means that the members are officials of the Department for the purposes of the Public Governance, Performance and Accountability Act 2013.\n\n### Division 3—Functions\n\n#### 12 Functions\n\n (1) The Authority has the following functions:\n (a) to assess and report to the Minister on APRA’s effectiveness and capability;\n (b) to assess and report to the Minister on ASIC’s effectiveness and capability;\n (c) at any time when requested by the Minister, to assess and report to the Minister on any matter relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n (d) any other function conferred by this Act or any other law of the Commonwealth;\n (e) any other function that is incidental or conducive to the performance of any of the above functions.\n (2) However, the functions of the Authority do not include assessing or reporting on only a single case.\n (3) For the purposes of paragraph (1)(a), (b) or (c), the Authority may:\n (a) undertake an assessment itself; or\n (b) cause an assessment, or the preparation of the resulting report, to be undertaken by someone else.\n\n#### 13 Timing and requests relating to the 5‑yearly assessment and reporting functions\n\n (1) The Authority must undertake each of the assessments mentioned in paragraphs 12(1)(a) and (b):\n (a) once in the period that begins at the start of 1 July 2023 and ends at the end of 30 June 2028; and\n (b) once in each successive period of 5 financial years.\n (2) The Minister may request the Authority to:\n (a) consider one or more matters; or\n (b) not consider one or more matters;\n when undertaking such an assessment.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 14 Requests relating to the ad hoc assessment and reporting function\n\n (1) The Minister may request the Authority to assess and report on a matter mentioned in paragraph 12(1)(c).\n (2) The Minister may include in such a request terms of reference (including timeframes) for the assessment and report.\n (3) The Authority must comply with such a request.\n (4) If such a request is made in writing, the request is not a legislative instrument.\n (5) The Minister may withdraw or amend such a request at any time before the Authority reports to the Minister.\n\n#### 15 Assessments and reviews undertaken by others\n\n (1) In performing the functions mentioned in paragraphs 12(1)(a) to (c), the Authority may take into account any of the following that the Authority considers relevant:\n (a) an assessment relating to:\n (i) APRA’s effectiveness and capability; or\n (ii) ASIC’s effectiveness and capability;\n undertaken by someone other than the Authority;\n (b) a review relating to APRA or ASIC undertaken by someone other than the Authority.\n (2) Subsection (1) does not limit the matters the Authority may take into account in performing its functions or exercising its powers.\n\n#### 16 Reports to be given to APRA or ASIC\n\n Proposed reports\n (1) Before giving a report mentioned in section 12 to the Minister, the Authority must give a copy of the proposed report to the following:\n (a) if the proposed report relates to APRA—APRA;\n (b) if the proposed report relates to ASIC—ASIC.\n (2) If the recipient of the proposed report gives written comments to the Authority, the Authority must consider the comments before giving the final report to the Minister.\n Final reports\n (3) If the Authority gives a report mentioned in section 12 to the Minister, the Authority must give a copy to the following:\n (a) if the report relates to APRA—APRA;\n (b) if the report relates to ASIC—ASIC.\n (4) The Authority must not publish a report mentioned in section 12 unless the report has been tabled in a House of the Parliament or published by the Minister.\n\n#### 17 5‑yearly reports must be tabled\n\n The Minister must cause a copy of a 5‑yearly report to be tabled in each House of the Parliament within 20 sitting days of that House after the report is received by the Minister.\n\n#### 18 Powers\n\n The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n\n#### 19 Independence\n\n Subject to this Act and to other laws of the Commonwealth:\n (a) the Authority has complete discretion in the performance of the Authority’s functions and the exercise of the Authority’s powers; and\n (b) the Authority is not subject to direction from anyone in relation to:\n (i) how a particular assessment will be undertaken; or\n (ii) the content of a report to the Minister.\n\n> Note: The Authority may be requested to do certain things (see subsections 13(2) and 14(1)).\n\n### Division 4—Cooperation with Authority\n\n#### 20 Cooperation with Authority\n\n Cooperation\n (1) A person to whom this section applies must cooperate with the Authority, the members and the staff members, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers.\n Information gathering\n (2) Without limiting subsection (1), a person to whom this section applies must, to the extent reasonably necessary to enable the Authority to perform its functions and exercise its powers:\n (a) give the Authority any information that is requested by the Authority; and\n (b) produce any document in APRA’s or ASIC’s possession that is requested by the Authority; and\n (c) answer any questions asked by the Authority.\n (3) A request by the Authority under paragraph (2)(a) or (b) must allow the person a reasonable time to comply.\n (4) The Authority must notify a person that it intends to ask the person questions under paragraph (2)(c) a reasonable time before asking the questions.\n Persons to whom this section applies\n (5) This section applies to the following:\n (a) APRA;\n (b) an APRA member (within the meaning of subsection 3(1) of the Australian Prudential Regulation Authority Act 1998);\n (c) an APRA staff member (within the meaning of that subsection);\n (d) ASIC;\n (e) a member of ASIC;\n (f) a staff member (within the meaning of subsection 5(1) of the Australian Securities and Investments Commission Act 2001).\n\n#### 21 Legal professional privilege\n\n (1) A person is not excused from giving information, producing a document or answering a question under section 20 on the ground that to do so would disclose material that is protected against disclosure by legal professional privilege.\n (2) The fact that a person is not excused under subsection (1) from giving information, producing a document or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.\n\n## Part 3—Members, staff and consultants\n\n### Division 1—Simplified outline of this Part\n\n#### 22 Simplified outline of this Part\n\nThree members of the Authority, including the Chair, are appointed by the Minister.\n\nThe Chair is to convene meetings of the Authority.\n\nThe Authority is assisted by APS employees in the Department whose services are made available by the Secretary. The Secretary may engage consultants to assist the Authority.\n\n### Division 3—Members\n\n#### 24 Appointment\n\n (1) Members are to be appointed by the Minister by written instrument.\n\n> Note: A Member may be reappointed, subject to subsection 25(2): see section 33AA of the Acts Interpretation Act 1901.\n\n (2) Before appointing a person as a member, the Minister must have regard to the person’s experience, expertise and qualifications in fields relevant to the Authority’s functions.\n (3) In making appointments, the Minister must, to the extent reasonably practicable, ensure that the members collectively possess the skills and qualifications necessary for the Authority to perform its functions.\n (4) If there are one or more members, the Minister must appoint one member to be the Chair.\n (5) A member holds office on a part‑time basis.\n (6) Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time.\n\n#### 25 Period of appointment\n\n (1) A member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n (2) A person must not hold office as a member for a total of more than 10 years.\n\n#### 26 Acting appointments\n\n Acting members\n (1) The Minister may, by written instrument, appoint a person to act as a member:\n (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when a member:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n Acting Chair\n (2) The Minister may, by written instrument, appoint a member to act as the Chair:\n (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or\n (b) during any period, or during all periods, when the Chair:\n (i) is absent from duty; or\n (ii) is, for any reason, unable to perform the duties of the office.\n\n> Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.\n\n#### 27 Remuneration\n\n (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the rules.\n (2) A member is to be paid the allowances that are prescribed by the rules.\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.\n\n#### 28 Leave\n\n The Minister may grant leave of absence to any member on the terms and conditions that the Minister determines.\n\n#### 29 Terms and conditions\n\n A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.\n\n#### 30 Other paid work\n\n A member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.\n\n#### 31 Disclosure of interests\n\n (1) A disclosure by a member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.\n (2) Subsection (1) applies in addition to any rules made for the purposes of that section.\n (3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.\n\n#### 32 Resignation\n\n (1) A member may resign the member’s appointment by giving the Minister a written resignation.\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.\n\n#### 33 Termination of appointment\n\n (1) The Minister may terminate the appointment of a member:\n (a) for misbehaviour; or\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.\n (2) The Minister may terminate the appointment of a member if:\n (a) the member:\n (i) becomes bankrupt; or\n (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n (iii) compounds with the member’s creditors; or\n (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or\n (b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or\n (c) the member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of member’s duties (see section 30); or\n (d) the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.\n\n### Division 4—Decision‑making by Authority\n\n#### 34 Meetings of Authority\n\n (1) The Chair must convene such meetings of the Authority as are, in the Chair’s opinion, necessary for the efficient performance of the Authority’s functions and exercise of the Authority’s powers.\n\n> Note: Section 33B of the Acts Interpretation Act 1901 contains information about the ways in which members may participate in meetings.\n\n (2) Subject to subsection (4) and section 35, the Authority may operate in the way it determines.\n (3) A determination under subsection (2) must be made by a majority of members at a meeting of the Authority at which the Chair has a deliberative vote and, in the event of an equality of votes, a casting vote.\n (4) The Chair must ensure that minutes of meetings are kept.\n\n#### 35 Decisions without meetings\n\n (1) The Authority is taken to have made a decision at a meeting if the decision is made in accordance with procedures determined under subsection 34(2) for making decisions without meeting.\n (2) A member is not entitled to take part in making a proposed decision as mentioned in subsection (1) if the member would not have been entitled to vote on the proposal if the matter had been considered at a meeting of the Authority.\n (3) The Authority must keep a record of decisions made in accordance with this section.\n\n### Division 5—Staff and consultants\n\n#### 36 Arrangements relating to the staff of the Department\n\n (1) The staff assisting the Authority are to be APS employees in the Department whose services are made available to the Authority, by the Secretary, in connection with the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n (2) When performing services for the Authority, the staff are subject to the directions of the Authority.\n\n#### 37 Consultants\n\n The Secretary may, on behalf of the Commonwealth, engage consultants to assist in the performance of any of the Authority’s functions or the exercise of any of the Authority’s powers.\n\n## Part 4—Information management\n\n### Division 1—Simplified outline of this Part\n\n#### 38 Simplified outline of this Part\n\nSome of the information the Authority obtains from APRA or ASIC is protected information.\n\nThe Authority must not include protected information in its reports to the Minister.\n\nAn entrusted person may commit an offence if the person uses or discloses protected information other than in certain circumstances.\n\n### Division 2—Inclusion of information in reports\n\n#### 39 Protected information not to be included in reports\n\n (1) The Authority must not include protected information in a report mentioned in section 12.\n (2) Before giving such a report to the Minister, the Authority must consult with the following to ensure that protected information is not included in the report:\n (a) if the report is prepared using information obtained by the Authority from APRA—APRA;\n (b) if the report is prepared using information obtained by the Authority from ASIC—ASIC.\n (3) This section does not apply in relation to protected information that has already been lawfully made available to the public.\n\n### Division 3—Secrecy\n\n#### Subdivision A—Unauthorised use or disclosure of protected information\n\n#### 40 Unauthorised use or disclosure of protected information\n\n (1) A person commits an offence if:\n (a) the person is, or has been, an entrusted person; and\n (b) the person obtains information in the person’s capacity as an entrusted person; and\n (c) the information is protected information; and\n (d) the person uses or discloses the information; and\n (e) the use or disclosure is not authorised by a provision in Subdivision B.\n\nPenalty: Imprisonment for 2 years.\n\n (2) Subsection (1) does not apply in relation to use or disclosure of information if the information has already been lawfully made available to the public.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).\n\n (3) Subsection (1) does not apply if the conduct is:\n (a) authorised by a law of the Commonwealth other than the following:\n (i) this Act;\n (ii) subsection 11CM(1) of the Banking Act 1959;\n (iii) subsection 109E(1) of the Insurance Act 1973;\n (iv) subsection 231E(1) of the Life Insurance Act 1995;\n (v) subsection 72(1) or section 73 of the Financial Accountability Regime Act 2023; or\n (b) in compliance with a requirement under a law of the Commonwealth other than this Act.\n\n> Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).\n\n (4) Section 15.4 of the Criminal Code (Extended geographical jurisdiction—category D) applies to an offence against subsection (1).\n\n#### 41 Limit on disclosure to courts and tribunals\n\n (1) Except when it is necessary to do so for the purposes of this Act, a person who is, or has been, an entrusted person is not to be required to disclose, or produce a document containing, protected information to:\n (a) a court; or\n (b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents.\n (2) However, subsection (1) does not prevent a person who is, or has been, an officer (within the meaning of section 56 of the Australian Prudential Regulation Authority Act 1998) from being required to disclose protected information (within the meaning of that section), or to produce a protected document (within the meaning of that section), when it is necessary to do so for the purposes of a prudential regulation framework law (within the meaning of subsection 3(1) of that Act).\n\n#### Subdivision B—Authorised use or disclosure of protected information\n\n#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.\n\n#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).\n\n#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.\n\n#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).\n\n## Part 5—Miscellaneous\n\n#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.\n\n#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.\n\n#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.\n\n#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).\n\n#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":56},{"sectionNumber":"42","sectionType":"section","heading":"Authorisation to use or disclose protected information for the purposes of functions, duties and powers","content":"#### 42 Authorisation to use or disclose protected information for the purposes of functions, duties and powers\n\n An entrusted person may use or disclose protected information:\n (a) for the purposes of this Act; or\n (b) in performing functions, or exercising powers, under a law of the Commonwealth as an entrusted person; or\n (c) in performing duties as an entrusted person in relation to the Authority.","sortOrder":57},{"sectionNumber":"43","sectionType":"section","heading":"Authorisation to disclose protected information to the Secretary, APRA and ASIC","content":"#### 43 Authorisation to disclose protected information to the Secretary, APRA and ASIC\n\n (1) An entrusted person may disclose protected information to:\n (a) the Secretary; or\n (b) APRA; or\n (c) ASIC.\n (2) An entrusted person may use protected information for the purposes of disclosing protected information under subsection (1).","sortOrder":58},{"sectionNumber":"44","sectionType":"section","heading":"Authorisation to use or disclose protected information for purposes of enforcement related activity","content":"#### 44 Authorisation to use or disclose protected information for purposes of enforcement related activity\n\n (1) An entrusted person may use protected information, or disclose protected information to an enforcement body, if the entrusted person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement related activities being conducted by, or on behalf of, an enforcement body.\n (2) An enforcement body to which protected information is disclosed under subsection (1) may use or disclose the information for the purposes of conducting one or more enforcement related activities.","sortOrder":59},{"sectionNumber":"45","sectionType":"section","heading":"Authorisation to use or disclose protected information in the public interest","content":"#### 45 Authorisation to use or disclose protected information in the public interest\n\n (1) The Secretary may, in writing:\n (a) certify that it is necessary in the public interest for an entrusted person to use or disclose protected information in a particular case; and\n (b) specify any conditions on the use or disclosure.\n (2) A certificate made under subsection (1) is not a legislative instrument.\n (3) An entrusted person may use or disclose protected information in a particular case if:\n (a) the Secretary has certified under subsection (1) that it is necessary in the public interest for the entrusted person to do so; and\n (b) the use or disclosure is in accordance with any conditions specified in the certificate.\n (4) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary under subsection (1).","sortOrder":60},{"sectionNumber":"Part 5","sectionType":"part","heading":"Miscellaneous","content":"## Part 5—Miscellaneous","sortOrder":61},{"sectionNumber":"46","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 46 Simplified outline of this Part\n\nThis Part deals with miscellaneous matters such as liability, delegations and rules.","sortOrder":62},{"sectionNumber":"47","sectionType":"section","heading":"Protection from liability","content":"#### 47 Protection from liability\n\n Members and staff members\n (1) A member or a staff member (the protected person) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in the performance or purported performance of any function or duty of the protected person or the Authority under or in relation to this Act; or\n (b) in the exercise or purported exercise of any power of the protected person or the Authority under or in relation to this Act.\n Consultants and contractors etc.\n (2) A person mentioned in paragraph (e), (f) or (g) of the definition of entrusted person in section 5 is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of an act done or omitted to be done in good faith:\n (a) in assisting in the performance or purported performance of any function or duty of the Authority under or in relation to this Act; or\n (b) in assisting in the exercise or purported exercise of any power of the Authority under or in relation to this Act.\n Members and staff of cooperating agencies\n (3) An individual mentioned in subsection 20(5) is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of any of the following acts done in good faith under, or purportedly under, subsection 20(2):\n (a) giving the Authority information;\n (b) producing a document to the Authority;\n (c) answering a question asked by the Authority.","sortOrder":63},{"sectionNumber":"48","sectionType":"section","heading":"Delegation by Minister","content":"#### 48 Delegation by Minister\n\n (1) The Minister may, in writing, delegate to:\n (a) the Secretary; or\n (b) an SES employee or an acting SES employee in the Department, other than a staff member;\n the Minister’s functions or powers under the following provisions:\n (c) subsection 26(2) (appointment of acting Chair);\n (d) section 28 (leave).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Minister.","sortOrder":64},{"sectionNumber":"49","sectionType":"section","heading":"Delegation by Authority","content":"#### 49 Delegation by Authority\n\n (1) The Authority may, in writing, delegate to a member or staff member the Authority’s functions or powers under the following provisions:\n (a) subsections 16(1) and (3) (reports to be given to APRA or ASIC);\n (b) subsection 39(2) (protected information not to be included in reports).\n (2) The Authority may, in writing, delegate the Authority’s functions or powers under subsection 20(2) (cooperation with Authority) to:\n (a) a member; or\n (b) a staff member who is:\n (i) an SES employee; or\n (ii) an acting SES employee; or\n (iii) classified as Executive Level 2 or equivalent; or\n (iv) acting in a position usually occupied by an APS employee who is so classified.\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (3) In performing a function, or exercising a power, delegated under subsection (1) or (2), the delegate must comply with any written directions of the Authority.\n (4) The delegation continues in force despite a change in the membership of the Authority.\n (5) The delegation may be varied or revoked by the Authority (whether or not there has been a change in the membership of the Authority).","sortOrder":65},{"sectionNumber":"50","sectionType":"section","heading":"Delegation by Secretary","content":"#### 50 Delegation by Secretary\n\n (1) The Secretary may, in writing, delegate to an SES employee or an acting SES employee in the Department the Secretary’s functions or powers under the following provisions:\n (a) section 36 (arrangements relating to staff of the Department);\n (b) section 37 (consultants).\n\n> Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.\n\n (2) Despite subsection (1), the Secretary’s functions or powers under section 36 cannot be delegated to a staff member.\n (4) In performing a function, or exercising a power, delegated under subsection (1), the delegate must comply with any written directions of the Secretary.","sortOrder":66},{"sectionNumber":"51","sectionType":"section","heading":"Rules","content":"#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.","sortOrder":67}],"analysis":{"summary":{"complexity_score":5,"scope_assessment":{"changed":false,"description":"The Act is internally consistent with its stated object. It establishes the FRAA to independently assess APRA and ASIC, and all operative provisions — membership, functions, cooperation obligations, information management, and miscellaneous matters — are directly aligned with that purpose. No provisions appear to stray beyond the intended scope of creating an oversight body for Australia's two major financial regulators."},"complexity_factors":["Multiple cross-references to other legislation (Privacy Act 1988, Public Governance Performance and Accountability Act 2013, Australian Prudential Regulation Authority Act 1998, ASIC Act 2001, Corporations Act 2001, Financial Accountability Regime Act 2023, Banking Act 1959, Insurance Act 1973, Life Insurance Act 1995, Remuneration Tribunal Act 1973)","Multi-layered definition of 'protected information' with six distinct sub-categories requiring interpretation","Tension between the FRAA's formal independence and the Minister's power to direct assessment scope, requiring careful reading to understand actual independence","Layered secrecy regime with criminal penalties and multiple authorised disclosure exceptions that must be read together","Complex interaction between legal professional privilege waiver (s.21) and its preservation for other purposes","Three separate delegation regimes (Minister, Authority, Secretary) with different constraints on each","The document appears to contain significant repetition/duplication which adds reading burden without adding legal substance"],"plain_english_summary":"The Act creates the Financial Regulator Assessment Authority (FRAA), a small independent body that reviews APRA and ASIC’s effectiveness at least every five years and on ministerial request. It assesses systemic capability and performance (not individual cases), has compulsory access to documents and witnesses, and must protect sensitive information (breaches carry criminal penalties). The FRAA’s findings aim to improve regulator accountability and thereby strengthen protections for consumers, financial institutions, and trust in Australia’s financial system."},"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"issue_detection":{"absurdities":[{"type":"other","section":"10(1)","severity":"low","reasoning":"The paragraph labelling jumps from (a) to (c), omitting (b). While this is likely a formatting/numbering error rather than a substantive gap, it creates ambiguity about whether a category of membership was inadvertently omitted from the enacted text.","confidence":0.95,"description":"Section 10(1) lists members as '(a) a Chair' and '(c) 2 other members', skipping paragraph (b) entirely. This is a clear drafting error creating a gap in the list that has no legal content but implies a missing category of member."},{"type":"impossible_compliance","section":"24(6)","severity":"high","reasoning":"The Act simultaneously mandates the Authority undertake 5-yearly assessments (s.13(1)) and report to the Minister, while expressly permitting a state where there are no members at all. With no members, the Authority cannot function, convene meetings, make decisions, or comply with its statutory obligations. This creates an irreconcilable tension between mandatory functions and the express permission for a memberless Authority.","confidence":0.88,"description":"Section 24(6) states 'Nothing in this Act requires there to be members (including acting members) of the Authority at any particular time', yet the Act imposes mandatory functions on the Authority (s.13(1) requires assessments on a statutory timetable) and the Chair must convene meetings (s.34(1)). An Authority with no members cannot perform any of these mandatory obligations."},{"type":"self_contradicting","section":"19 and 13(2)-(3)","severity":"medium","reasoning":"Independence from direction over assessment methodology is directly undermined by a legally binding obligation to follow Ministerial instructions about what matters to include or exclude. The Note in s.19 is not a saving provision and cannot cure the logical contradiction.","confidence":0.85,"description":"Section 19 declares the Authority 'has complete discretion in the performance of the Authority's functions' and 'is not subject to direction from anyone in relation to how a particular assessment will be undertaken'. Yet s.13(2)-(3) compels the Authority to comply with Ministerial requests to consider or not consider specific matters in an assessment. The Note to s.19 acknowledges this tension but does not resolve it — being told what to consider or exclude plainly directs how an assessment is undertaken."},{"type":"self_contradicting","section":"21(1) and 21(2)","severity":"medium","reasoning":"The practical effect of s.21(1) is to abrogate privilege for the purposes of s.20 compliance. Preserving the privilege claim under s.21(2) without any operative consequence — given the material has already been compulsorily produced — is logically hollow. The provision purports to preserve something it has already effectively destroyed.","confidence":0.8,"description":"Section 21(1) removes the right to refuse to produce legally privileged material under s.20. Section 21(2) then states this 'does not otherwise affect a claim of legal professional privilege'. This creates an absurdity: a person must hand over privileged material, yet the privilege claim is simultaneously preserved. The privilege is rendered meaningless in practice while nominally surviving."},{"type":"self_contradicting","section":"39(1) and 42(a)","severity":"medium","reasoning":"The broad authorisation in s.42(a) — disclosure for purposes of the Act — on its face encompasses report preparation, which is a core purpose of the Act. Section 39(1) carves out a specific prohibition, but the relationship between the two provisions is not clearly hierarchical, creating interpretive uncertainty about whether s.39(1) is an exception to s.42(a) or vice versa.","confidence":0.75,"description":"Section 39(1) prohibits the Authority from including protected information in reports to the Minister. Section 42(a) authorises entrusted persons to use or disclose protected information 'for the purposes of this Act'. Preparing and delivering a report to the Minister is squarely a purpose of this Act. This creates an internal contradiction where the general authorisation in s.42(a) could be read to permit precisely what s.39(1) expressly forbids."},{"type":"impossible_compliance","section":"34(3)","severity":"medium","reasoning":"The quorum and voting mechanism in s.34(3) presupposes members exist. Combined with s.24(6)'s express statement that no members need exist, the Authority could be in a perpetual state where it cannot make the procedural determinations needed to function, including decisions without meetings under s.35.","confidence":0.82,"description":"Section 34(3) requires a 'majority of members' to make a procedural determination about how the Authority operates. With only 3 members (s.10), a majority is 2. However, s.24(6) permits the Authority to have no members at any time. A majority vote of zero members is mathematically impossible, rendering the decision-making mechanism unworkable when vacancies exist."},{"type":"other","section":"48(1)","severity":"low","reasoning":"Missing subsection numbers (s.48(2) and s.50(3)) suggest legislative drafting errors. While this may reflect deliberate omission of previously-included provisions during amendment, the gaps create unnecessary uncertainty about whether content was intentionally removed or accidentally dropped.","confidence":0.9,"description":"Section 48 contains subsections (1) and (3) but no subsection (2). Similarly, s.50 contains subsections (1), (2) and (4) but no subsection (3). These missing subsections create gaps in the text that may indicate provisions were removed without consequential renumbering, leaving internal cross-references potentially orphaned."},{"type":"other","section":"13(1)(a)","severity":"low","reasoning":"While not strictly impossible to comply with, the two-year gap between commencement and the first assessment obligation is anomalous for a body established precisely to conduct assessments. It creates a period where the Authority legally exists and incurs costs but has no mandatory assessment function to discharge.","confidence":0.7,"description":"The first 5-yearly assessment period is specified as beginning 1 July 2023 — two years after the Act commenced on 1 July 2021. The Act provides no mechanism or obligation for the Authority to do anything substantive in the intervening two-year period (2021-2023). The Authority is established with staff, functions and powers but has no operative assessment obligation for two years."},{"type":"other","section":"5 (definition of 'entrusted person', paragraph (d))","severity":"medium","reasoning":"Paragraph (d) is unqualified, unlike paragraph (b) which limits 'staff member' to those whose services are made available to the Authority, and paragraph (g) which requires duties to relate to the Authority. An unqualified APS employee category creates an impractically broad class subject to criminal liability under s.40 for information they may have obtained in an entirely unrelated capacity.","confidence":0.78,"description":"The definition of 'entrusted person' includes at paragraph (d) 'an APS employee' without qualification. This would capture any APS employee in the Department — potentially thousands of people — as entrusted persons subject to the secrecy offence in s.40, regardless of whether they have any connection to the Authority or its work."}],"contradictions":[{"severity":"high","section_a":"19(b)","section_b":"13(2)-(3)","confidence":0.87,"description":"Section 19(b) declares the Authority is not subject to direction from anyone regarding how a particular assessment will be undertaken. Sections 13(2)-(3) require the Authority to comply with Ministerial requests to consider or not consider specific matters during an assessment. Mandatory compliance with instructions about assessment scope is indistinguishable from direction about how an assessment is conducted."},{"severity":"medium","section_a":"39(1)","section_b":"20(2)(a) and 21(1)","confidence":0.8,"description":"Section 20(2)(a) compels APRA and ASIC to give the Authority any requested information, and s.21(1) removes the legal professional privilege excuse. Section 39(1) then prohibits the Authority from including that same (potentially privileged) information in its reports. The Authority is thus compelled to gather information it is simultaneously forbidden from using in its primary output."},{"severity":"high","section_a":"24(6)","section_b":"13(1)","confidence":0.85,"description":"Section 24(6) states nothing requires members to exist at any time. Section 13(1) imposes a mandatory obligation on 'the Authority' to undertake assessments within specified periods. An Authority with no members cannot undertake assessments, making the mandatory obligation in s.13(1) potentially unenforceable and the Authority incapable of meeting its statutory timetable."},{"severity":"medium","section_a":"16(4)","section_b":"17","confidence":0.75,"description":"Section 16(4) prohibits the Authority from publishing a report unless it has been tabled or published by the Minister. Section 17 requires the Minister to table 5-yearly reports within 20 sitting days. If the Minister fails to table within 20 sitting days, s.16(4) continues to prohibit Authority publication but there is no mechanism to compel tabling or override the publication prohibition, leaving the report permanently suppressed with no remedy."},{"severity":"low","section_a":"3 (Object)","section_b":"12(2)","confidence":0.65,"description":"The object of the Act (s.3) is to provide for 'independent assessment' of APRA and ASIC's effectiveness and capability — a broad mandate. Section 12(2) carves out single cases from the Authority's functions. However, systemic effectiveness failures may only be demonstrable through examination of individual cases, meaning the carve-out potentially undermines the Act's own stated object."},{"severity":"low","section_a":"36(2)","section_b":"49(2)","confidence":0.6,"description":"Section 36(2) provides that when performing services for the Authority, staff are subject to the directions of the Authority. Section 49(2) allows the Authority to delegate its information-gathering powers under s.20(2) to staff members. A staff member exercising delegated powers would simultaneously be subject to Authority directions (s.36(2)) and acting as the Authority itself (s.49(2)), creating confusion about the legal character of their actions and accountability."},{"severity":"low","section_a":"50(1)","section_b":"50(2)","confidence":0.65,"description":"Section 50(1) permits the Secretary to delegate functions under s.36 (staff arrangements) to an SES employee or acting SES employee. Section 50(2) then states the s.36 functions cannot be delegated to a staff member. Since staff members are APS employees in the Department (s.36(1)) and an SES employee in the Department could also be a 'staff member' whose services are made available to the Authority, there is potential overlap creating uncertainty about which SES employees may receive the delegation."}]},"kimi_summary":{"_metrics":{"completionTokens":567},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose: establishing an independent assessment body for APRA and ASIC. The scope has not expanded beyond this core function."},"complexity_factors":["Multiple cross-references to other Acts (APRA Act, ASIC Act, Privacy Act, Criminal Code, PGPA Act)","Nested definitions: 'entrusted person' has 7 sub-categories, 'protected information' has 4 categories with multiple sub-clauses","Secrecy provisions with multiple layers of exceptions and evidential burdens","Temporal requirements: 5-yearly cycles with specific commencement window (1 July 2023 to 30 June 2028)","Delegation chains involving Minister, Secretary, Authority and staff with varying limitations","Conditional logic in section 40 (offence) with 5 elements plus 2 exception subsections","Interaction between legal professional privilege and compelled disclosure in section 21"],"plain_english_summary":"This Act creates the **Financial Regulator Assessment Authority** — a body that independently reviews how well Australia's two main financial regulators are doing their jobs.\n\n**What it does:**\n- **Regular assessments:** Every 5 years, the Authority must assess the **effectiveness and capability** of **APRA** (the prudential regulator that oversees banks and insurers) and **ASIC** (the corporate and consumer protection regulator)\n- **Ad hoc assessments:** The Minister can request additional assessments on specific matters at any time\n- **Reporting:** Reports go to the Minister, with 5-yearly reports tabled in Parliament within 20 sitting days\n\n**Who's involved:**\n- **3 part-time members** appointed by the Minister — a Chair plus 2 others, chosen for relevant expertise\n- **Staff** are borrowed from the Department (public servants)\n- **Consultants** can be engaged as needed\n\n**Key protections:**\n- **Independence:** The Authority decides how to conduct assessments and what's in reports — no one can direct them on these matters\n- **Cooperation required:** APRA and ASIC must provide information, documents and answer questions\n- **Secrecy rules:** \"Protected information\" (sensitive material from APRA/ASIC) can't be disclosed except in limited circumstances — unauthorised disclosure is a criminal offence (up to 2 years imprisonment)\n- **Legal professional privilege:** Doesn't excuse refusal to provide information, though privilege claims aren't otherwise affected\n\n**Why it matters:**\nThis creates accountability for the regulators themselves — ensuring APRA and ASIC are properly scrutinised for how they protect Australia's financial system and consumers. It was established following recommendations from the Banking Royal Commission about regulatory oversight gaps."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":false,"description":"This Act stays within the original, stated scope: it establishes an independent authority to assess APRA’s and ASIC’s effectiveness and capability and to report to the Minister (s 3). It does not expand regulator powers over private parties nor add new regulatory functions for APRA or ASIC. The Act narrows operational detail (for example, the prohibition on assessing a single case (s 12(2))) and sets out procedures for information handling and ministerial requests (ss 13–16, 39–45), but those are implementation details rather than a substantive change of purpose. The most notable shift in operational scope is the formalisation of ministerial control over the assessment agenda (ss 13–14) coupled with statutory independence over methods and report content (s 19), which is a design choice about oversight rather than an expansion of the Authority’s or regulators’ substantive regulatory remit."},"complexity_factors":["Relatively short and modular: 5 Parts with clear subject‑matter divisions (establishment, functions, members, information management, miscellaneous).","About ~20 defined terms in the interpretation section (not exhaustive in the Act excerpt), including cross‑referenced terms (e.g. 'enforcement body' and 'enforcement related activity' from the Privacy Act) (s 5).","Several limited but important cross‑references to other Commonwealth laws (Public Governance, Performance and Accountability Act 2013; Privacy Act 1988; Criminal Code; Banking/Insurance Acts; Financial Accountability Regime Act) (ss 11, 5, 40(4), 40(3)).","Conditional secrecy rules with nested exceptions and carved‑out authorisations (s 40 includes exceptions and cross‑references to multiple statutes; s 39 requires consultation prior to reporting).","Ministerial directions over scope (ss 13–14) combined with statutory independence on methodology/content (s 19) create a two‑axis decision structure that requires care when interpreting institutional boundaries.","Delegation provisions across Minister, Authority and Secretary (ss 48–50) add administrative complexity about who may act and under what limits.","Rules‑making power with express prohibitions (s 51) — limited but requires checking of legislative instruments for procedural detail.","Criminal penalty provision (s 40) introduces higher‑stakes obligations for entrusted persons and evidential burdens (noted in accompanying Criminal Code references)."],"plain_english_summary":"**What this Act does (mechanically)\n\n- Establishes the Financial Regulator Assessment Authority (the Authority) as a small, independent body (a Chair and 2 other members) to assess the performance and capability of the two main Australian financial regulators: APRA (prudential regulator) and ASIC (market/conduct regulator) (ss 9–12, 24). \n- Requires the Authority to carry out a comprehensive assessment of each regulator at least once every 5 financial years, and to report to the Minister (ss 12, 13, 17). The Minister must cause the 5‑yearly reports to be tabled in each House of Parliament (s 17). \n- Allows the Minister to request ad hoc assessments or to ask the Authority to consider (or not consider) particular matters when doing its 5‑yearly assessments; the Authority must comply with such requests (ss 13–14). \n- Gives the Authority broad powers to collect information from APRA and ASIC, and requires cooperation by those agencies and their members and staff (s 20). \n- Defines a category of \"protected information\" obtained from APRA/ASIC, forbids including protected information in Authority reports (except if already public), and strictly controls use and disclosure of that information with criminal penalties for unauthorised disclosure (ss 5, 39–41, 40). \n- Permits certain authorised disclosures: for carrying out the Authority’s functions; to the Secretary, APRA or ASIC; to enforcement bodies where reasonably necessary; or where the Secretary certifies public‑interest disclosure (ss 42–45). \n- Places the Authority administratively within an existing Department (for governance/financial purposes), uses APS staff made available by the Secretary, and allows the Secretary to engage consultants (ss 11, 36–37). \n- Includes governance and administrative rules: appointment, terms, remuneration, conflict rules for members; delegation powers; limited rule‑making by the Minister (ss 24–33, 48–51). \n\nWho this affects\n\n- APRA and ASIC: required to cooperate fully and to provide documents and information on a reasonable timeframe; they receive proposed reports and may comment before final reports are delivered (ss 16, 20). \n- Members, staff and associated consultants (\"entrusted persons\"): subject to secrecy, permitted uses and criminal sanctions for unauthorised disclosures (ss 5, 40–45). \n- The Minister and Department Secretary: appoint members, set terms of reference for ad hoc or 5‑yearly assessments, provide staff, and (in limited circumstances) certify public‑interest disclosures (ss 13–14, 36, 45). \n- Parliament and the public: 5‑yearly reports are tabled and hence public; ad hoc reports may be subject to publication rules (ss 16–17). \n\nWhy it matters — stated purpose then practical implications\n\n- Stated purpose: to provide independent assessments of APRA’s and ASIC’s effectiveness and capability (s 3). \n\nPractical implications and trade‑offs (linked to sections):\n\n- Independent scrutiny and transparency: periodic, independent review and tabling of 5‑yearly reports create an institutional check on regulator capacity and performance (ss 12, 17). That can influence regulator resource requests, priorities and organisational reform. \n- Ministerial control over scope: while the Authority has statutory independence in how it conducts assessments and writes reports, the Minister can direct what matters are considered or excluded for both the 5‑yearly and ad hoc assessments (ss 13(2)–(5), 14(1)–(5)). Mechanically, this concentrates agenda control of assessment topics with the Minister even though the Authority controls methodology and content of reports (s 19). \n- Information access vs confidentiality: the Authority has strong access powers (s 20) and APRA/ASIC cannot rely on legal professional privilege to refuse to supply information (s 21). At the same time, the Act creates a detailed secrecy regime for \"protected information\" with criminal penalties for unauthorised disclosure (s 40). The combination is designed to give the Authority access to sensitive material while protecting confidentiality and national/security interests (ss 5, 39–45). \n- Implementation and cost: the Authority is small (3 part‑time members) and relies on Department staff and consultants (ss 24, 36–37). Operational costs (staff time, consultants, administrative overhead) are borne by the Commonwealth budget (implied by PGPA prescription and use of Department staff) and will be recurring every 5 years plus ad hoc requests. \n- Compliance and administrative burden on APRA/ASIC: they must produce documents and answer questions within reasonable timeframes (s 20). That imposes internal costs — diverted staff time and record retrieval — particularly if investigations are broad. \n- Protection for cooperating agency staff: contributors from APRA/ASIC and other cooperating staff are given civil‑liability protection for good‑faith cooperation (s 47). That lowers personal litigation risk for staff who assist the Authority. \n- Risks to business regulatory certainty and market participants: the Act does not change APRA’s or ASIC’s statutory powers over regulated firms; it adds an external assessor that may make public findings every 5 years. Those findings could affect market perceptions of regulator effectiveness, potentially influencing investor confidence or compliance costs indirectly. The Act does not create new regulatory powers over private firms (see functions in s 12). \n\nIncentives and discretion\n\n- Who decides and who pays: the Minister appoints members, may set matters to be considered, and the Department provides staff (ss 24, 13, 36). The Commonwealth funds the Authority’s work through departmental appropriations (implied — s 11, PGPA linkage). \n- Incentives for APRA/ASIC: cooperating with the Authority reduces friction and the risk of unfavourable findings that might be tabled publicly (s 16). \n- Incentives for the Authority: statutory independence (s 19) gives it discretion over methods and conclusions, subject to the Minister’s right to specify scope. That creates an institutional balance between political accountability (Minister sets scope) and methodological independence (Authority determines conduct of assessments). \n\nKey operational and legal caveats\n\n- The Authority must not include protected information in reports; it must consult the source agency before reporting to ensure protected information is removed (s 39). \n- Unauthorised disclosure by entrusted persons attracts a criminal penalty (imprisonment for up to 2 years) (s 40). \n- The Secretary can permit specific public‑interest disclosures and may impose conditions; such certificates are reviewable (s 45). \n- The Authority may rely on external assessments and reviews when conducting its functions (s 15). \n\nBottom line (plain): The Act sets up a small, statutorily independent assessor whose role is to evaluate whether APRA and ASIC are effective and capable. It gives the Authority powers to compel information from those regulators, protects sensitive material, allows ministerial direction over assessment topics, and embeds the Authority within an existing Department for staffing and governance. The mechanical effects are increased formal scrutiny of the two regulators, specified information flows from the regulators to the Authority, confidentiality constraints with criminal sanctions, and ministerial control over the assessment agenda (ss 12–20, 39–45)."}},"importantCases":[],"_links":{"self":"/api/acts/financial-regulator-assessment-authority-act-2021","history":"/api/acts/financial-regulator-assessment-authority-act-2021/history","analysis":"/api/acts/financial-regulator-assessment-authority-act-2021/analysis","conflicts":"/api/acts/financial-regulator-assessment-authority-act-2021/conflicts","importantCases":"/api/acts/financial-regulator-assessment-authority-act-2021/important-cases","documents":"/api/acts/financial-regulator-assessment-authority-act-2021/documents"}}