Australian Prudential Regulation Authority instrument fixing charges No. 1 of 2021

The instrument relies on a small set of legal and administrative concepts stated in the text. The primary legal concept is delegated instrument-making power under the Australian Prudential Regulation Authority Act 1998: the delegate (Stephen Brian Matthews) exercises authority under paragraph 51(1)(a) and (b) to fix charges. The text does not reproduce paragraph 51(1)(a) and (b), it simply records that the instrument is made under that paragraph. The instrument also invokes statutory commencement mechanics: the instrument “commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003,” so the commencement trigger is registration rather than a nominated calendar date.

In interpretive terms, the instrument defines ADI as an abbreviation,and specifies that the term has the meaning given in section 5 of the Banking Act 1959,therefore the Schedule’s reference to ADIs should be read against the Banking Act definition. APRA is likewise defined as the Australian Prudential Regulation Authority. The Schedule provides the operational mechanics for the charges: four columns headed “Nature of services and applications for which the charge is imposed,” “Amount of the charge,” “Person required to pay the charge,” and “When the charge is to be paid.”

Substantively, the Schedule encapsulates the concept of charging for prudential-regulation activity under a models‑based capital adequacy framework. The listed “nature of services” is assessment of applications and ongoing supervision “under the models-based approach.” The Schedule therefore links the fee to a specific supervisory modality, rather than to a generic supervisory function. Charges are expressed as fixed amounts per named entity (for 2020-21), inclusive of GST, and non‑refundable. The Schedule also makes explicit that the invoice for the charge may be issued “at any time after the date of this instrument,” which embeds an administrative discretion over timing of invoicing.

Finally, the instrument exhibits a concentrated beneficiary/payer design: the Schedule lists particular corporates by name. That is a structural choice in the instrument’s mechanics: charges are not expressed on an indexed or formula basis (for example, percentage of assets or risk-weighted assets), nor are they applied by class; they are fixed sums attached to individually named ADIs. The instrument thus operationalises cost imposition as a per-firm fixed charge for the services described.

The instrument imposes legal payment obligations on the specific entities named in the Schedule. The Schedule identifies six larger ADIs,Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; Macquarie Bank Limited; ING Bank (Australia) Limited,as liable to pay the $290,400 charge (inclusive of GST) and identifies Bendigo and Adelaide Bank Limited as liable to pay a $45,100 charge (inclusive of GST). The table header labels Column 3 “Person required to pay the charge,” and the named companies are listed under that column for the respective amounts. The Interpretation clause confirms that “ADI” has the meaning given in s 5 of the Banking Act 1959, which places these named entities into the statutory category referenced by the Schedule.

Entities not listed in the Schedule are not identified as payors in this instrument and, on the face of the instrument, are not subject to the fixed sums specified here. The instrument does not state that the listed amounts are a cap, a typical charge, or that further invoices will be issued to other ADIs; it simply fixes the specified charges “in respect of the specified services provided by APRA,” as applied to the named persons. Because the Schedule names corporate entities individually, any corporate reorganisation, merger, transfer of business, change of name, or subsidiary structure could raise practical questions about application of the charge; the instrument itself does not address successor liability, assignment, or the position of related entities.

The payment obligation falls on the corporate legal entity named in the Schedule, not on branches or affiliates that are not named. The Schedule’s specificity therefore allocates the financial burden narrowly and concentrates it on a handful of ADIs. The instrument also affects APRA’s internal accounting: APRA may issue the invoice at any time after the instrument’s date and expects payment within 14 days of invoice receipt, giving APRA a short timing window to recover the amounts fixed.

Finally, because the Schedule describes the services as assessment of applications and ongoing supervision under the models‑based approach, any ADI that has applied for or is subject to models-based capital adequacy oversight (and that is named) will be the practical subject of APRA activity for which this charge is imposed. The instrument does not purport to alter prudential obligations, but it imposes a funding obligation on listed firms tied to APRA’s supervisory activity in a specific prudential domain.

Duties

• Pay the fixed charge. The primary legal duty created by the instrument is an obligation on the named persons to pay the amounts specified in the Schedule. For the six larger named ADIs the amount is $290,400 (inclusive of GST); for Bendigo and Adelaide Bank Limited the amount is $45,100 (inclusive of GST). Both amounts are stated in the Schedule as “non‑refundable.” The Schedule sets the time for payment at “14 days after receipt of APRA’s invoice for the charge,” and it adds that APRA may issue the invoice “at any time after the date of this instrument.”

• Timing compliance. The payor must be prepared to discharge payment within a 14‑day period from invoice receipt. The instrument gives APRA discretion on the invoicing date, which can be any time after the instrument’s date, so the payor must monitor for and respond to APRA’s invoice.

Rights

• The instrument itself does not create an express right of review, refund, or appeal within its text. It records the charge as non‑refundable and fixes the amounts. Any rights to challenge the charge, seek remission, or assert payment defences would have to be sourced outside the instrument (for example, in the APRA Act, other legislation, or administrative law remedies). The instrument’s text does not state any internal APRA process for disputing or negotiating the amount or timing.

• The Schedule’s specificity provides payors with clarity on the quantum and payee identity. That clarity is a practical right: named entities know the exact amount for this charge as at this instrument’s effective date. The charges are designated inclusive of GST, so payors have certainty on the GST treatment as expressed in the Schedule.

Other operational duties

• The named entities must ensure corporate treasury and accounts payable processes can meet the 14‑day payment window once an invoice is issued. The instrument’s statement that the invoice may be issued at any time after the date of the instrument places a duty on the named entities to remain alert to APRA’s invoice.

• The instrument imposes no procedural duties on APRA beyond its power to issue an invoice. APRA’s discretion on invoicing timing is explicit; the instrument does not impose a maximum delay for issuing an invoice.

Constructive limits

• The instrument’s powers are exercised “under paragraph 51(1)(a) and (b) of the APRA Act 1998” by a delegate. That record of delegate action places a legal ceiling on the instrument’s exercise: the delegate must have had the statutory authority conferred by those paragraphs to make binding charges. The instrument does not reproduce those paragraphs, but the citation indicates the statutory source for the power exercised.

In short, the instrument creates a concrete, non‑refundable payment duty for the named payors, specifies the amounts and timing, and leaves no in‑instrument mechanism for refund or formal dispute. Rights to challenge or review must therefore be sought outside the text of this instrument.

The instrument itself fixes charges and sets payment timing, but it does not set out specific penalties, enforcement processes, or interest provisions for late payment within its text. The Schedule provides the quantum and the payment deadline,“14 days after receipt of APRA’s invoice for the charge”,and states the amounts are non‑refundable, but it does not address consequences of non‑payment, interest on overdue amounts, recovery mechanisms, or administrative sanctions.

Because the instrument does not specify enforcement measures, enforcement and penalties (if any) must be sourced from APRA’s broader legislative powers under the APRA Act or other relevant legislation, contractual arrangements, or administrative practice. The instrument records that the delegate acted under paragraph 51(1)(a) and (b) of the APRA Act 1998, which is the statutory source for the charging power; any enforcement for non‑payment would therefore likely be a matter of general APRA powers, Treasury directions, or debt recovery under general law rather than provisions contained in this instrument. The instrument does not claim or create additional statutory penalties.

The Schedule’s silence on enforcement mechanisms creates legal uncertainty on practical remedies available to APRA or defences available to payors. A named payor that fails to pay within 14 days after invoice receipt would be in breach of the payment obligation fixed by the instrument; however, absent instrument text specifying interest or recovery procedures, APRA would be required to rely on other statutory or common law routes to recover unpaid charges. The instrument’s non‑refund statement is clear in precluding voluntary refunds by APRA, but it does not preclude later administrative remission or recovery action instituted under other law.

Practitioners advising payors should therefore not treat the instrument as exhaustive on enforcement. If APRA were to pursue unpaid amounts, the legal basis and the remedies would need to be identified from the APRA Act, the Commonwealth’s debt‑recovery processes, and applicable common law. The instrument itself does not provide those enforcement details.

The instrument is relational: it is explicitly made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998 and invokes other statutory regimes by reference. The Interpretation clause directs readers to the Banking Act 1959 for the meaning of “ADI” (it states “ADI is short for authorised deposit‑taking institution and has the meaning given in section 5 of the Banking Act 1959”), thereby tying the instrument’s scope to the Banking Act’s definitional regime. The instrument’s commencement mechanism is linked to the Legislation Act 2003: it “commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003.”

Because the instrument fixes charges for services described as “assessment of applications and the ongoing supervision of ADIs under the models‑based approach,” it interacts functionally with the regulatory space in which APRA operates,prudential standards and supervision under the APRA Act and related prudential standards. The instrument does not alter prudential standards or models‑based requirements; it simply charges a fixed sum for APRA’s activity in that domain. Where the APRA Act or prudential standards create obligations on ADIs (for example, reporting or application lodgement), those obligations remain in force and the instrument imposes a supplementary payment obligation for the relevant supervisory activity.

GST treatment is addressed practically rather than substantively: the Schedule states each amount is “inclusive of GST.” That statement links the charge to the taxation regime and signals how payors should account for GST in handling the invoice; however, the instrument does not analyse or alter GST law. Any GST obligations, input tax credits, or GST reporting implications for the payor will be governed by the A New Tax System (Goods and Services Tax) Act 1999 and related tax law, not by this instrument.

The instrument does not state how it operates in relation to corporate reorganisations, successor companies, or insolvency. Because the Schedule names specific corporate entities, application across corporate restructures will require reference to company law (Corporations Act 2001), the Banking Act’s definition mechanics, and APRA’s administrative practice. Any enforcement in case of non‑payment will engage general debt recovery law and the APRA Act’s broader powers; those interactions are not set out in the instrument itself.

Finally, the instrument operates within the administrative law framework applicable to Commonwealth instruments. That means general legal doctrines,jurisdictional error, procedural fairness in administrative decision‑making, and judicial review of executive action,remain available as they apply to the delegate’s exercise of powers under the APRA Act. The instrument does not limit those avenues; it does not, for example, purport to oust judicial review. Any challenge to the validity of the instrument would need to engage the APRA Act and the rules for delegated instruments, but such procedures are outside the text of the instrument.

The instrument text provided records a single instrument dated 17 June 2021 and does not include any amendment provisions, schedules of repeal, or savings clauses. It states the delegate fixed the charges and that the instrument commences on registration under the Legislation Act 2003. The Schedule appended to this instrument lists the chargeable services, amounts and payors relevent to the models‑based approach for the financial year 2020-21.

There is no internal evidence in the supplied instrument of amendments, prior instruments superseded, or subsequent variations. The text does not include an express provision that it replaces a previous instrument or sets a period of operation beyond commencement on registration. Because the instrument is tied to a financial year (indicated by the instrument’s title referencing “Models‑based capital adequacy requirements for ADIs for the financial year 2020-21”), the implicit temporal scope is the 2020-21 financial year, but the instrument itself fixes the figures without an express expiry clause in the body of the text supplied.

Absent any amendment record in the instrument text, anyone needing an authoritative amendment history must consult the Federal Register of Legislation for the instrument’s entry. The instrument expressly commences on registration under the Legislation Act 2003, which means that Register entry will show the registration date and any later amendments or repeals, if they exist. The instrument does not itself set out a mechanism for automatic indexation, annual recalculation, or future review dates.

Practitioners should therefore treat the instrument as a discrete, dated measure fixing charges for the 2020-21 period and should verify on the Federal Register whether subsequent instruments replaced, varied, or revoked it. The instrument’s text does not include retrospective amendment, transitional rules, or savings material, so any amendment history will be recorded externally, not in the body of the instrument supplied here.

The instrument contains no reference to litigation, and the text supplied does not record any legal proceedings, challenges, or judicial determinations concerning it. The Schedule fixes sums to named ADIs and states the amounts are non‑refundable, but it does not set out appeal rights, internal review procedures, or statutory dispute resolution mechanisms. Consequently, the instrument itself provides no litigation history.

Because the instrument is a single‑purpose charging instrument made under the APRA Act, any litigation arising from it would be external to the text and would have to be located in public records (for example, Federal Court judgments, administrative law decisions, or reports) or via the Federal Register’s annotations. The instrument makes no factual or legal claims that would generate a litigation record in its text.

Practitioners or researchers interested in whether any of the named ADIs have challenged the instrument should consult case law databases, the Federal Register of Legislation (for notation of any revocation or amendment), and APRA’s administrative records. Absent such external research, the instrument itself gives no basis to report litigation history; it remains silent on the issue.

The instrument is compact, but it contains several practical features and potential pitfalls that warrant attention.

• Named entities only. The Schedule lists specific corporate entities as “Person required to pay the charge.” The instrument does not apply the charge by formula to a class of ADIs; it names individual payors. If corporate changes occur (mergers, demergers, name changes), the instrument does not address successor liability, assignment, or the effect of corporate restructures. Practitioners should not assume the Schedule’s liability automatically extends to successors or affiliates absent separate legal steps or further instruments.

• Non‑refundable statement. Both amounts are stated as “non‑refundable.” That bars an in‑instrument right to refund; however, it does not prevent APRA from later agreeing to remit or rebate a fee or from the payor seeking administrative or judicial relief. The Schedule nonetheless makes a clear policy position that the charges are not intended to be repaid once invoiced and paid.

• Invoice timing discretion. The Schedule permits APRA to issue the invoice “at any time after the date of this instrument.” That language gives APRA considerable administrative flexibility on when the 14‑day payment clock starts. Payors need to monitor for invoice issue and be prepared for potentially immediate payment demands after registration.

• Short payment window. Payment is due “14 days after receipt of APRA’s invoice.” For large, multinational banks with centralised treasury processes this may be manageable, but for entities with slower procurement cycles or offshore cash-management arrangements it is a short period for processing a $290,400 invoice.

• GST treatment stated but not explained. Each amount is “inclusive of GST.” The instrument does not explain whether the supply is a taxable supply for GST law purposes, or whether the named payors may claim input tax credits. Payors must treat the invoices in accordance with GST legislation and consider the tax treatment in their accounts.

• No enforcement regime set out. The Schedule does not specify interest on overdue amounts, late payment penalties, or recovery procedures. That absence may create uncertainty on APRA’s enforcement options; recovery will therefore depend on the APRA Act and general law.

• Tied to “models‑based approach.” The Schedule ties the charge to “Assessment of applications and the ongoing supervision of ADIs under the models‑based approach.” If an ADI ceases to be subject to models‑based oversight, the instrument does not clarify whether the charge remains payable. The practical effect is that the charge is linked to a supervisory modality, which may change over time; the instrument does not create a mechanism to prorate, refund, or reallocate fees if supervisory status changes.

• Concentrated quantum. The large charge for six named ADIs is identical ($290,400), whereas Bendigo and Adelaide Bank Limited is charged substantially less ($45,100). The fixed per‑entity design does not scale with balance sheet size or risk profile as set out in this instrument; the Schedule does not provide a rationale for the differential, nor does it provide a rule for future scaling.

• Commencement by registration. The instrument commences on registration under the Legislation Act 2003 rather than on a specified date. This introduces an element of administrative timing: parties should check the Federal Register to determine the operative commencement date and to verify the invoice issue timing.

These points are drawn from the instrument’s text. Each creates practical risks or administrative obligations that the named payors must manage because the instrument itself does not create mitigating provisions.

Compliance with this instrument is primarily a discrete transactional task: confirm whether your entity is named in the Schedule; if so, be prepared to pay the specified amount on receipt of APRA’s invoice within 14 days; treat the amount as GST inclusive; and note the non‑refundable statement.

Step‑by‑step checklist

1. Confirm identity. Check the Schedule in the instrument to confirm whether your corporate legal entity is named exactly as listed. The instrument fixes the charge against the person named in Column 3; only those named entities are specified as payors in this instrument.

2. Monitor the Federal Register. The instrument “commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003,” and the Schedule permits APRA to issue an invoice “at any time after the date of this instrument.” Verify the registration date and watch for APRA’s invoice from that date onward.

3. Accounts payable readiness. Once an invoice is received from APRA, payment must be made within 14 days. Ensure accounts payable has the authority and liquidity to make a $290,400 or $45,100 payment (inclusive of GST) within that window. For international treasury arrangements, confirm transfer times and any intercompany approval procedures to avoid late payment.

4. GST accounting. The Schedule states amounts are “inclusive of GST.” Treat the invoice consistent with GST law and your internal tax procedures. Determine whether input tax credits are available and document tax treatment in your accounting records. The instrument does not itself provide GST advice.

5. Document retention. Keep a copy of the instrument, the invoice, payment receipt, and any correspondence with APRA. Because the instrument states charges are non‑refundable, retain evidence of payment should any dispute arise.

6. Commercial and legal checks. If you are not the named entity but believe your entity should be (for example, due to corporate group structure), engage legal counsel to assess whether the Schedule’s naming captures your entity or whether APRA needs to be approached. The instrument does not address successor or affiliate liability, so proactive clarification with APRA is prudent.

7. Dispute and remediation planning. The instrument contains no in‑instrument dispute mechanism. If the entity considers that the charge was improperly imposed or calculated, identify external remedies: administrative review processes under the APRA Act (if applicable), or judicial review avenues. Seek legal advice early because the instrument sets a short payment timeline and lacks procedural safeguards in the text.

8. Internal budgeting and disclosure. For the financial year 2020-21, record the fixed charge in internal budgets and statutory accounts as appropriate. Disclose the fee treatment in financial statements and regulatory returns in accordance with accounting standards and APRA reporting requirements, if relevant.

9. Engage APRA if necessary. If there is uncertainty about whether the services charged were received, whether the amount should have been apportioned differently, or how corporate reorganisations affect liability, open a dialogue with APRA promptly and document the correspondence.

10. Verify no further obligations. The instrument fixes the amounts specified; it does not state whether other instruments impose additional charges. Check APRA’s other instruments and schedules for other fee obligations in the same period.

Following these steps aligns operational practice with the instrument’s clear requirements: pay the named amount, within 14 days of invoice, GST inclusive, and note that the Schedule calls the amount non‑refundable. Where legal or factual errors are suspected, seek external advice promptly because the instrument provides no in‑instrument dispute mechanism and payment deadlines are short.