Acts Amendment and Repeal (Financial Sector Reform) Act 1999 (Western Australia)

This Act implements Western Australia’s local steps to give effect to the Commonwealth’s financial-sector reform package by removing state regulatory regimes for certain mutual and small financial institutions and enabling their transition into the Commonwealth regulatory framework. The Act repeals the state Financial Institutions (Western Australia) Act 1992, the Friendly Societies (Western Australia) Act 1999 and related taxing and WAFIA/AFIC legislation (s 5), and provides transitional and saving provisions to preserve rights, liabilities, regulatory powers and administrative arrangements that arise before the transfer date (see the Preamble and Parts 1 and 2).

Mechanically, the Act does several classes of things:

Converts transferring financial institutions into companies under the Corporations Law as at the transfer date, without creating a new legal entity (s 6(2)-(4)). The conversion relies on Schedule 4 of the Corporations Law (s 6(1)-(2)).
Implements the operation of Commonwealth transfers of business machinery for authorised deposit-taking institutions (ADIs) and life insurers by adopting the Commonwealth Financial Sector (Transfers of Business) Act (the FS(TB) Act (Cwlth)) definitions and by treating receiving bodies as successors in law for both voluntary (s 9) and compulsory transfers (s 10). Certificates issued under the Commonwealth Act are recognised and may be evidenced and given effect by authorised APRA officers (ss 8, 11-15).
Preserves and adapts provisions of the pre-transfer Codes (AFIC, Financial Institutions and Friendly Societies Codes) so that conduct, offences and enforcement actions that arose before the transfer date continue to be actionable and investigable, with APRA and ASIC stepping into roles previously exercised by AFIC or WAFIA where necessary (see Divisions 6-9, especially ss 50-53).

CrestWestern Australia

Acts Amendment and Repeal (Financial Sector Reform) Act 1999

Reprinted under the Reprints Act 1984 as
at 13 April 2012

Western Australia

Acts Amendment and Repeal (Financial Sector Reform) Act 1999

Contents

Part 1 — Preliminary

Short title 3
Commencement 3
Terms used 3
Crown bound 6

Part 2 — Repeals and transitional provisions

Division 1 — Repeals

Various Acts repealed 7

Division 2 — Certain financial institutions to become companies

Transferring financial institutions to become companies 7

Division 3 — Transfers of business of ADIs and life insurance companies

Interpretation: FS(TB) Act (Cwlth) definitions apply 8
Authorised APRA officer 8
Voluntary transfers 8
Compulsory transfers 9
Certificates evidencing operation of this Division 11
Interests in land of transferring bodies 11
Certificates in relation to assets other than land 11
Documents purporting to be certificates 12
Relationship of Division with instruments and other laws 12

Division 4 — Provisions relating to uncompleted mergers and transfers of engagements

Mergers and transfers of engagements started under Financial Institutions (Western Australia) Code 13
Mergers and transfers of engagements started under Friendly Societies (Western Australia) Code 15

Division 5 — Provisions relating to societies whose registration has been cancelled

Terms used 18
Application of this Division 18
Society’s property vested in ASIC 19
ASIC may act on behalf of society 20
Recovery from society’s insurer 20
Society may be established as a company 20
ASIC’s functions for this Division 21

Division 6 — Provisions relating to AFIC

Subdivision 1 — AFIC to continue to have certain powers

AFIC continues to have certain powers 22
Delegation by AFIC 22

Subdivision 2 — Information may be given to APRA or ASIC

Information may be given 23

Subdivision 3 — Transfer of AFIC’s assets and liabilities

Transfer of assets and liabilities 23

Subdivision 4 — Proceedings involving AFIC

Civil proceedings continued and rights of action preserved 23
Certain criminal proceedings continued 24

Division 7 — Provisions relating to WAFIA

Subdivision 1 — WAFIA to continue to exist for certain purposes

WAFIA continues to exist for certain purposes 24
Contracts and agreements with WAFIA continue 25
WAFIA’s final report 26
Delegation by WAFIA 26
Dissolution of WAFIA 26

Subdivision 2 — Provisions about WAFIA’s staff

Term used: employees 27
Staff to transfer to APRA under transfer agreement 27
Effect of WAFIA employee becoming employed by APRA or Australian Public Service 27
Statement of accrued benefits 28

Subdivision 3 — Information may be given to APRA or ASIC

Information may be given 28

Subdivision 4 — Transfer of WAFIA’s assets and liabilities

Transfer of assets and liabilities 29

Subdivision 5 — Proceedings involving WAFIA

Civil proceedings continued and rights of action preserved 29
Certain criminal proceedings continued 30

Division 8 — Provisions relating to statutory funds

Terms used 30
Statutory funds continued until abolished 30
Supervision Fund 31
Credit Unions Contingency Fund 32

Division 9 — Conferral of functions on APRA and ASIC

Subdivision 1 — General

Conferral of functions on APRA 32
Conferral of functions on ASIC 33

Subdivision 2 — APRA’s and ASIC’s functions under Codes

Enforcement powers 33
AFIC Code provisions, continued application of 33
Financial Institutions Code provisions, continued application of 35
Friendly Societies Code provisions, continued application of 37

Division 10 — Miscellaneous

Dormant accounts 38
Withdrawable shares in building societies 39
Australian Financial Institutions Appeals Tribunal 39
State taxes not chargeable 40
Regulations 40

Notes

Compilation table 41

Crest Reprinted under the Reprints Act 1984 as
at 13 April 2012

Western Australia

Acts Amendment and Repeal (Financial Sector Reform) Act 1999

An Act —

to repeal the —
Financial Institutions (Western Australia) Act 1992;
Financial Institutions (Taxing) Act 1992;
Western Australian Financial Institutions Authority Act 1992;
Friendly Societies (Western Australia) Act 1999; and
Friendly Societies (Taxing) Act 1999;
to enact transitional provisions; and
to amend various Acts 2 and repeal the Private Savings Bank Act 1924 3,

in order to provide for the reform of the financial sector.

Reasons for enacting this Act

In order to reform the financial sector, the Parliament of the Commonwealth of Australia is enacting legislation to amend various Acts of the Commonwealth to allow for the regulatory responsibility for building societies, credit unions and friendly societies to be transferred from the States and Territories to the Commonwealth.
This Act is enacted to facilitate the transfer of the regulatory responsibility for building societies, credit unions and friendly societies from Western Australia to the Commonwealth.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Acts Amendment and Repeal (Financial Sector Reform) Act 1999 1.

2. Commencement

(1) The provisions of this Act come into operation on the day on which this Act receives the Royal Assent or on a day fixed by proclamation, according to the Table to this subsection 1.

Table

Provision	Commencement
Part 1	Royal Assent
Part 2 Divisions 1 to 5	Proclamation
Part 2 Division 6 Subdivisions 1 to 3	Royal Assent
Part 2 Division 6 Subdivision 4	Proclamation
Part 2 Division 7 Subdivisions 1 to 4	Royal Assent
Part 2 Division 7 Subdivision 5	Proclamation
Part 2 Division 8	Royal Assent
Part 2 Division 9	Proclamation
Sections 54, 55 and 58	Royal Assent
Sections 56 and 57	Proclamation
Part 3	Proclamation

(2) Different days may be fixed in a proclamation for different provisions and for different parts of the provisions referred to in the Table to subsection (1) that commence on a day fixed by proclamation.

3. Terms used

In this Act, unless the contrary intention appears —

AFIC means the Australian Financial Institutions Commission established by the AFIC Act;

AFIC Act means the Australian Financial Institutions Commission Act 1992 of Queensland;

AFIC Code means the AFIC (Western Australia) Code;

AFIC (Western Australia) Code means the provisions applying before the transfer date because of section 5 of the Financial Institutions (Western Australia) Act 1992 and includes the AFIC (Western Australia) Regulations;

AFIC (Western Australia) Regulations means the provisions applying before the transfer date because of section 6 of the Financial Institutions (Western Australia) Act 1992;

APRA means the Australian Prudential Regulation Authority established under the APRA Act;

APRA Act means the Australian Prudential Regulation Authority Act 1998 of the Commonwealth;

APRA employee means a person appointed under section 45 of the APRA Act;

ASIC means the Australian Securities and Investments Commission established under the Australian Securities and Investments Commission Act 1989 of the Commonwealth 4;

authorised APRA officer, in a provision of Part 2 Division 3, means a person authorised under section 8 to perform or exercise the functions of an authorised APRA officer under that provision;

employee, in relation to AFIC or WAFIA, includes a person engaged by AFIC or WAFIA on a contract for services;

enforcement power means a function relating to —

(a) the investigation of an offence; or

(b) the institution and carrying on of a prosecution of an offence; or

Financial Institutions Code means the Financial Institutions (Western Australia) Code;

financial institutions legislation has the same meaning as in section 8 of the AFIC Code;

Financial Institutions (Western Australia) Code means the provisions applying before the transfer date because of section 8 of the Financial Institutions (Western Australia) Act 1992 and includes the Financial Institutions (Western Australia) Regulations;

Financial Institutions (Western Australia) Regulations means the provisions applying before the transfer date because of section 9 of the Financial Institutions (Western Australia) Act 1992;

fiscal bodies legislation has the same meaning as in section 3 of the AFIC Code;

Friendly Societies Code means the Friendly Societies (Western Australia) Code;

Friendly Societies (Western Australia) Code means the provisions applying before the transfer date because of section 5 of the Friendly Societies (Western Australia) Act 1999 and includes the Friendly Societies (Western Australia) Regulations;

Friendly Societies (Western Australia) Regulations means the provisions in force before the transfer date under Part 4 of the Friendly Societies (Western Australia) Act 1999;

FSR Act (Cwlth) means the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth;

FS(TB) Act (Cwlth) means the Financial Sector (Transfers of Business) Act 1999 of the Commonwealth 5;

relevant Commonwealth body means APRA or ASIC;

SSA means State Supervisory Authority;

transfer date means the date that, under section 3(16) of the FSR Act (Cwlth), is specified as the transfer date for the purposes of that Act;

WAFIA means the Western Australian Financial Institutions Authority established under the Western Australian Financial Institutions Authority Act 1992.

4. Crown bound

(1) This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this section makes the Crown in any of its capacities liable to be prosecuted for an offence.

Part 2 — Repeals and transitional provisions

Division 1 — Repeals

5. Various Acts repealed

The following Acts are repealed —

(a) Financial Institutions (Western Australia) Act 1992;

(b) Financial Institutions (Taxing) Act 1992;

(d) Friendly Societies (Western Australia) Act 1999;

(e) Friendly Societies (Taxing) Act 1999.

Division 2 — Certain financial institutions to become companies

6. Transferring financial institutions to become companies

(1) In this section —

previous governing Code has the same meaning as it has in Schedule 4 of the Corporations Law;

transferring financial institution of this jurisdiction has the same meaning as it has in Schedule 4 of the Corporations Law.

(2) On the transfer date, each transferring financial institution of this jurisdiction is taken, in accordance with Schedule 4 of the Corporations Law of Western Australia, to become registered as a company under that Law under the name under which the institution was registered under the previous governing Code immediately before the transfer date.

(3) Subsection (2) applies even if the institution is an externally‑administered body corporate immediately before the transfer date.

(4) Registration under the Corporations Law of Western Australia of a transferring financial institution of this jurisdiction as a company does not create a new legal entity.

Division 3 — Transfers of business of ADIs and life insurance companies

7. Interpretation: FS(TB) Act (Cwlth) definitions apply

Unless the contrary intention appears, words defined in the FS(TB) Act (Cwlth) have the same respective meanings in this Division.

8. Authorised APRA officer

(1) APRA may, in writing, authorise a person who is an APRA board member, or an APRA staff member, to perform the functions of an authorised APRA officer under a particular provision of this Division.

(2) The functions necessary for the purposes of this section are conferred on APRA.

9. Voluntary transfers

(1) The purpose of this section is to facilitate voluntary transfers of business under Part 3 of the FS(TB) Act (Cwlth) for regulated bodies.

(2) This section applies when a certificate of transfer issued under section 18 of the FS(TB) Act (Cwlth) comes into force under Division 3 of Part 3 of that Act.

(3) The receiving body is taken to be the successor in law of the transferring body, to the extent of the transfer.

(4) In particular —

(a) if the transfer is a total transfer, all the assets and liabilities of the transferring body become respectively the assets and liabilities of the receiving body without any transfer, conveyance or assignment; and

(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body included in the list of assets and liabilities specified in the statement of detail become respectively assets and liabilities of the receiving body without any transfer, conveyance or assignment; and

(c) to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring body apply to the receiving body.

(5) If there is an approved section 20 statement in relation to the transfer that specifies —

(a) that particular things are to happen or are taken to be the case, those things are taken to happen, or to be the case, in accordance with the statement; or

(b) a mechanism for determining things that are to happen or are taken to be the case, things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.

10. Compulsory transfers

(1) The purpose of this section is to facilitate compulsory transfers of business under Part 4 of the FS(TB) Act (Cwlth) for regulated bodies.

(2) This section applies when a certificate of transfer issued under section 33 of the FS(TB) Act (Cwlth) comes into force under Division 3 of Part 4 of that Act.

(3) The receiving body is taken to be the successor in law of the transferring body, to the extent of the transfer.

(4) In particular —

(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body that are included in the list, referred to in section 33(2)(c) of the FS(TB) Act (Cwlth), included in, or attached to, the certificate of transfer become respectively assets and liabilities of the receiving body without any transfer, conveyance or assignment; and

(c) to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring body apply to the receiving body.

(5) If the certificate of transfer includes provisions of a kind referred to in section 33(3) of the FS(TB) Act (Cwlth) specifying —

(a) that particular things are to happen or are taken to be the case — those things are taken to happen or to be the case, in accordance with those provisions; or

(b) a mechanism for determining things that are to happen or are taken to be the case — things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.

(6) If there is an approved section 30 statement in relation to the transfer that specifies —

(a) that particular things are to happen or are taken to be the case — those things are taken to happen, or to be the case, in accordance with the statement; or

11. Certificates evidencing operation of this Division

(1) An authorised APRA officer may, by a certificate in writing signed by the officer, certify anything in relation to the effect of this Division, and, in particular may certify that —

(a) a particular asset of a transferring body has become a transferred asset of a receiving body; or

(b) a particular liability of a transferring body has become a transferred liability of a receiving body.

(2) For all purposes and in all proceedings, a certificate under subsection (1) is evidence of the matters certified.

12. Interests in land of transferring bodies

(1) Without prejudice to the generality of this Division and despite anything to the contrary in any other Act or law, if, immediately before the date on which an asset of a transferring body becomes a transferred asset of a receiving body, the transferring body is the registered proprietor of an interest in land under the Transfer of Land Act 1893, then on and after that date —

(a) the receiving body is to be taken to be the registered proprietor of that interest in land; and

(b) the receiving body has the same rights and remedies in respect of that interest as the transferring body had.

(2) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and certificate of an authorised APRA officer, must make any amendments in the Register that are necessary because of the operation of this Division.

13. Certificates in relation to assets other than land

(1) This section applies if —

(a) an asset, other than land or an interest in land, becomes, under this Division, an asset of a receiving body; and

(b) there is lodged with the entity who has, under the law, responsibility for keeping a register or record relating to assets of that kind a certificate of an authorised APRA officer that —

(i) identifies the asset; and

(ii) states the asset has, under this Division, become an asset of the receiving body.

(2) The entity may —

(a) register or record the matter in the same manner as transactions in relation to assets of that kind are registered or recorded; and

(b) deal with, and give effect to, the certificate.

(3) This section does not affect the operation of the Corporations Law.

14. Documents purporting to be certificates

A document purporting to be a certificate issued under this Division by an authorised APRA officer is to be taken to be such a certificate and to have been properly issued unless the contrary is established.

15. Relationship of Division with instruments and other laws

(1) This Division has effect despite anything in a contract, deed, undertaking, agreement or other instrument.

(2) Nothing done under this Division —

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

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

(i) a law of the State;

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

(3) Without limiting subsection (1), if, apart from this section, the advice or consent of a person would be necessary in a particular respect, the advice is taken to have been obtained or the consent is taken to have been given.

Division 4 — Provisions relating to uncompleted mergers and transfers of engagements

16. Mergers and transfers of engagements started under Financial Institutions (Western Australia) Code

(1) In this section —

financial institutions agreement has the same meaning as in section 3 of the AFIC Code;

foreign society means a body corporate that, before the transfer date, was a society under the financial institutions legislation of another participating State, whether or not it was registered as a foreign society under Part 11 of the Financial Institutions (Western Australia) Code;

participating State means a State that, immediately before the transfer date, was a party to the financial institutions agreement and in which, immediately before that date, the foreign society was incorporated;

relevant Financial Institutions Code means —

(a) in relation to a society, the Financial Institutions (Western Australia) Code; or

(b) in relation to a foreign society, the law of another participating State corresponding to the Financial Institutions (Western Australia) Code;

relevant SSA means —

(a) in relation to a society, WAFIA; or

(b) in relation to a foreign society, the State supervisory authority under the financial institutions legislation of the other participating State;

society means an entity that, immediately before the transfer date, was a society under the Financial Institutions (Western Australia) Code.

(2) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Financial Institutions (Western Australia) Code and immediately before that date has not been completed, or been given effect.

(3) The transfer of engagements or merger may be completed, or be given effect, under Part 7 of the Financial Institutions (Western Australia) Code on or after the transfer date and, for that purpose, that Part, and other provisions of the Code relevant to that Part, continue to apply as if section 5 had not commenced.

(4) For the purpose of the application mentioned in subsection (3) —

(a) a reference in the Financial Institutions (Western Australia) Code to the SSA is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Financial Institutions (Western Australia) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body; and

(5) For the purposes of this section a transfer of engagements was commenced before the transfer date under Part 7 of the Financial Institutions (Western Australia) Code if, before that date —

(a) one of the following conditions was satisfied in relation to each society or foreign society involved —

(i) the transfer was approved by a special resolution of the society or foreign society, in accordance with the relevant Financial Institutions Code;

(ii) the relevant SSA made a determination, under the relevant Financial Institutions Code, that the transfer may be approved by the board of the society or foreign society;

(b) in a case where each entity involved in the transfer is a society, WAFIA gave a direction, under the Financial Institutions (Western Australia) Code, requiring the transfer.

(6) For the purposes of this section, a merger was commenced before the transfer date if, before that date, one of the following conditions was satisfied in relation to each society or foreign society involved —

(a) the merger was approved by a special resolution of the society or foreign society, in accordance with the relevant Financial Institutions Code;

(b) the relevant SSA made a determination, under the relevant Financial Institutions Code, that the merger may be approved by the board of the society or foreign society.

(7) The functions of the SSA that are necessary for the purposes of this section are conferred on each relevant Commonwealth body.

17. Mergers and transfers of engagements started under Friendly Societies (Western Australia) Code

(1) In this section —

financial institutions agreement has the same meaning as in section 3 of the AFIC Code;

foreign society means a body corporate that, before the transfer date, was a society under the friendly societies legislation of another participating State, whether or not it was registered as a foreign society under Part 11 of the Friendly Societies (Western Australia) Code;

friendly societies legislation has the same meaning as in section 8A of the AFIC Code;

relevant Friendly Societies Code means —

(a) in relation to a society, the Friendly Societies (Western Australia) Code; or

(b) in relation to a foreign society, the law of another participating State corresponding to the Friendly Societies (Western Australia) Code;

relevant SSA means —

(a) in relation to a society, WAFIA; or

(b) in relation to a foreign society, the State supervisory authority under the friendly societies legislation of the other participating State;

society means an entity that, immediately before the transfer date, was a society under the Friendly Societies (Western Australia) Code.

(2) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Friendly Societies (Western Australia) Code and immediately before that date has not been completed, or been given effect.

(3) The transfer of engagements or merger may be completed, or be given effect, under Part 7 of the Friendly Societies (Western Australia) Code on or after the transfer date and, for that purpose, that Part, and other provisions of the Code relevant to that Part, continue to apply as if section 5 had not commenced.

(4) For the purposes of the application mentioned in subsection (3) —

(a) a reference in the Friendly Societies (Western Australia) Code to the SSA is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Friendly Societies (Western Australia) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body; and

(5) For the purposes of this section a transfer of engagements was commenced before the transfer date under Part 7 of the Friendly Societies (Western Australia) Code if, before that date —

(a) one of the following conditions was satisfied in relation to each society or foreign society involved —

(i) the transfer was approved by a special resolution of the society or foreign society, in accordance with the relevant Friendly Societies Code;

(ii) the relevant SSA made a determination, under the relevant Friendly Societies Code, that the transfer may be approved by the board of the society or foreign society;

(b) in a case where each entity involved in the transfer is a society, WAFIA gave a direction, under the Friendly Societies (Western Australia) Code, requiring the transfer.

(a) the merger was approved by a special resolution of the society or foreign society in accordance with the relevant Friendly Societies Code;

(b) the relevant SSA made a determination, under the relevant Friendly Societies Code, that the merger may be approved by the board of the society or foreign society.

(7) The functions of the SSA that are necessary for the purposes of this section are conferred on each relevant Commonwealth body.

Division 5 — Provisions relating to societies whose registration has been cancelled

18. Terms used

In this Division —

society means —

(a) a society under the Financial Institutions Code or the Friendly Societies Code; or

(b) a building society, other than a terminating building society, under the Building Societies Act 1976 6 or a corresponding previous enactment; or

(c) a credit union under the Credit Unions Act 1979 7 or a corresponding previous enactment, other than a body that, after the commencement of the Credit Unions Act 1979 7, was or continued to be registered under the Co‑operative and Provident Societies Act 1903; or

(d) a friendly society under the Friendly Societies Act 1894 8 or a corresponding previous enactment; or

(e) an entity of a prescribed class or description.

19. Application of this Division

This Division applies if, before the transfer date, a society’s registration has been cancelled under —

(a) the Financial Institutions Code; or

(b) the Friendly Societies Code; or

(d) the Credit Unions Act 1979 7 or a corresponding previous enactment; or

(e) the Friendly Societies Act 1894 8 or a corresponding previous enactment; or

(f) any other written law prescribed by the regulations.

20. Society’s property vested in ASIC

(1) If a society whose registration has been cancelled as mentioned in section 19 held property on trust and the property, having become vested in WAFIA, subsequently vests in ASIC by virtue of section 41, ASIC may —

(a) continue to act as trustee; or

(b) apply to a court for the appointment of a new trustee.

(2) If a society referred to in subsection (1) had property that it did not hold on trust, ASIC may —

(a) dispose of or deal with the property as it sees fit; and

(b) apply any money it receives to —

(i) defray expenses incurred by ASIC in exercising its powers in relation to the society; and

(ii) make payments authorised by subsection (3),

and must deal with the rest (if any) under Part 9.7 of the Corporations Law which is deemed to apply as if the society had been a company.

(3) The property remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in ASIC.

(4) ASIC’s obligation under subsection (3) is limited to satisfying the liabilities out of the society’s property to the extent that the property is properly available to satisfy those liabilities.

(5) ASIC must keep —

(a) a record of property that it knows is vested in it under section 41; and

(b) a record of its dealings with that property; and

(d) all accounts, vouchers, receipts and papers relating to the property and that money.

21. ASIC may act on behalf of society

ASIC may do an act on behalf of the society or the society’s liquidator if ASIC is satisfied the society or liquidator would be bound to do the act if the society still existed.

22. Recovery from society’s insurer

A person may recover from an insurer of the society an amount that was payable to the society under the insurance contract if —

(a) the society had a liability to the person; and

(b) the insurance contract covered the liability immediately before the cancellation of the registration.

23. Society may be established as a company

(1) ASIC may establish a society as a company if ASIC is satisfied that the society’s registration should not have been cancelled.

(2) A court may make an order that ASIC establish a society as a company if —

(a) an application for so establishing a society is made to the court —

(i) by a person aggrieved by the cancellation of the society’s registration; or

(ii) by a former liquidator of the society;

and

(b) the court is satisfied that it is just that the society be so established.

(3) If the court makes an order under subsection (2), it may —

(a) validate anything done between the cancellation of the society’s registration and its establishment as a company; and

(b) make any other order it considers appropriate.

(4) ASIC must give notice of the establishment of a company in the Commonwealth of Australia Gazette and, if it exercises its power under subsection (1) in response to an application by a person, it must also give notice to the applicant.

(5) If a society is established as a company, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution of this jurisdiction as referred to in Division 2.

(6) A person who was a director of a society immediately before its registration was cancelled becomes a director of the company as which it is established under this section as from the time when ASIC or a court so establishes it.

(7) Any property of the society that is still vested in ASIC revests in the company so established and, if the society held particular property subject to a security or other interest or claim, the society takes the property subject to that interest or claim.

24. ASIC’s functions for this Division

The functions necessary for the purposes of this Division are conferred on ASIC.

Division 6 — Provisions relating to AFIC

Subdivision 1 — AFIC to continue to have certain powers

25. AFIC continues to have certain powers

(1) This section applies despite —

(a) the repeal of the AFIC Act by the Financial Sector Reform (Queensland) Act 1999 of Queensland; and

(b) the repeal by section 5 of the Financial Institutions (Western Australia) Act 1992 and of the Friendly Societies (Western Australia) Act 1999.

(2) While AFIC continues in existence under the Financial Sector Reform (Queensland) Act 1999 of Queensland, AFIC has power —

(a) to do any act in Western Australia that AFIC considers necessary or expedient to do for any of the purposes for which it continues in existence; and

(b) to do any act in respect of a society that is or was registered under the Financial Institutions Code or the Friendly Societies Code that AFIC considers necessary or expedient to do for any of the purposes for which it continues in existence; and

26. Delegation by AFIC

(1) AFIC’s board may delegate AFIC’s powers to an appropriately qualified employee of AFIC.

(2) In subsection (1) —

appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.

Subdivision 2 — Information may be given to APRA or ASIC

27. Information may be given

(1) This section applies to —

(a) a director of AFIC’s board; and

(b) an employee of AFIC; and

(d) a person who has been a person mentioned in paragraph (a), (b) or (c).

(2) A person to whom this section applies may disclose to APRA or ASIC information the person acquired while engaged in the administration of the fiscal bodies legislation.

(3) This section applies despite section 155 of the AFIC Code and section 477 of the Friendly Societies Code.

Subdivision 3 — Transfer of AFIC’s assets and liabilities

28. Transfer of assets and liabilities

(1) The Queensland Minister administering the Financial Sector Reform (Queensland) Act 1999 of Queensland may enter into a transfer agreement under Division 3 of Part 1 of Schedule 8 of the FSR Act (Cwlth) connected with the transfer of AFIC’s assets or liabilities to APRA or ASIC.

(2) The transfer agreement has effect according to its terms.

Subdivision 4 — Proceedings involving AFIC

29. Civil proceedings continued and rights of action preserved

(1) This section applies to a proceeding —

(a) whether or not it arose or arises under the fiscal bodies legislation; and

(b) regardless of where it arose or arises.

(2) For the purposes of a proceeding commenced before the transfer date to which AFIC was a party immediately before that date, the State of Queensland is substituted for AFIC as a party to the proceeding.

(3) For the purposes of a proceeding not commenced before the transfer date and which could if commenced after the date be brought against AFIC, or but for the commencement of section 5 and the dissolution of AFIC, could have been brought against AFIC, the proceeding may instead be brought against the State of Queensland.

(4) For the purposes of this section, evidence that would have been admissible for or against AFIC is admissible for or against the State of Queensland.

(5) This section does not apply to a proceeding for an offence.

30. Certain criminal proceedings continued

(1) This section applies to a proceeding for an offence brought under section 63 of the AFIC Code by AFIC, or a person authorised in writing by AFIC, that commenced before the transfer date but was not completed before the date.

(2) On and after the transfer date, the proceeding may continue to be prosecuted by either APRA or ASIC in place of AFIC or the person authorised by AFIC, and APRA or ASIC may be substituted in the proceeding for AFIC or the person.

(3) The functions necessary for this section are conferred on APRA and ASIC.

Division 7 — Provisions relating to WAFIA

Subdivision 1 — WAFIA to continue to exist for certain purposes

31. WAFIA continues to exist for certain purposes

(1) This section applies despite the repeal by section 5 of the Western Australian Financial Institutions Authority Act 1992.

(2) WAFIA and its board continue in existence, but only for the following purposes —

(a) to give effect to matters relating to the transfer, under a law of the Commonwealth or of another State or a Territory or this Act, of any of its functions under the fiscal bodies legislation to APRA or ASIC;

(b) to prepare reports and financial statements, including the reports required under the Financial Administration and Audit Act 1985 9 and section 33;

(d) winding up itself (including realising its assets and discharging its liabilities) as soon as practicable but, in any case, within 12 months after the transfer date.

(3) Without limiting subsection (2)(a), WAFIA must comply with clause 4 of Schedule 4 to the Corporations Law.

(4) WAFIA may do all things necessary or convenient to be done for acting under subsection (2) or (3) including —

(a) engaging employees; and

(b) executing a contract, deed or other document necessary for its winding up.

(5) Also, to the extent it is necessary or desirable to allow WAFIA to act under subsection (2), the provisions of the fiscal bodies legislation and the Western Australian Financial Institutions Authority Act 1992, including the provisions of the Act about WAFIA’s board and the board’s directors, continue to apply despite the repeal of all or any of the legislation or the Act.

32. Contracts and agreements with WAFIA continue

The repeal of the Western Australian Financial Institutions Authority Act 1992 does not of itself terminate a contract or other agreement between WAFIA and another person.

33. WAFIA’s final report

WAFIA’s board is to report, as required by section 66 of the Financial Administration and Audit Act 1985 9, for the period from the 30 June preceding the day when WAFIA is dissolved to the day on which it is dissolved, and Division 14 of Part II of that Act applies as if that period were a full financial year.

34. Delegation by WAFIA

(1) WAFIA’s board may delegate WAFIA’s functions to an appropriately qualified employee of WAFIA or to a person appointed under subsection (2).

(2) The Minister may appoint a person to whom WAFIA’s functions may be delegated.

(3) The person appointed holds office at the pleasure of the Minister on such terms and conditions as the Minister determines.

(4) The Minister is to provide the clerical and other assistance that the person reasonably requires for the purposes of performing the functions that are delegated to him or her.

(5) In subsection (1) —

appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.

35. Dissolution of WAFIA

WAFIA is dissolved, and the members of WAFIA’s board go out of office, on the earlier of —

(a) 12 months after the transfer date; or

(b) a date determined by the Minister notice of which is published in the Gazette.

Subdivision 2 — Provisions about WAFIA’s staff

36. Term used: employees

In this Subdivision —

employees, of WAFIA, includes the chief executive officer of WAFIA.

37. Staff to transfer to APRA under transfer agreement

(1) The Minister may enter into a transfer agreement under Division 2 of Part 1 of Schedule 8 of the FSR Act (Cwlth), that determines, or provides for determining, that particular employees of WAFIA become APRA employees on a particular date, not being a date before the transfer date.

(2) The transfer agreement has effect according to its terms.

38. Effect of WAFIA employee becoming employed by APRA or Australian Public Service

(1) This section applies if a person becomes an APRA employee under section 37.

(2) This section also applies if —

(a) a person is appointed to the Australian Public Service under section 81B(1) of the Public Service Act 1922 of the Commonwealth 10 on or after the transfer date; and

(b) immediately before the appointment, the person was an employee of WAFIA.

(3) If the person is the chief executive officer of WAFIA, the chief executive officer’s appointment under the Western Australian Financial Institutions Authority Act 1992 immediately ends.

(4) If the person is another employee of WAFIA, the employee’s employment with WAFIA immediately ends.

(5) A person is not entitled to receive any payment or other benefit, whether under a contract or otherwise, because the person’s appointment or employment ends under this section.

39. Statement of accrued benefits

Before an employee of WAFIA becomes an APRA employee under section 37 or is appointed to the Australian Public Service as mentioned in section 38(2), WAFIA must give the person, and APRA or the Commonwealth Public Service Commissioner, a written statement stating particulars of the benefits to which the person has an accrued entitlement, the person’s remuneration and the person’s length of service with WAFIA.

Subdivision 3 — Information may be given to APRA or ASIC

40. Information may be given

(1) This section applies to —

(a) a director of WAFIA’s board; and

(b) an employee of WAFIA; and

(d) a person who has been a person mentioned in paragraph (a), (b) or (c).

(2) A person to whom this section applies may disclose to APRA or ASIC information the person acquired while engaged in the administration of the fiscal bodies legislation.

(3) This section applies despite section 410 of the Financial Institutions Code and section 477 of the Friendly Societies Code.

Subdivision 4 — Transfer of WAFIA’s assets and liabilities

41. Transfer of assets and liabilities

(1) The Minister may enter into a transfer agreement under Division 3 of Part 1 of Schedule 8 of the FSR Act (Cwlth) connected with the transfer of WAFIA’s assets or liabilities to APRA or ASIC.

(2) The transfer agreement has effect according to its terms.

(3) For the purposes of this section WAFIA’s assets do not include the Supervision Fund referred to in section 44.

Subdivision 5 — Proceedings involving WAFIA

42. Civil proceedings continued and rights of action preserved

(1) This section applies to a proceeding —

(a) whether or not it arose or arises under the fiscal bodies legislation; and

(b) regardless of where it arose or arises.

(2) For the purposes of a proceeding commenced before the transfer date to which WAFIA was a party immediately before that date, the State of Western Australia is substituted for WAFIA as a party to the proceeding.

(3) For the purposes of a proceeding not commenced before the transfer date and which could if commenced after the date be brought against WAFIA, or but for the commencement of section 5 and the dissolution of WAFIA, could have been brought against WAFIA, the proceeding may instead be brought against the State of Western Australia.

(4) For the purposes of this section, evidence that would have been admissible for or against WAFIA is admissible for or against the State of Western Australia.

(5) This section does not apply to a proceeding for an offence.

43. Certain criminal proceedings continued

(1) This section applies to a proceeding for an offence brought under section 404 of the Financial Institutions Code, or section 471 of the Friendly Societies Code, by WAFIA, or a person authorised in writing by WAFIA, that commenced before the transfer date but was not completed before the date.

(2) On and after the transfer date, the proceeding may continue to be prosecuted by either APRA or ASIC in place of WAFIA or the person authorised by WAFIA, and APRA or ASIC may be substituted in the proceeding for WAFIA or the person.

(3) The functions necessary for this section are conferred on APRA and ASIC.

Division 8 — Provisions relating to statutory funds

44. Terms used

In this Division —

Contingency Fund means the Credit Unions Contingency Fund established under section 97 of the Financial Institutions Code;

Supervision Fund means the Supervision Fund established under section 94 of the Financial Institutions Code.

45. Statutory funds continued until abolished

(1) This section applies despite —

(a) the repeal of the Financial Institutions (Queensland) Act 1992 by the Financial Sector Reform (Queensland) Act 1999; and

(b) the repeal by section 5 of the Financial Institutions (Western Australia) Act 1992.

(2) The Supervision Fund and the Contingency Fund continue in existence after the repeals mentioned in subsection (1) until —

(a) in the case of the Supervision Fund, the payments required to be made under section 46 have been made, at which time the fund is abolished; and

(b) in the case of the Contingency Fund, the payments required to be made under section 47 have been made, at which time the fund is abolished.

46. Supervision Fund

WAFIA must pay out of the Supervision Fund at such time or times as WAFIA determines —

(a) to APRA —

(i) such amount in respect of liabilities relating to leave or other entitlements of employees of WAFIA who become employees of APRA, being liabilities existing immediately before the date on which the relevant employees become employees of APRA, as is determined by WAFIA; and

(ii) such amount in respect of any other liabilities of WAFIA that, by reason of this Act, become liabilities of APRA, as is determined by WAFIA;

and

(b) to ASIC —

(i) such amount in respect of liabilities relating to leave or other entitlements of employees of WAFIA who become employees of ASIC, being liabilities existing immediately before the date on which the relevant employees become employees of ASIC, as is determined by WAFIA; and

(ii) such amount in respect of any other liabilities of WAFIA that, by reason of this Act, become liabilities of ASIC, as is determined by WAFIA;

and

(c) to each building society, credit union and friendly society, an amount determined by WAFIA as representing the amount of supervision levy paid by the building society, credit union or friendly society into the supervision fund and unexpended.

47. Credit Unions Contingency Fund

(1) In this section —

contribution accounts, of credit unions, means the parts of the Contingency Fund that, under section 98(10) of the Financial Institutions Code, are treated as a deferred asset in the accounts of the credit unions;

credit union means a credit union under the Financial Institutions Code;

retained earnings has the same meaning as in section 99A of the Financial Institutions Code.

(2) On the day before the transfer date, WAFIA must, under section 99A of the Financial Institutions Code, distribute the whole of retained earnings to the contribution accounts of credit unions.

(3) For the purposes of subsection (2), section 99A(3) of the Financial Institutions Code does not apply.

(4) Immediately after WAFIA complies with subsection (2) it must pay from the Contingency Fund to each credit union the amount standing to the credit union’s credit in the fund.

(5) Subsection (4) applies despite section 103 of the Financial Institutions Code.

Division 9 — Conferral of functions on APRA and ASIC

Subdivision 1 — General

48. Conferral of functions on APRA

(1) APRA has the functions conferred or expressed to be conferred on it by or under this Part.

(2) APRA has power to do acts in Western Australia in the performance of any function conferred or expressed to be conferred on APRA by or under a law of another jurisdiction corresponding to this Part.

(3) The functions necessary for the purposes of Subdivision 2 are conferred on APRA.

49. Conferral of functions on ASIC

(1) ASIC has the functions conferred or expressed to be conferred on it by or under this Part.

(2) ASIC has power to do acts in Western Australia in the performance of any function conferred or expressed to be conferred on ASIC by or under a law of another jurisdiction corresponding to this Part.

(3) The functions necessary for the purposes of Subdivision 2 are conferred on ASIC.

Subdivision 2 — APRA’s and ASIC’s functions under Codes

50. Enforcement powers

(1) In this section —

Code means the AFIC Code, Financial Institutions Code or Friendly Societies Code.

(2) Either relevant Commonwealth body has the same enforcement powers relating to anything done or omitted to be done under a Code before the transfer date as AFIC or WAFIA had immediately before that date.

(3) For the purposes of subsection (2), a Code applies with all necessary changes.

51. AFIC Code provisions, continued application of

(1) The following provisions of the AFIC Code continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 5 had not commenced —

(a) Part 8, other than sections 50, 51, 55 and 58; and

(b) the other provisions of the Code relevant to that Part.

(2) Despite subsection (1), a provision, or part of a provision, applying under that subsection that creates an offence is not limited in its application to anything done or omitted to be done before the transfer date.

(3) For the purposes of the application mentioned in subsection (1) —

(a) a reference in the Code to AFIC is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Code to a financial institution is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a financial institution under the Code; and

(c) in section 52(1) of the Code, the words “the financial institutions scheme” are taken to be omitted and the words “investigating whether an offence against the fiscal bodies legislation has been committed” are taken to be substituted; and

(d) a reference in section 52(1)(a) or (b) of the Code to an employee of AFIC or of a State supervisory authority is taken to be a reference to an employee of either relevant Commonwealth body; and

(e) section 52(5) of the Code is taken to be omitted; and

(f) a reference in section 53(1) or (2) of the Code to the executive director is taken to be a reference to either relevant Commonwealth body; and

(g) a reference in section 53(5) of the Code to officers and employees of the State supervisory authorities is taken to be a reference to officers and employees of either relevant Commonwealth body; and

(h) section 63(1A) and (1B) of the Code are taken to be omitted; and

(i) a reference in section 63(2) of the Code to the Ministerial Council is taken to be a reference to the Minister administering this Act; and

(j) the Code applies with all other necessary changes.

(4) This section does not limit section 50.

52. Financial Institutions Code provisions, continued application of

(1) The following provisions of the Financial Institutions Code continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 5 had not commenced —

(a) Subdivision 1A of Division 2 of Part 2 (other than sections 75, 79 and 82), Part 10 and sections 392, 397, 398 and 404; and

(b) the other provisions of the Code relevant to the provisions referred to in paragraph (a).

(3) For the purposes of the application mentioned in subsection (1) —

(a) a reference in the Code to the SSA is taken to be a reference to either relevant Commonwealth body;

(b) a reference in the Code to a financial body is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a financial body under the Code;

(c) a reference in the Code to a society is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a society under the Code;

(d) in section 76(1) of the Code, the words “the financial institutions legislation” are taken to be omitted and the words “investigating whether an offence against the financial institutions legislation has been committed” are taken to be substituted;

(e) a reference in section 76(1)(a) or (b) of the Code to an employee of the SSA is taken to be a reference to an employee of either relevant Commonwealth body;

(f) section 76(5) of the Code is taken to be omitted;

(g) in the definition of financial body to which this section applies in section 397(1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted;

(h) section 397(2) of the Code is taken to be omitted;

(i) in the definition of financial body to which this section applies in section 398(1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted;

(j) in the definition of prescribed person in section 398(1) of the Code, paragraphs (a) and (b) are taken to be omitted;

(k) section 398(2) of the Code is taken to be omitted;

(l) a reference in section 404(2) of the Code to the Minister is taken to be a reference to the Minister administering this Act;

(m) the Code applies with all other necessary changes.

(4) This section does not limit section 50.

53. Friendly Societies Code provisions, continued application of

(1) The following provisions of the Friendly Societies Code continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 5 had not commenced —

(a) Subdivision 2 of Division 2 of Part 2 (other than sections 31, 35 and 38), Divisions 3 and 4 of Part 4A, Part 10 and sections 460, 465, 466 and 471; and

(b) the other provisions of the Code relevant to the provisions referred to in paragraph (a).

(3) For the purposes of the application mentioned in subsection (1) —

(a) a reference in the Code to the SSA is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Code to a society is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a society under the Code; and

(c) in section 32(1) of the Code, the words “the friendly societies legislation” are taken to be omitted and the words “investigating whether an offence against the friendly societies legislation has been committed” are taken to be substituted; and

(d) a reference in section 32(1)(a) or (b) of the Code to an employee of the SSA is taken to be a reference to an employee of either relevant Commonwealth body; and

(e) section 32(4) of the Code is taken to be omitted; and

(f) in the definition of society to which this section applies in section 465(1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted; and

(g) section 465(2) of the Code is taken to be omitted; and

(h) in the definition of society to which this section applies in section 466(1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted; and

(i) in the definition of prescribed person in section 466(1) of the Code, paragraphs (a) and (b) are taken to be omitted; and

(j) section 466(2) of the Code is taken to be omitted; and

(k) a reference in section 471(2) of the Code to the Minister is taken to be a reference to the Minister administering this Act; and

(l) the Code applies with all other necessary changes.

(4) This section does not limit section 50.

Division 10 — Miscellaneous

54. Dormant accounts

(1) This section applies if —

(a) before the transfer date a society transferred an amount from a person’s deposit account with a society to another account under section 138A(4)(c) of the Financial Institutions Code; and

(b) immediately before the transfer date the amount has not been lawfully totally paid out as mentioned in section 138A(6)(b) of that Code.

(2) Immediately before the transfer date the amount remaining in the other account for the person is taken to have been transferred back to the person’s deposit account as if it had never been classified as a dormant account or closed under section 138A of the Financial Institutions Code.

55. Withdrawable shares in building societies

(1) In this section —

building society means a transferring financial institution of this jurisdiction (within the meaning of Part 1 of Schedule 4 to the Corporations Law) authorised under the Financial Institutions Code to operate as a building society immediately before the transfer date;

withdrawable share means a withdrawable share within the meaning of the Financial Institutions Code.

(2) A person who, immediately before the transfer date, was entitled to a withdrawable share of a building society, is deemed to have become on that date the holder of a deposit with the building society of an amount equal to the amount paid up on the share.

(3) The holder of the deposit continues to have the same voting or other rights (if any) as the holder of the withdrawable share had.

(4) Any withdrawable shares of a building society on issue immediately before the transfer date and converted to deposits under subsection (2) are deemed to have been cancelled.

(5) This section applies subject to such standards or rules about the conversion of withdrawable shares to deposits as are determined by WAFIA.

56. Australian Financial Institutions Appeals Tribunal

(1) In this section —

Code means the AFIC Code, Financial Institutions Code or Friendly Societies Code.

(2) This section applies on the transfer date.

(3) The Australian Financial Institutions Appeals Tribunal established under section 8 of the AFIC Act ceases to exist by reason of the Financial Sector Reform (Queensland) Act 1999 of Queensland.

(4) All applications made to the Australian Financial Institutions Appeal Tribunal under a Code for review of a decision that have not been decided are taken to have been withdrawn.

57. State taxes not chargeable

No stamp duty or other tax or duty is chargeable under any Act in respect of anything effected by or done under this Part, other than Division 3.

58. Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

[Part 3 omitted under the Reprints Act 1984 s. 7(4)(e) and (f).]

dline

Notes

1 This reprint is a compilation as at 13 April 2012 of the Acts Amendment and Repeal (Financial Sector Reform) Act 1999 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Acts Amendment and Repeal (Financial Sector Reform) Act 1999	26 of 1999	29 Jun 1999	Pt. 1, Pt. 2 Div. 6 Subdiv. 1‑3, Pt. 2 Div. 7 Subdiv. 1‑4, Pt. 2 Div. 8, s. 54, 55 and 58: 29 Jun 1999 (see s. 2(1)); Pt. 2 Div. 1‑5, Div. 6 Subdiv. 4, Div. 7 Subdiv. 5, Div. 9, s. 56, 57 and Pt. 3 (other than s. 68): 1 Jul 1999 (see s. 2 and Gazette 30 Jun 1999 p. 2905); s. 68: 18 May 2001 (see s. 2 and Gazette 18 May 2001 p. 2403)
Statutes (Repeals and Minor Amendments) Act 2003 s. 107(5)	74 of 2003	15 Dec 2003	15 Dec 2003 (see s. 2)
*Reprint 1: The Acts Amendment and Repeal (Financial Sector Reform) Act 1999* as at 13 Apr 2012** (includes amendments listed above)

2 The amending provisions in this Act have been omitted under the Reprints Act 1984 s. 7(4)(e).

3 Section 98 of this Act, which repealed the Private Savings Bank Act 1924, has been omitted under the Reprints Act 1984 s. 7(4)(f).

4 Repealed by the Australian Securities and Investments Commission Act 2001 (Cwlth) Act No. 51 of 2001.

5 Now called the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cwlth) Act No. 45 of 1999.

6 Repealed by the Housing Societies Repeal Act 2005.

7 Repealed by the Financial Institutions (Western Australia) Act 1992.

8 Repealed by the Friendly Societies (Western Australia) Act 1999.

9 Under the Financial Management (Transitional Provisions) Act 2006 s. 19 a reference in a written law or document or instrument to the Financial Administration and Audit Act 1985 may, where the context so requires, be read as if it had been amended to be a reference to the Financial Management Act 2006 or to the Auditor General Act 2006, or to both those Acts, as the case requires.

10 Repealed by the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cwlth) Act No. 146 of 1999.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

AFIC 3

AFIC (Western Australia) Code 3

AFIC (Western Australia) Regulations 3

AFIC Act 3

AFIC Code 3

appropriately qualified 26(2), 34(5)

APRA 3

APRA Act 3

APRA employee 3

ASIC 3

authorised APRA officer 3

building society 55(1)

Code 17(1), 50(1), 56(1)

Contingency Fund 44

contribution accounts 47(1)

credit union 47(1)

employee 3

employees 36

enforcement power 3

Financial Institutions (Western Australia) Code 3

Financial Institutions (Western Australia) Regulations 3

financial institutions agreement 16(1), 17(1)

Financial Institutions Code 3

financial institutions legislation 3

fiscal bodies legislation 3

foreign society 16(1), 17(1)

Friendly Societies (Western Australia) Code 3

Friendly Societies (Western Australia) Regulations 3

Friendly Societies Code 3

friendly societies legislation 17(1)

FS(TB) Act (Cwlth) 3

FSR Act (Cwlth) 3

participating State 16(1), 17(1)

previous governing Code 6(1)

relevant 17(1)

relevant Commonwealth body 3

relevant Financial Institutions Code 16(1)

relevant SSA 16(1), 17(1)

retained earnings 47(1)

society 16(1), 17(1), 18

SSA 3

Supervision Fund 44

transfer date 3

transferring financial institution of this jurisdiction 6(1)

WAFIA 3

withdrawable share 55(1)

Western Australia

Acts Amendment and Repeal (Financial Sector Reform) Act 1999

Reprinted under the Reprints Act 1984 as
at 13 April 2012

Western Australia

Acts Amendment and Repeal (Financial Sector Reform) Act 1999

Contents

Part 1 — Preliminary

Short title 3
Commencement 3
Terms used 3
Crown bound 6

Part 2 — Repeals and transitional provisions

Division 1 — Repeals

Various Acts repealed 7

Division 2 — Certain financial institutions to become companies

Transferring financial institutions to become companies 7

Division 3 — Transfers of business of ADIs and life insurance companies

Interpretation: FS(TB) Act (Cwlth) definitions apply 8
Authorised APRA officer 8
Voluntary transfers 8
Compulsory transfers 9
Certificates evidencing operation of this Division 11
Interests in land of transferring bodies 11
Certificates in relation to assets other than land 11
Documents purporting to be certificates 12
Relationship of Division with instruments and other laws 12

Division 4 — Provisions relating to uncompleted mergers and transfers of engagements

Mergers and transfers of engagements started under Financial Institutions (Western Australia) Code 13
Mergers and transfers of engagements started under Friendly Societies (Western Australia) Code 15

Division 5 — Provisions relating to societies whose registration has been cancelled

Terms used 18
Application of this Division 18
Society’s property vested in ASIC 19

Several core technical concepts structure the Act. These are defined or deployed in s 3 and in the transitional Divisions.

Transfer date: a Commonwealth concept, defined in s 3 as the date specified under s 3(16) of the Commonwealth FSR Act (Cwlth). Most transitional effects hinge on whether an event occurred before or after the transfer date.
Transferring financial institution of this jurisdiction and previous governing Code: used in s 6 to identify entities that, as at the transfer date, are to be taken to be registered as companies under the Corporations Law. Section 6(2) states the register name will be the same as the institution’s name immediately before the transfer date; s 6(4) clarifies the registration does not create a new legal entity.
Relevant Commonwealth bodies: APRA and ASIC are repeatedly substituted in place of former state supervisors. The Act confers functions on APRA and ASIC (ss 48-49) and allows APRA to authorise officers (s 8) who can issue certificates (s 11) that operate as evidence and effect transfers of assets and liabilities (ss 9-10, 12-13).
Successor in law: For voluntary and compulsory transfers conducted under the FS(TB) Act (Cwlth), the receiving body is taken to be the successor in law to the transferring body to the extent of the transfer (ss 9(3), 10(3)). This creates automatic transfer of assets and liabilities without conveyance (ss 9(4)(a)-(b), 10(4)(a)-(b)), and continuity of duties, immunities and rights (ss 9(4)(c), 10(4)(c)).
Certificates and evidentiary rules: Authorised APRA officers may certify assets or liabilities have become transferred assets/liabilities (s 11). A certificate is evidence of matters certified (s 11(2)), and documents purporting to be certificates are presumed to be such (s 14) unless the contrary is shown. For land, the transferee is to be treated as registered proprietor and the Registrar of Titles must amend registers on request with delivery of documents/certificates (s 12(1)-(2)).
Continuing Codes and enforcement: Specific parts of the AFIC Code, Financial Institutions Code and Friendly Societies Code are preserved for the purpose of actions or omissions before the transfer date (ss 51-53). Section 50 gives APRA and ASIC the same enforcement powers as AFIC or WAFIA had immediately before the transfer date for Code matters. Where necessary, the Act prescribes textual substitutions or omissions to make the Codes operate with “all necessary changes” in the post‑transfer context (see the detailed lists in ss 51-53(3)).
Statutory funds: The Supervision Fund and the Credit Unions Contingency Fund continue until the payments required are made, and WAFIA has specified distribution obligations (ss 44-47). The Act identifies retained earnings distributions and immediate payments to credit unions (s 47).
WAFIA and AFIC transitional roles: WAFIA continues for limited purposes including winding up (s 31), staff transfer and delegation arrangements (ss 34-39), and must dissolve within 12 months of the transfer date unless earlier dissolved by Minister (ss 31(2)(d), 35). AFIC retains specified powers and may delegate functions (ss 25-26). Transfer agreements may be entered into under the Commonwealth FSR/FS(TB) schedules to move assets and liabilities (ss 28, 37, 41).

These concepts structure practical effects: legal continuity for pre-transfer conduct, administrative tools for recognition of transferred property, and the substitution of Commonwealth regulators in enforcement and supervision roles for pre-transfer events.

The Act affects multiple categories of legal persons and public bodies. The principal categories are:

Transferring financial institutions: Defined via the Corporations Law Schedule 4 concept and used in s 6, these include building societies, credit unions, friendly societies and certain societies that were registered under the pre-transfer WA Codes or earlier state Acts. On the transfer date each such transferring institution is to be taken to be registered as a company under the Corporations Law (s 6(2)-(4)).
Members, depositors, shareholders and holders of withdrawable shares: The Act preserves member rights and converts certain withdrawable shares into deposits (s 55). Holders of withdrawable shares become deposit-holders in the same amount and retain any voting or other rights (s 55(2)-(4)). Dormant account rules are reversed in certain circumstances (s 54).
Receiving bodies under Commonwealth transfer machinery: Under voluntary and compulsory transfers the receiving body designated under the FS(TB) Act (Cwlth) is treated as successor in law (ss 9-10). Recipients therefore take on assets, liabilities, duties and immunities to the extent of the transfer (ss 9(3)-(4), 10(3)-(4)).
APRA and ASIC: These Commonwealth regulators acquire functions conferred by the Act (ss 48-49), receive information and records from AFIC/WAFIA staff (ss 27, 40) and may be recipients of assets or obligations under transfer agreements (ss 28, 41). APRA may authorise persons to exercise powers under Division 3 and issue certificates (s 8), and both regulators may continue or substitute criminal prosecutions begun by AFIC or WAFIA (ss 30, 43).
AFIC and WAFIA: AFIC continues to exercise specific powers under s 25 and may delegate (s 26). WAFIA remains in existence for transitional matters, winding up and staff transfer (ss 31, 35). WAFIA must prepare final reports and distribute statutory fund monies (ss 33, 46-47).
State entities: The State of Western Australia and the State of Queensland are treated as substitutional parties for certain proceedings involving WAFIA and AFIC respectively (ss 29(2)-(3), 42(2)-(3)). The Registrar of Titles is required to effect register changes when delivered appropriate certificates (s 12(2)). The Minister has regulation and delegation powers for WAFIA dissolution and appointments (ss 34(2), 35).
Employees and officeholders: WAFIA employees may become APRA employees under transfer agreements (ss 37-38). WAFIA must provide statements of accrued benefits before transfer (s 39). Directors of societies whose registrations are established as companies by ASIC become directors of the newly established company (s 23(6)).
Creditors, insureds and third‑party claimants: The Act preserves rights to recover under insurance where cover existed immediately before cancellation of registration (s 22). If a society’s registration was cancelled, ASIC may act as trustee, dispose of property and apply proceeds under deeming to Part 9.7 of the Corporations Law (s 20).
Parties to contracts: The Act has overriding effect “despite anything in a contract, deed, undertaking, agreement or other instrument” (s 15(1)), but it also says that nothing done under the Division places a person in breach of contract, confidence or makes them guilty of a civil wrong (s 15(2)). Parties must navigate that tension when transfers operate automatically.

Who pays and who benefits:

WAFIA is tasked with paying amounts from the Supervision Fund to APRA, ASIC and societies or their successor institutions (s 46). WAFIA must distribute retained earnings and payment to credit unions from the Contingency Fund (s 47(2)-(4)).
Stamp duty and state taxes are not chargeable under WA Acts in respect of anything effected by this Part, other than Division 3 (s 57), shifting an explicit fiscal cost away from the parties for most transfer activities.

These provisions change contractual counter‑parties’ risk allocation, shift supervisory costs and enforcement responsibilities to Commonwealth bodies, and impose administrative tasks on registries, WAFIA/AFIC, APRA/ASIC and transferring entities.

The Act creates and preserves specific duties, powers and rights that operate as transitional law for events around the transfer date. Key obligations and legal positions are set out below with section references.

Duties and powers of Commonwealth regulators

APRA and ASIC receive functions conferred by the Act (ss 48-49). They have power to act in Western Australia to perform those functions and to exercise enforcement powers under preserved Code provisions (s 50). The Act also empowers APRA to authorise persons, including board members or staff, to exercise functions in Division 3 (s 8).
Either relevant Commonwealth body is given the same enforcement powers regarding actions under the pre-transfer Codes as AFIC or WAFIA had immediately before the transfer date (s 50(2)). The Codes continue to apply with necessary textual changes for pre-transfer conduct (ss 51-53).

Certificates, succession and property rights

For voluntary and compulsory transfers under the Commonwealth FS(TB) Act, receiving bodies are taken to be successors in law to the transferring body to the extent of the transfer (ss 9(3), 10(3)). This leads to automatic vesting of assets and liabilities without transfer, conveyance or assignment (ss 9(4)(a)-(b), 10(4)(a)-(b)).
Authorised APRA officers may issue written certificates evidencing transferred assets and liabilities and such certificates are admissible as evidence (s 11(1)-(2)). Documents purporting to be such certificates are taken to be genuine unless proved otherwise (s 14).
For land interests registered under the Transfer of Land Act 1893, the receiving body is to be treated as the registered proprietor from the date the asset becomes a transferred asset; the Registrar of Titles is obliged to make necessary register amendments on request and on delivery of certificate of title and authorised APRA officer’s certificate (s 12(1)-(2)).
For other asset registers, lodging an authorised APRA officer’s certificate entitles the relevant registry to register or record the matter in the usual manner and to give effect to the certificate (s 13(1)-(3)).

Continuity of duties and immunities

To the extent of a transfer, duties, obligations, immunities, rights and privileges that applied to the transferring body apply to the receiving body (ss 9(4)(c), 10(4)(c)). Statements approved under Commonwealth transitional statements (section 20 or section 30 statements mentioned in ss 9(5) and 10(5)-(6)) are taken to have the specified effects.

Rights and duties relating to cancelled societies

Where a society’s registration has been cancelled before the transfer date, ASIC may continue to act as trustee for trust property previously vested in WAFIA, or apply to court to appoint a new trustee (s 20(1)). ASIC may also dispose of property not held on trust and apply proceeds to defray expenses and make payments as prescribed, and deal with remaining property under Part 9.7 of the Corporations Law (s 20(2)).
ASIC may establish a society as a company if satisfied cancellation should not have occurred, and a court may order ASIC to do so (s 23(1)-(3)). If so established, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution (s 23(5)).

Employee and board member rights and duties

WAFIA employees who become APRA employees under transfer agreements are governed by ss 37-39. WAFIA must provide statements of accrued benefits to employees before transfer (s 39). If a WAFIA employee becomes an APRA or Commonwealth public service employee, their WAFIA employment ends and they are not entitled to any payment merely because the employment ends (s 38(3)-(5)).
Directors of a society whose registration is established as a company by ASIC become directors of the company from the establishment time (s 23(6)).

Statutory funds, distributions and duties

WAFIA must pay amounts from the Supervision Fund to APRA and ASIC for certain liabilities and to building societies, credit unions and friendly societies for unexpended supervision levies (s 46). WAFIA must distribute retained earnings to credit unions’ contribution accounts and then pay those amounts immediately after distribution (s 47(2)-(4)).

Rights preserved for prosecutions and proceedings

Civil proceedings to which AFIC or WAFIA was a party immediately before the transfer date may continue with substitution of the State (Queensland for AFIC; Western Australia for WAFIA) (ss 29(2)-(3), 42(2)-(3)). Criminal prosecutions commenced by AFIC or WAFIA before the transfer date may be continued by APRA or ASIC (ss 30(2), 43(2)).

Other rights and obligations

Withdrawable shares in building societies are converted into deposit holdings on the transfer date; the deposit holder retains voting and other rights and withdrawable shares are deemed cancelled (s 55(2)-(4)).
Dormant accounts that had been reclassified under s 138A(4)(c) of the Financial Institutions Code and not lawfully paid out are taken immediately before the transfer date to have been transferred back to deposit accounts (s 54).
The Governor may make regulations to prescribe matters necessary to give effect to the Act (s 58).

These duties and rights change who must act (APRA/ASIC/WAFIA/AFIC/Registrar/ASIC), who receives property, who bears certain liabilities, and how enforcement and litigation continue. Many obligations track the transfer date and hinge on certificates, transfer agreements or Commonwealth orders.

This Act is primarily transitional and procedural; it does not create an extensive new penalty regime of its own. However it preserves and repurposes pre-transfer regulatory enforcement mechanisms and makes clear how enforcement and prosecutions continue.

Preservation and conferral of enforcement powers

Section 50 explicitly provides that either relevant Commonwealth body (APRA or ASIC) has the same enforcement powers relating to anything done or omitted under a Code before the transfer date as AFIC or WAFIA had immediately before that date (s 50(2)). The section further provides that, for the purposes of this preservation, the Codes apply with all necessary changes (s 50(3)). This means investigatory and prosecutorial powers that existed under the Codes for pre-transfer conduct are not lost by repeal of state Acts.

Continuation and substitution for proceedings

Civil proceedings commenced before the transfer date to which AFIC or WAFIA was a party are preserved, but the State is substituted for AFIC or WAFIA as party to the proceedings (ss 29(2)-(3), 42(2)-(3)). The Act preserves admissibility of evidence previously admissible for or against AFIC/WAFIA (ss 29(4), 42(4)).
Criminal proceedings under specified Code provisions that commenced before the transfer date but were not completed may be continued by APRA or ASIC in place of AFIC or WAFIA, with APRA/ASIC substituted for AFIC or WAFIA in the proceedings (ss 30(1)-(3), 43(1)-(3)). The functions necessary for these prosecutions are conferred on APRA and ASIC (ss 30(3), 43(3)).

Offences in preserved Code provisions

Sections 51(2), 52(2) and 53(2) expressly state that, despite the saving of particular Code provisions for pre-transfer conduct, an offending provision that creates an offence is not limited to antecedent conduct alone. That is, offence-creating provisions preserved in ss 51-53 can continue to apply beyond the transfer date in relation to relevant subject matter. The Act contains detailed mapping and textual substitutions (ss 51-53(3)) so that references to AFIC, SSA, Minister, executive director and employees in the Codes are read as references to APRA or ASIC as appropriate.

Evidentiary presumptions and administrative enforcement tools

Certificates of authorised APRA officers operate as evidence of transfers of assets and liabilities (s 11(1)-(2)). Documents purporting to be such certificates are to be taken to be genuine unless contrary is shown (s 14). For land and registered interests, the receiving body is treated as registered proprietor and the Registrar of Titles is obliged to make amendments upon receiving required documents (s 12(1)-(2)). These provisions facilitate administrative enforcement of transfer outcomes and affect evidentiary burdens in disputes.

Limits and exclusions

The Act does not itself create new criminal offences beyond those preserved from the Codes. It does not, for example, insert new pecuniary penalties or bespoke criminal sanctions into state law where none existed; rather it carries across enforcement powers and pre-existing offences. Section 15(2) expressly provides that nothing done under Division 3 places a receiving body, transferring body or another person in breach of contract, confidence, or other civil wrong, and does not release a surety from obligations, which limits the exposure of parties to civil penalty risk attributable purely to the operation of the Division.

Practical enforcement implications

For practitioners, the key enforcement points are: (a) prosecutions and investigations begun under state Codes can continue under APRA or ASIC (ss 30, 43); (b) preserved offence provisions may still apply where the substantive conduct falls within the preserved ambit (ss 51-53); and (c) evidentiary and registry mechanisms (ss 11-13, 14) lower transactional friction for regulators but place an onus on recipients to challenge certificate validity if they wish to dispute transfers.

In short, enforcement capacity is preserved and transferred to Commonwealth regulators; the Act supplies administrative, registry and evidentiary mechanisms to make that practically effective and to maintain continuity of criminal and civil enforcement in transitional matters.

The Act is expressly designed to operate with and to give effect to Commonwealth legislation and to adapt pre-existing state Codes. It references and depends on several other statutory sources; key interactions are set out below.

Interaction with Commonwealth legislation

The Act is linked to Commonwealth reform Acts. It relies on the Commonwealth FSR Act (Cwlth) and the FS(TB) Act (Cwlth) for the transfer date concept and the substantive transfers of business (s 3 definitions; ss 7-10). The Act adopts definitions from the FS(TB) Act in Division 3 (s 7) and contemplates transfer agreements under schedules of the FSR Act for shifting assets and liabilities of AFIC and WAFIA to APRA or ASIC (ss 28, 37, 41).

Interaction with the Corporations Law and Schedule 4 transfers

Section 6 provides that transferring financial institutions are taken to be registered as companies under Schedule 4 of the Corporations Law of Western Australia on the transfer date and that such registration does not create a new legal entity (s 6(2)-(4)). The Act therefore interacts directly with the Commonwealth/WA Corporations Law machinery for continuity of corporate personality and share/member rights.

Property law and registry interaction

For land, if a transferring body is registered as proprietor under the Transfer of Land Act 1893 immediately before the transferred asset becomes a transferred asset, the receiving body is to be taken as registered proprietor and the Registrar of Titles must make necessary register amendments on delivery of certificates (s 12(1)-(2)). For other asset registers, an authorised APRA officer’s certificate may be lodged with the registry and the registry may register or record the matter in the ordinary manner (s 13(1)-(3)).

Preemption and contracts

Section 15(1) gives the Division effect “despite anything in a contract, deed, undertaking, agreement or other instrument.” That is an overriding effect. Section 15(2) then tempers this by stating that nothing done under the Division places a receiving body, transferring body or other person in breach of contract or confidence or makes any of them guilty of a civil wrong, and does not release a surety from obligations. Practitioners must therefore read the Division as an overriding transfer mechanism that simultaneously seeks to avoid creating contractual breaches arising solely from operation of the Division.

Continuity of Codes and statutory text substitutions

The Act preserves particular provisions of the AFIC Code, Financial Institutions Code and Friendly Societies Code to apply after repeal for the purpose of anything done or omitted before the transfer date (ss 51-53). For that purpose the Act prescribes specific textual substitutions and omissions, for example substituting “either relevant Commonwealth body” for references to SSA and AFIC, and altering wording that refers to ministerial or executive offices (see the lists in ss 51-53(3)). These textual adjustments ensure preserved Code offences and powers remain operable in the new regulatory configuration.

Corporations Law deeming for societies with cancelled registration

If ASIC establishes a society as a company under s 23 because its registration should not have been cancelled, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution of the jurisdiction (s 23(5)). The Act also deems certain asset disposals and receipts to be governed by Part 9.7 of the Corporations Law (s 20(2)).

Statutory funds, accounting and credit unions

Sections 46-47 interact with Financial Institutions Code accounting rules (s 47 refers to s 99A of that Code) and require WAFIA to distribute retained earnings to credit unions’ contribution accounts and then to pay amounts to credit unions. Section 47(3) notes a specific inapplicability of s 99A(3) for this purpose.

Taxes and duties

Section 57 states that no stamp duty or other tax or duty is chargeable under any Act in respect of anything effected by or done under this Part, other than Division 3. That is an express fiscal interaction limiting WA taxes on most of the transfer operations handled by this Part.

Regulatory and administrative instruments

The Governor’s regulation power (s 58) allows the WA executive to prescribe matters necessary or convenient to give effect to the Act, and such regulations will interact with Commonwealth transfer agreements, Corporations Law mechanisms and registry procedures.

Reprints and omitted content

The notes indicate some provisions and amending provisions have been omitted under the Reprints Act 1984 (see the Notes and Compilation table), and Part 3 is omitted. Read together, the Act’s transitional provisions should be read with the Commonwealth transfer instruments and Schedule 4 of the Corporations Law to see full effect.

Overall, the Act is an exercise in statutory integration: it subordinates or coordinates state statutory elements to Commonwealth transfer machinery, adapts textual references to make preserved Codes operable in a new regulator landscape, and instructs registries, AFIC/WAFIA, ASIC and APRA how to carry out statutory steps in light of transferred responsibilities.

The Act’s compilation notes provide the authoritative amendment and commencement history contained in this reprint. Relevant entries from the Notes and Compilation table are set out below.

Original enactment and assent: The Acts Amendment and Repeal (Financial Sector Reform) Act 1999, No. 26 of 1999, received assent on 29 June 1999 (Compilation table). Section 2 and its Table specify a staggered commencement: Part 1 (preliminary) and certain Divisions commenced on Royal Assent (29 June 1999), while many Divisions commenced by proclamation on 1 July 1999 (see s 2(1) Table and Compilation table entries).
Commencement detail: The compilation table summarises commencement: Part 1, Part 2 Divisions 6 Subdivisions 1-3, Part 2 Division 7 Subdivisions 1-4, Part 2 Division 8, and ss 54, 55 and 58 commenced on 29 June 1999; Parts 2 Divisions 1-5, Div. 6 Subdiv. 4, Div. 7 Subdiv. 5, Div. 9, s 56, s 57 and Part 3 (other than s 68) commenced 1 July 1999; s 68 commenced 18 May 2001 (see the Compilation table).
Later amendment: The Statutes (Repeals and Minor Amendments) Act 2003, s 107(5) (No. 74 of 2003) made amendments that are included in the reprint; the compilation table records that Act and its assent date 15 December 2003, with commencement 15 December 2003.
Reprint: This reprint is compiled as at 13 April 2012 and includes amendments listed in the compilation table. The Notes make clear that certain amending provisions in this Act have been omitted under the Reprints Act 1984 s 7(4)(e) and that Section 98 (which repealed the Private Savings Bank Act 1924) has been omitted under s 7(4)(f). The reprint notes identify specific Commonwealth Acts that have since been renamed or repealed (for example, ASIC Act repealed by the Australian Securities and Investments Commission Act 2001 (Cwlth) Act No. 51 of 2001, and the FS(TB) Act is now called the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cwlth) Act No. 45 of 1999).
Omitted material and cross‑references: The reprint notes record that Part 3 has been omitted under the Reprints Act 1984 s 7(4)(e) and (f), which may affect those consulting the reprint versus original gazetted text. The Notes also explain that some references in the Act to other written laws (for example the Financial Administration and Audit Act 1985) may be read as references to substituted or successor federal/WA statutes where context requires (see the reprint Notes referencing the Financial Management (Transitional Provisions) Act 2006 s 19).
Interaction with Commonwealth reform: The Act was enacted to facilitate the Commonwealth’s transfer of regulatory responsibility for building societies, credit unions and friendly societies to the Commonwealth (Preamble). The changes made by the Act therefore track the Commonwealth reform program of 1999, and the Act was framed to operate with schedules and transfer mechanisms in Commonwealth statutes (see ss 7 and the definitions in s 3).

Practitioners should consult the consolidated reprint (as at 13 April 2012) for the version of the Act in force and note the compilation table when tracing commencement and amending history. Any later amendments after 2012 will not be recorded in this reprint and require checking current WA legislation databases.

The Act itself does not record judicial decisions. It does, however, preserve and reconfigure parties and rights for existing and future litigation; the following features are therefore legally significant for litigation practice, even though no court decisions are named in the text.

Substitution of parties and continuation of proceedings

For civil proceedings in which AFIC or WAFIA was a party immediately before the transfer date, the Act substitutes the State of Queensland for AFIC and the State of Western Australia for WAFIA as parties to those proceedings (ss 29(2)-(3), 42(2)-(3)). This is a direct statutory substitution: affected proceedings may continue but the named party on record is the relevant State. Evidence admissible for or against AFIC or WAFIA is admissible for or against the relevant State (ss 29(4), 42(4)). Section 29(5) and 42(5) clarify that the sections do not apply to criminal proceedings.
Criminal proceedings commenced under specified Code offences by AFIC or WAFIA that were not completed before the transfer date may continue to be prosecuted by either APRA or ASIC in place of AFIC or WAFIA, and those Commonwealth regulators may be substituted as parties (ss 30(1)-(3), 43(1)-(3)). The Act confers necessary prosecutorial functions on APRA and ASIC for that purpose (ss 30(3), 43(3)).

Preservation of rights and causes of action

Section 29(1) treats proceedings regardless of where they arose, whether or not they arose under the fiscal bodies legislation. It preserves rights of action and permits proceedings to be brought against the State for matters that, before transfer, could have been brought against AFIC (s 29(3)). For a practitioner, this statutory route preserves remedies even if the supervisory body itself has been dissolved or its statutory form changed.

Evidentiary and administrative consequences

Certificates of authorised APRA officers operate as evidence of transfer of assets and liabilities (s 11(2)), and documents purporting to be such certificates are taken to be genuine unless the contrary is established (s 14). In litigation about property or title, these statutory evidentiary presumptions shift litigation burdens: challenging parties must overturn the presumptive validity of such certificates.

Special litigation outcomes for cancelled societies

If ASIC establishes a society as a company under s 23 because its registration should not have been cancelled, the court may validate anything done between cancellation and establishment and make any other appropriate orders (s 23(3)). The Act therefore provides a remedial pathway where a cancelled society seeks retrospective restoration; such orders may have consequential litigation effects, e.g., on trusts, property ownership and director liabilities.

No cases named in the Act

The Act contains no references to judicial authority or precedent, and does not list case law. The only litigation history embedded in the statute is the structural preservation and substitution of parties, and the mechanisms it supplies for administrative evidence and registry amendments.

Practical litigation implications

Pleadings and party names must be updated to reflect statutory substitution (s 29(2) and s 42(2)). Where prosecutions were commenced by AFIC or WAFIA, counsel should expect APRA or ASIC to continue proceedings and to be substituted as prosecuting or claimant parties (ss 30, 43). Where property title is in dispute because of transfer, registries may have already acted on certificates under ss 11-13, and litigants will need to challenge the certificates’ validity rather than re-run title transfers as if the certificates had no force.

Because the Act is transitional, most litigation arising from it will centre on contested transfers, challenge to administrative certificates, disputes about the propriety of cancelled company restorations, and claims about distributions from statutory funds, all within the statutory frameworks preserved or established by the Act.

The Act contains multiple transitional mechanics that can produce surprising or counterintuitive results in practice. Below are concrete points to watch for, with section references and practical impact.

Conversion to company does not create a new entity (s 6(4))

Although transferring financial institutions are "taken" to become registered as companies under the Corporations Law on the transfer date (s 6(2)), s 6(4) expressly states that this registration does not create a new legal entity. Practically, liabilities and contractual relationships continue in the same legal person. Failure to appreciate this can lead to incorrect assumptions about novation, release of guarantees, or the need to re-execute contracts.

Certificates operate as prima facie evidence and are presumed genuine (ss 11(2), 14)

Certificates by authorised APRA officers that a particular asset or liability has become a transferred asset/liability are evidence of what they certify (s 11(2)), and documents purporting to be such certificates are to be taken as such unless the contrary is established (s 14). This shifts litigation burdens: to overturn a transfer recorded by certificate, a challenger must introduce evidence to displace the statutory presumption.

Transfer of land registration is statutory, not necessarily transactional (s 12)

For land registered under the Transfer of Land Act 1893, the receiving body is taken to be the registered proprietor from the relevant date (s 12(1)(a)), and the Registrar must amend the Register on request with delivery of certificate of title and authorised APRA officer’s certificate (s 12(2)). This statutory mechanism can result in registry changes even where standard conveyancing steps have not occurred.

Division 3 has an express carve‑out from the stamp duty exemption (s 57)

Section 57 provides no stamp duty or other tax is chargeable under any Act for anything done under this Part, other than Division 3. Division 3 concerns transfers of business of ADIs and life insurers. Parties involved in Division 3 transfers should not assume tax exemptions apply automatically.

Section 15 both overrides instruments and preserves non‑breach (s 15)

Subsection 15(1) says the Division has effect despite any contract or instrument; subsection 15(2) says nothing done under the Division places the receiving or transferring body in breach of contract or confidence, or otherwise guilty of a civil wrong. Practically, this means the operation of the Division effects transfers irrespective of contractual prohibitions, but the Act leaves existing third‑party liabilities and obligations intact (s 15(2)(a)-(b)). Legal advice is often needed to square the statutory transfer with the continued operation of covenants, confidentiality obligations and surety liabilities (s 15(2)(c)).

Withdrawable shares converted to deposits subject to WAFIA rules (s 55)

Withdrawable shares are converted to deposits and deemed cancelled (s 55(2)-(4)), but subsection 55(5) states the conversion is subject to standards or rules determined by WAFIA. If WAFIA sets conversion rules, those rules will affect entitlements. Practitioners should obtain WAFIA determinations or guidance.

WAFIA and AFIC remain in narrowed roles, with winding‑up deadlines (ss 31, 35)

WAFIA continues for limited purposes to give effect to transfers and must wind up “as soon as practicable but, in any case, within 12 months after the transfer date” (s 31(2)(d)). WAFIA is dissolved on the earlier of 12 months after the transfer date or a Minister-determined date published in the Gazette (s 35). Expect compressed timelines and urgency in WAFIA actions affecting distributions and staff matters.

Staff transfers may end prior employment without termination payments (s 38)

If a WAFIA employee becomes an APRA employee under a transfer agreement, their WAFIA employment immediately ends and the person is not entitled to receive any payment or other benefit merely because employment ends (s 38(4)-(5)). Employers and employees must attend to accrued entitlements and WAFIA’s obligation to provide statements of accrued benefits (s 39).

Litigation party substitution changes procedural posture (ss 29, 42)

Civil proceedings previously against AFIC/WAFIA become proceedings against the State. Parties should amend pleadings and consider limitation and discovery implications of the substitution.

Offence provisions preserved and potentially extend beyond pre-transfer acts (ss 51(2), 52(2), 53(2))

Although the preserved Code provisions are primarily saved to cover pre-transfer conduct, the Act clarifies that a provision that creates an offence is not limited to pre-transfer acts. That may surprise parties who believed repeal would prevent new prosecutions; the statutory design allows enforcement continuity.

ASIC’s power to establish societies as companies has retrospective effects (s 23)

If ASIC establishes a society as a company because its registration should not have been cancelled, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution (s 23(5)). Courts can validate interregnum actions (s 23(3)), with implications for property, trust and creditor positions.

Dormant accounts reversion may disturb reconciliations (s 54)

Amounts transferred to dormant accounts under s 138A(4)(c) of the Financial Institutions Code which have not been lawfully paid out are treated as having been transferred back to deposit accounts immediately before the transfer date (s 54(2)). Entities that contracted their accounting or reconciliations on the basis of dormancy classification must revisit the position.

These are not hypothetical hazards; they are specific statutory mechanisms that reallocate legal positions, evidentiary burdens and administrative responsibilities. Practitioners should trace each impacted instrument, register entry and employee record against the relevant sections noted above.

For regulated entities, advisers, registries and public bodies that must operationalise the Act, compliance is primarily procedural, documentary and timing-sensitive. Below is a practical compliance checklist structured by stakeholder and mapped to key sections.

For transferring financial institutions (building societies, credit unions, friendly societies)

Confirm transfer date: Identify the Commonwealth-specified transfer date (definition in s 3). Many rights and obligations operate “on the transfer date” (s 6; ss 9-10). Obtain written confirmation of the transfer date under the Commonwealth FSR or FS(TB) Acts.
Corporate registration under Corporations Law Schedule 4: Ensure administrative records reflect that the transferring institution is taken to be registered as a company under the Corporations Law on the transfer date (s 6(2)-(4)). Update internal governance and minute books to reflect the corporate registration status and confirm whether any external filings are required for continuity of registration.
Member and shareholder communications: Notify members, depositors and holders of withdrawable shares of the conversion mechanics. Withdrawable shares become deposits equal to the amount paid up and voting rights (if any) continue (s 55(2)-(4)). Advise members of any WAFIA rules on conversion (s 55(5)).
Dormant account reconciliation: Review accounts reclassified as dormant under s 138A of the Financial Institutions Code and apply s 54 if sums had been transferred to other accounts; reconcile with members’ deposit records.
Prepare for transfer of assets and liabilities: Where business transfers under FS(TB) Act (Cwlth) apply, prepare the documentation that may be required by APRA for certification (ss 9-11). Ensure asset registers, title deeds and instrument records are identified so that authorised APRA officer certificates can be obtained and lodged with registries (ss 11-13).

For registries, conveyancers and title offices

Accept and act on APRA certificates: The Registrar of Titles must make necessary register amendments on request upon delivery of any relevant certificate of title or instrument and authorised APRA officer’s certificate (s 12(2)). Registry procedures should be updated to accept APRA officer certificates and log such changes in a manner traceable for audit.
Other registers: Where registers exist for classes of assets other than land, be ready to register or record matters on production of an authorised APRA officer’s certificate (s 13(2)). Update internal processes and staff training to recognise the statutory basis for these registrations.

For APRA and authorised APRA officers

Issue clear certificates and maintain records: Exercise the power to authorise officers (s 8) and ensure certificates under s 11 identify assets and liabilities precisely. Maintain contemporaneous records to support the evidentiary weight of certificates (s 11(2), s 14). Implement processes to respond to registry requests under s 12(2) and s 13(2).
Enforcement and investigations: Coordinate with ASIC where Code provisions are preserved and enforcement powers are to be used (s 50). Ensure investigative and prosecutorial staff understand which Code provisions continue to apply and how textual substitutions in ss 51-53 operate.

For ASIC

Trust and property administration of cancelled societies: If a society’s registration was cancelled before the transfer date and property vested in WAFIA and then ASIC (s 20), assess whether to act as trustee, apply to court to appoint a new trustee, or dispose of property and apply proceeds under s 20(2). Maintain the mandatory records listed in s 20(5).
Company establishment: Where applications or court orders require ASIC to establish a society as a company (s 23), follow the procedural steps to notice publication and record transfer dates and director appointments (s 23(4)-(7)).

For WAFIA

Wind-up schedule and fund distributions: WAFIA must comply with s 31(2)(d) and dissolve as soon as practicable and in any case within 12 months after the transfer date (s 35). Distribute the Supervision Fund and Contingency Fund per ss 46-47: pay liabilities to APRA/ASIC, reimburse levy payers for unexpended supervision levies, and distribute retained earnings to credit unions’ contribution accounts and then pay credit unions (s 47(2)-(4)). Document transfers and retain accounts and vouchers per s 20(5) where ASIC holds property.
Staff transfer documentation: Enter transfer agreements under Schedule 8 of the FSR Act for staff transfers (s 37) and issue statements of accrued benefits to affected employees before transfer (s 39).

For entities with litigation exposure

Amend pleadings and notify courts: Where proceedings involve AFIC or WAFIA as parties, identify whether substitution occurs per ss 29 and 42 and amend pleadings accordingly. Where criminal prosecutions are ongoing, expect APRA or ASIC to be prosecuting agencies (ss 30, 43).

For contract counterparties and sureties

Review instruments in light of s 15: Understand that the Division operates despite contractual provisions purporting to restrict assignment or disclosure, but the Act indicates nothing done under the Division places a party in breach of contract or confidence or releases a surety entirely (s 15(1)-(2)). Obtain legal advice before asserting contractual breaches solely on the basis of operation of the Division.

Practical administrative action points

Create a transfer‑date master file: list all instruments, registries, titles, employee records, trust deeds and securities affected as at the transfer date. Map each entry to the statutory mechanism (s 11-13, s 20, s 46-47).
Preserve documentary evidence: retain original certificates, transfer agreements, ASIC/Registrar communications and WAFIA/AFIC minutes, and ensure audit logs for any registry amendments.
Notify stakeholders and regulators: ensure members, employees, creditors and counterparties are informed of conversions, registry changes and the identity of receiving bodies. For creditors and insured parties, note recovery rights under s 22 and the practical steps to recover from society insurers.
Tax and stamp duty advice: rely on s 57 for most stamp duty exemptions under WA Acts but obtain specialist advice for Division 3 transfers which are excluded from the exemption.
Regulatory coordination: APRA and ASIC should maintain inter‑agency memoranda of understanding addressing who leads enforcement or prosecution in cases arising from pre‑transfer conduct.

By following the statutory prescriptions (ss 6, 9-13, 20-24, 31-41, 44-47, 48-53) and documenting each step, institutions and advisers will convert the statutory mechanics into operational compliance. Where uncertainty remains (for example over WAFIA rules under s 55(5) or the precise terms of transfer agreements under schedules of the Commonwealth FSR Act), seek and document regulatory guidance and legal advice before acting.

Deep Dive

What it does

Current sections