Australian Prudential Regulation Authority instrument fixing charges No. 1 of 2023

This instrument rests on a small set of concrete legal and programmatic concepts, each defined or invoked in the text.

• Delegated fixing of charges: The instrument is made under paragraph 51(1)(a) and (b) of the APRA Act. The text records that the delegate is exercising the power to "FIX the charges specified in the attached Schedule of charges in respect of the specified services provided by APRA." The instrument therefore operates by way of a statutory fee-fixing delegated instrument rather than by negotiated agreement with the payers.

• Limited scope of services: The Schedule describes the subject-matter of the charge as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." That description defines the covered APRA activity at a high level; the instrument does not include a further breakdown of tasks, hours, or unit prices. The label "models-based approach" is used in the title and the schedule but is not further defined within the instrument.

• Named payers and tiered charging: Instead of applying a formula to all ADIs generically, the Schedule specifies particular named ADIs and assigns each to a charge amount. There are three distinct monetary amounts:

  • $520,135 (inclusive of GST), non-refundable, payable by Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation.
  • $416,108 (inclusive of GST), non-refundable, payable by Macquarie Bank Limited; ING Bank (Australia) Limited.
  • $59,444 (inclusive of GST), non-refundable, payable by Bendigo and Adelaide Bank Limited. The division into tiers and the explicit naming of payers are core structural features of the instrument.

• Payment timing and invoice discretion: The instrument provides a short, concrete payment regime: APRA issues an invoice, payment by the named ADI is due within 14 days of receipt, and APRA may issue the invoice at any time after the date of the instrument. The instrument does not otherwise lock in a billing schedule.

• Non-refundability: Each listed charge is expressly described as non-refundable in the Schedule.

• Commencement by registration: The instrument takes effect on registration on the Federal Register of Legislation under the Legislation Act 2003, not on the signature date alone. The instrument is dated 21 June 2023, and commences from the registration date.

These concepts combine to produce a fee-based supervisory allocation that is specific in its monetary amounts and recipients, minimal in procedural detail, and forward-looking for the financial year 2022-23. The instrument sets out who pays, how much, when, and the broad service description; it does not set out service-level standards, refund or dispute procedures, or enforcement remedies in the text attached.

The instrument directly affects the ADIs named in the Schedule, and indirectly affects their internal budgetary and compliance functions. The named payers are:

• Australia and New Zealand Banking Group Limited (ANZ)
• Commonwealth Bank of Australia (CBA)
• National Australia Bank Limited (NAB)
• Westpac Banking Corporation
• Macquarie Bank Limited
• ING Bank (Australia) Limited
• Bendigo and Adelaide Bank Limited

The instrument imposes a statutory obligation on these named entities to pay the fixed charge specified opposite their name in the Schedule. The text identifies "Person required to pay the charge" in Column 3 and lists those entities. The obligation is narrow in scope: only those specific persons named in the Schedule are declared liable for the charges fixed in this instrument. The instrument does not purport to impose the charge on ADIs generally, nor does it list other ADIs.

Secondary effects arise for organisational units that support these ADIs. The named charges are described as relating to assessment and ongoing supervision under APRA’s models-based approach; as such, internal compliance, prudential capital modelling groups, finance departments and treasury functions within the named ADIs will be the internal units needing to manage the payment and any related record-keeping or budgeting impacts. The inclusion of GST in the amounts means finance and tax teams will need to treat the amounts as GST-inclusive for accounting purposes; the instrument itself states each amount is "inclusive of GST."

Other affected parties are not named but may be implicated in practice. For example:

• Customers and counterparties: the instrument does not say who ultimately bears the cost; the monetary burden legally sits with the named ADIs. Commercially, the ADIs will decide whether to absorb the cost, reallocate budgets, or seek cost recovery through pricing, but the instrument does not mandate or restrict any such commercial responses.
• APRA: the instrument confers on APRA (via its delegate) the power to collect the specified revenue from named ADIs for the described supervisory work. APRA obtains the right to issue invoices and to require payment within a short period.

Finally, the instrument may affect ADIs’ legal and advisory costs because its Schedule provides no procedural detail about dispute, remission or refund; interested ADIs (if they wish to contest or seek clarification) will need to engage their own legal or regulatory advisors to manage any uncertainty that arises, although the instrument itself contains no notice of rights of review or appeal.

The instrument creates narrow, concrete duties and limited corollary rights.

Duties:

• Duty to pay the fixed charge: Each named ADI is required to pay the charge amount listed opposite its name in the Schedule. The instrument puts that obligation in the Schedule under "Person required to pay the charge" and "Amount of the charge." This is a direct statutory duty created by the instrument.
• Duty to pay within 14 days of invoice: Payment is due "14 days after receipt of APRA’s invoice for the charge." APRA also retains the discretion to issue the invoice "at any time after the date of this instrument." Thus, the payers must be prepared to meet a short 14-day payment window once invoiced.
• Duty to accept non-refundability: Each amount is specified as non-refundable in the Schedule; the instrument makes this a stated condition ("This charge is non-refundable"). That duty imposes the risk of unrecoverable outlay on the payer irrespective of subsequent events covered by the instrument.

Rights (express or reasonably inferable from the instrument text):

• Right to be invoiced prior to payment: Payment is expressly linked to APRA’s invoice; the named ADIs are not required to pay before receipt of an invoice. The instrument places the timing of the payment trigger with APRA (invoice issuance) rather than imposing immediate payment on signature.
• Right to certainty of amount: The instrument fixes the quantum of each charge in the Schedule; payers have a fixed, publicly stated amount to budget for the financial year 2022-23, subject to APRA’s invoice timing.
• Implied right to administrative clarity: While not expressly stated, the clarity of the Schedule as to payer and amount gives the named ADIs a clear legal obligation to pay the amount listed. The instrument does not, however, create explicit procedural rights such as review, remission, or refund.

Not stated in the instrument (gaps that create implied limitations or uncertainties):

• No procedural dispute mechanism: The instrument does not set out any process for challenging the invoice, the amount, or the underlying justification for the charge.
• No specified enforcement or penalty clauses: The instrument does not identify statutory enforcement mechanisms or penalties for non-payment within this text; it simply sets the due date.
• No service-level commitments: The instrument describes the nature of services in general terms but does not define deliverables, timing of supervisory activities, or benchmarks that would allow a payer to test performance against the charge.

Operationally, these duties and rights place short, non-refundable cash obligations on the named ADIs with very limited procedural protections or further specification in the instrument itself. APRA retains the practical timing control (issue invoice at any time after the date of the instrument) and the instrument fixes a non-refundable amount for the described supervisory work.

The instrument itself does not set out explicit penalties, interest provisions, or an enforcement mechanism for non-payment of the fixed charges. The Schedule prescribes the amount payable, the payees, and that payment must be made "14 days after receipt of APRA’s invoice for the charge," and notes the invoice "may be issued at any time after the date of this instrument." Beyond establishing these payment terms and the non-refundable character of the charges, the instrument contains no text specifying consequences for failure to pay within 14 days, such as interest on overdue amounts, fines, suspension of services, or referral to debt recovery.

This omission has practical implications:

• Unspecified recovery route: Because the instrument does not itself prescribe the manner in which APRA will obtain unpaid amounts, the enforcement path is left unspecified in the instrument’s text. APRA may have other statutory powers under the APRA Act or other legislation to recover debts or to exercise prudential powers in relation to ADIs, but those are not invoked or described in this instrument. The instrument does not expressly link non-payment to any supervisory sanctions or to the withdrawal or suspension of services.
• Operational enforcement likely through other mechanisms: The instrument gives APRA the right to issue an invoice; failure to pay an invoice typically allows an agency to pursue the debt by ordinary administrative or legal means. The text does not detail whether APRA intends to pursue enforcement via internal debt collection processes, agreements, or statutory recovery powers, so the route and timing remain discretionary and external to this instrument.
• No late payment terms: There is no provision for interest on late payments, additional fees, or escalation within the instrument. The absence of such terms increases uncertainty for both APRA and for the payer about the consequences of missing the 14-day window.

Because the instrument is a fee-fixing instrument, enforcement of the obligation to pay is a material risk for named ADIs. The instrument’s silence about enforcement mechanisms means that parties must look to other statutory provisions, standard government debt-collection practices, or contractual arrangements (none of which are specified here) to understand the exact consequences of non-payment.

Finally, the instrument’s statement that the charges are "non-refundable" is an affirmative condition on APRA’s treatment of payments once made, but it does not describe or delimit the agency's power to return funds in exceptional circumstances. The instrument thus sets a clear, unilateral financial obligation (amount and timing) while leaving enforcement procedures and remedial options unspecified within its terms.

The instrument explicitly situates itself within statutory frameworks by reference to the APRA Act, the Banking Act (by definition), and the Legislation Act for commencement.

• APRA Act delegation (paragraph 51(1)(a) and (b)): The instrument is made by an APRA delegate under specified paragraphs of the APRA Act. The instrument records that the delegate is exercising power under paragraph 51(1)(a) and (b) to fix charges. The legal validity and effect of the instrument will therefore be governed by the scope of the delegate’s authority in the APRA Act. Any reader seeking to test the instrument’s validity would need to consider those statutory delegation provisions; the instrument itself does not reproduce their text, but it expressly relies on them.

• Banking Act definition linkage (section 5): The instrument includes an "Interpretation" block stating that "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959." This ties the operative identity of payers to the statutory definition in the Banking Act. The instrument therefore interacts with the Banking Act for definitional clarity: an entity is an "ADI" for the purposes of the instrument only if it meets the Banking Act’s statutory definition.

• Commencement under the Legislation Act 2003: The instrument states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That places the timing of the instrument’s operation within the administrative framework established by the Legislation Act: registration is the trigger for commencement.

• GST inclusion: Each amount in the Schedule is stated to be "inclusive of GST." While the instrument itself does not refer to the GST law or taxation rules, its explicit inclusion of GST in the amounts means the charge figures are expressed gross of GST liabilities; any interaction with taxation law for recovery or input tax credit purposes would be external to this instrument but practically relevant to the payer’s accounting.

What the instrument does not do, and related interaction gaps:

• It does not purport to amend, vary, or displace any substantive provisions of the APRA Act or the Banking Act; rather, it operates as a subordinate instrument that imposes a fiscal obligation under delegated authority. The instrument does not set out how it relates to APRA’s other fees or whether these amounts are to be offset or aggregated with other charges under other instruments.
• It does not specify appeal, review or administrative remedies within the instrument text. Any rights of review or remedies would need to be located in other statutory schemes (for example, administrative law processes or statutory review rights under the APRA Act or other legislation), but the instrument itself is silent.
• Enforcement and recovery are also not specified here, so their interaction with external debt-recovery or public finance law is not articulated in the instrument.

In sum, the instrument is expressly anchored to the APRA Act for authority, to the Banking Act for the defined class of entities, and to the Legislation Act for commencement, and it explicitly states GST-inclusive amounts. All other legal interactions (remedies for non-payment, dispute resolution, accounting/tax consequences, or links to other APRA charges) are left to external instruments, statutory provisions, or administrative practice not reproduced in this instrument.

The instrument is styled as "Australian Prudential Regulation Authority instrument fixing charges No. 1 of 2023." The text as provided contains the original instrument information: it is dated 21 June 2023 and is signed by Stephen Brian Matthews, Chief Operating Officer, Enterprise Services, as a delegate of APRA. The instrument states it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003."

Within the text provided there is no express record of any previous versions, revocations, or amendments to this instrument. The instrument does not include an explicit "amendment" or "repeal" clause, nor does it include any notation of prior instruments it replaces or varies. The Schedule itself appears to be the operative content and is attached in full.

Points observable from the text regarding amendment and temporal operation:

• Numbering and dating: being No. 1 of 2023 identifies it as the first fees-fixing instrument of APRA in 2023 of this type, but no later amending instrument is recorded in the document supplied.
• Commencement clause: the instrument commences on registration under the Legislation Act 2003. Where an instrument relies on registration for commencement, the effective date is the registration date rather than signature. Any amendment or revocation would typically follow the same formalities (delegated power, signature by appropriate delegate, registration), but the instrument makes no provision for transitional arrangements or for amendment processes in-situ.
• No savings or transitional clauses: the instrument does not include text to save earlier payments or to provide for pro rata calculations if, for example, the instrument were amended mid-year. It simply fixes amounts for the financial year 2022-23 as per the title and the Schedule.

Because no amendment entries, revocations, or later versions appear in the provided text, the only recorded procedural events in the instrument are: signature by the APRA delegate on 21 June 2023 and commencement on registration. To establish whether this instrument was later amended, replaced, or revoked after registration would require checking the Federal Register of Legislation or APRA’s public register, but no such subsequent instruments are recorded within the page provided.

The instrument as provided contains no mention of any litigation. The text does not reference any court or tribunal decisions, does not list challenges to the instrument, and does not disclose settled disputes or adversarial proceedings related to these charges. The Schedule lists only the charges and the named payers; it does not contain any record of contested decisions or outcomes.

Because the instrument is a short delegated statutory instrument fixing charges, any litigation related to it would typically arise (if at all) from one of the following types of claims, none of which are recorded in the instrument itself:

• Procedural challenge to the delegate’s authority under paragraph 51(1)(a) and (b) of the APRA Act. The instrument records the source of authority but does not include any narrative about the delegation or its legal limits.
• Judicial review challenges based on how the charge was fixed, for example alleging errors of law, irrationality, or procedural unfairness. The instrument contains no statement of an internal review process and does not record any such proceedings.
• Disputes over invoice validity, calculation or scope of the services described. The instrument contains a high-level description of services but no contractual terms that would be the typical subject of litigation.

The absence of litigation history in the instrument is itself a data point: the instrument as published is presented without annotation of disputes or judicial consideration. If users require confirmation whether any litigation has been commenced or concluded regarding this instrument, they would need to consult external court or tribunal records, which are not present in the instrument text provided.

In the narrow textual sense, therefore, the instrument records no litigation history; it is a fee-fixing instrument with no accompanying judicial annotations or recorded challenges in the provided document.

Several features of this instrument create operational, timing, and legal surprises that recipients and advisers should note. These are drawn strictly from the text.

1. Named, non-exhaustive liability: The Schedule names specific ADIs as the persons required to pay. If an ADI is not named, this instrument does not, on its face, impose a charge on that entity. Conversely, the named ADIs have a concrete obligation to pay exactly the amounts listed. Pay attention to the exact corporate name used in Column 3,if an entity's legal name differs from the listed name, there could be an executional error but the instrument as drafted lists only the specific names.

2. Amounts are GST-inclusive and non‑refundable: Each amount is explicitly "inclusive of GST" and "non-refundable." The "inclusive of GST" language fixes the gross amounts to be paid. The "non-refundable" label is absolute in the Schedule: APRA's position in the instrument is that once paid, the charge will not be returned. This removes the possibility of an automatic refund if the service is not delivered or if circumstances change, at least insofar as the instrument makes the non-return clear.

3. Invoice timing creates uncertainty: APRA may issue the invoice "at any time after the date of this instrument." Because the instrument commences on registration, APRA can, in practice, issue an invoice immediately upon registration or at any later date. The payer has only 14 days from receipt of the invoice to pay. That combination is operationally significant: APRA controls the invoicing trigger and the payer has a short statutory payment window after receipt.

4. No explicit remedy or penalty clause for non-payment set out here: The instrument does not specify interest, penalties, or enforcement procedures for late or non-payment. The absence of these terms in the instrument means that the consequences of missing the 14-day deadline are not set out in this text and would need to be located elsewhere.

5. Broad but undefined service description: The Schedule defines the payable service as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The instrument supplies no further breakdown by activity, hours, or cost drivers. This limited description may make it difficult for payers to reconcile the charge against specific deliverables or to understand what precisely has been billed.

6. Financial year labelling versus signature date: The instrument is for the "financial year 2022-23" and is dated 21 June 2023. Because commencement depends on registration, and APRA may invoice "at any time after the date of this instrument," payers might be invoiced for 2022-23 supervisory work late in that financial year or shortly after its end. The timing may affect accounting treatment, budgets and cash-flow planning.

7. No stated appeal or review path: The instrument does not identify any statutory or administrative right to seek remission, negotiation, or review of the charge. If a named ADI believes the quantum or basis of the charge is incorrect, the instrument does not itself provide a structured remedy.

8. Concentrated payer list: The amounts are concentrated on a small list of major ADIs, especially the four banks in the highest band. This concentration means a small group bear the fixed charges; the instrument does not explain selection criteria.

9. Delegation formality and implication: The instrument is made by a delegate of APRA under specified paragraphs of the APRA Act. Users should not assume the delegate’s authority is unlimited; however, the instrument gives no further detail on the limits of the delegation or whether it has been exercised in line with internal APRA delegation instruments.

10. Lack of integration with other APRA fees: The instrument does not state whether these charges are additional to or inclusive of other supervisory or registration fees APRA might collect. That can create double-counting or budgeting issues unless the ADI reconciles this instrument against other APRA fee instruments.

These "gotchas" are all derived from text in the instrument and the Schedule: named payers, GST-inclusive, non-refundable amounts, invoice timing and the short payment window, limited service description, and lack of stated consequences for non-payment or mechanisms for review.

Compliance with this instrument requires attention to a small set of precise operational tasks that flow directly from the instrument’s terms.

1. Confirm legal identity and payer status: Each named ADI should verify whether the Schedule lists its exact legal entity name. The instrument creates a duty for the specific legal persons listed in Column 3. If an entity believes it is incorrectly named or omitted, it will need to engage APRA promptly to seek clarification because the instrument itself fixes the named payers.

2. Monitor registration and invoice issuance: The instrument commences on registration on the Federal Register of Legislation under the Legislation Act 2003. ADIs should track the date of registration and be prepared for APRA to issue an invoice "at any time after the date of this instrument." Practical compliance therefore requires finance or treasury units to be ready for invoice receipt from APRA at short notice following registration.

3. Prepare to meet the 14‑day payment window: Payment is due "14 days after receipt of APRA’s invoice for the charge." ADIs should ensure that internal accounts payable, cash management and authorisation processes can turn around payment within 14 days of invoice receipt. This may require pre-authorising payment protocols or ensuring signatories are available to meet the 14-day timing.

4. Budget for GST-inclusive fixed amounts: The Schedule lists each amount as "inclusive of GST." Finance teams should budget for the gross figure stated, not an amount net of GST, and determine whether any GST input tax credits or other tax accounting treatments apply under the payer’s GST arrangements. The instrument itself does not provide tax guidance, but the stated gross amounts are the compliance target.

5. Treat payments as non‑refundable: Each listed amount is stated to be non-refundable. Once paid, APRA has specified that the charge will not be returned. Practically, that means ADIs should ensure they are satisfied that the charge is properly payable (for example, the right legal entity is invoiced) before remitting funds, because the instrument gives no internal refund guarantee.

6. Reconcile with internal legal and procurement controls: The amounts are material in size for many institutions. ADIs should ensure payments are processed in compliance with internal procurement, governance and internal audit controls, including appropriate approvals and documentary support that tie the invoice to the instrument and to the Schedule.

7. Maintain contemporaneous records: Document receipt of invoice, date of payment, the instrument and the Schedule, and internal approvals. Because the instrument does not set out dispute or review mechanisms, a clear internal record will assist any future engagement with APRA on the charge.

8. If there is a dispute, engage APRA promptly: The instrument does not set out an appeal or review path. If an ADI believes the charge is incorrectly levied or the amount is incorrect, the practical route is prompt engagement with APRA’s finance or regulatory contacts to seek clarification, because the payment window is short and the instrument itself provides no procedural pause.

9. Coordinate with treasury for cash-flow impact: The amounts are different across the named ADIs. Treasury should factor the precise amount and GST-inclusive character into short-term cash forecasts so that a payment due within 14 days of invoice is available when APRA issues the invoice.

10. Cross-check other APRA instruments: Although this instrument is self-contained, ADIs should check whether APRA has issued other fee instruments for the same year that may interact with or duplicate supervisory fee obligations. The Schedule does not state whether these charges are additive to other APRA charges.

Following these steps will operationalise the duties the instrument creates: verification of legal identity against the Schedule, readiness for invoice receipt and quick payment, and careful record-keeping to evidence compliance with the 14-day payment obligation and the non-refundable status of the amounts paid.