Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2016

The instrument rests on a few discrete statutory and administrative concepts that determine its legal and practical profile.

Statutory authority. The delegate of APRA fixes the charges under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. The instrument itself cites those paragraphs as the power relied on, and the signature block records that the delegate acted under them. The instrument therefore identifies a delegated executive action to set price terms for APRA services by reference to the APRA Act.

Definition of the class of entities. The instrument uses the term "ADI" throughout and defines it by reference to section 5 of the Banking Act 1959. The instrument’s Interpretation clause states "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959." That means the conceptual reach of the instrument ties to the statutory definition in the Banking Act, as opposed to any broader or narrower administrative definition supplied elsewhere in the document.

Nature of the services charged. Column 1 of the Schedule identifies the charged service as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." That is the operative description of what activity APRA is recovering costs for: initial assessment of applications to use a models-based approach, and ongoing supervision of ADIs once the models-based approach is in place.

Charge amounts and GST. Column 2 gives fixed fee amounts and states they are inclusive of GST. Both amounts carry the text "(inclusive of GST)." Thus, the publicised dollar figures are gross amounts inclusive of any goods and services tax, rather than net amounts to which GST would be added later.

Refund and approval conditions. The Schedule specifies that the charges are non-refundable. For the lower charge tier ($188,692), the Schedule adds that "This charge is non-refundable and is payable whether or not the ADI eventually obtains approval for the use of a models-based approach." That establishes a sunk-cost rule in respect of that charge, and a stronger statement for that subset of recipients that the fee applies regardless of the outcome of APRA’s substantive assessment.

Timing of invoicing and payment. The Schedule permits APRA to issue the invoice "at any time after the date of this instrument" and sets a 14-day payment window after receipt of invoice. The instrument itself commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003. Those timing provisions govern when the liability becomes due and relate the instrument’s operational start date to legislative registration.

Named payers. The Schedule names specific ADIs in Column 3. The instrument therefore operates as fixed charges directed to particular legal entities identified by name in the Schedule, rather than as a general tariff applying to an open class of ADIs.

Delegation. The signing officer, Steve Matthews, is described as "a delegate of APRA" and signs under the stated statutory paragraphs. The instrument records that the fixing of charges is an action taken by APRA through an authorised delegate.

Taken together, these concepts make this instrument a limited, entity-specific fee-fixing instrument tied to APRA’s models-based assessment and supervision activities for the 2015-16 financial year, specifying amounts, payers, GST treatment, refund position, invoicing discretion, and payment terms, all under the authority cited.

The instrument names the specific legal persons required to pay the charges, and thereby identifies the immediate economic burden of the charges. Column 3 of the Schedule lists the payers by name. For the $377,385 charge the named payers are: Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; and Macquarie Bank Limited. For the $188,692 charge the named payers are: ING Bank (Australia) Limited; Bendigo and Adelaide Bank Limited; and Suncorp-Metway Limited.

Because the Schedule names payers individually, only those legal entities listed are required by the instrument to pay the stated amounts. The instrument does not purport to impose the same charges on all ADIs generally; instead it fixes charges for a small, named set of ADIs. The Interpretation clause defines the shorthand ADI by reference to s 5 of the Banking Act 1959, but the Schedule then applies the fixed dollar amounts to an explicit list of entities. Therefore, an entity that is an ADI under the Banking Act but which is not named in the Schedule is not listed as a payer in this instrument.

The Schedule’s text that associates the charge to "Assessment of applications and the ongoing supervision of ADIs under the models-based approach" indicates the functional connection to certain regulatory activity. Practically, the named payers are those subject to APRA’s assessment of models-based approaches and to ongoing APRA supervision under that approach for the 2015-16 financial year, as indicated by the instrument’s title. The instrument thus targets a concentrated set of large ADIs and a smaller set of other ADIs, allocating discrete fixed charges to these named institutions.

Because the instrument fixes the charge amounts and explicitly states whether they are refundable or payable regardless of approval, the named ADIs bear financial risk for participating in the assessment process. The instrument also authorises APRA to invoice "at any time after the date of this instrument", which places the administrative timing discretion with APRA and imposes on the named payers a cashflow and payment obligation once an invoice is issued. The payment window, 14 days after receipt of APRA’s invoice, applies to each named payer.

No other categories of persons, such as third parties, contractors, or subsidiaries, are named in the Schedule as liable for payment. The instrument therefore creates narrowly specified payor obligations tied to named ADIs for the stated services and amounts.

The instrument establishes a small set of concrete duties and limited rights, each defined within its text.

APRA’s duty to fix charges. The delegate of APRA exercises authority under paragraph 51(1)(a) and (b) of the APRA Act to "FIX the charges specified in the attached Schedule of charges in respect of the specified services provided by APRA." This records APRA’s administrative duty to set the fee terms. The instrument is the operative act fulfilling that duty, fixing the amounts, payers, and payment terms.

APRA’s invoicing discretion. The Schedule explicitly permits APRA to issue the invoice "at any time after the date of this instrument." That provision vests timing discretion in APRA about when to notify the named payers of the amount owing. APRA thereby retains the operational right to determine the invoice date, subject only to the instrument’s constraint that payment is due 14 days after receipt of APRA’s invoice.

Payor duties. Each person named in Column 3 is required to pay the specific amount applicable to them, inclusive of GST, within 14 days of receipt of APRA’s invoice. For the entities listed against the $188,692 entry, that charge is categorised as "non-refundable and is payable whether or not the ADI eventually obtains approval for the use of a models-based approach." The Schedule thus creates a mandatory payment duty that in at least one instance survives the substantive outcome of APRA’s assessment.

GST inclusion. The Schedule states each amount is "inclusive of GST." That places on the payor the obligation to discharge the whole stated gross amount, rather than to treat the stated amount as a net figure to which GST is to be added. The instrument does not allocate further tax accounting responsibilities between APRA and payors; it simply states that the charge is inclusive of GST.

Refund rights. The Schedule expresses the refund position: "This charge is non-refundable" for the higher amount, and for the lower amount adds the explicit "payable whether or not the ADI eventually obtains approval." Those provisions crystallise the absence of a refund entitlement in both cases, and in the second case a stronger clause that explicitly disconnects the charge from the outcome of the substantive approval process.

Commencement right and effect. The instrument commences upon registration on the Federal Register of Legislation under the Legislation Act 2003. That sets the operative date from which APRA may issue invoices and from which the payment timeline can be triggered.

Rights not expressed in the instrument. The instrument does not articulate rights of appeal, review, deferral, or waiver with respect to the charges. It does not specify a mechanism for dispute resolution about the charge amount, nor does it set out conditions for remission or late payment. The instrument likewise does not set an internal APRA process for reconsideration of the charge. Those matters are therefore not created or limited by the instrument as written.

Signature by delegated decision-maker. The instrument records it is signed by "Steve Matthews, a delegate of APRA", which documents APRA’s procedural compliance with delegated authority. The signature both evidences the exercise of APRA’s power and records who executed the instrument on APRA’s behalf.

In short, the core duties are APRA’s duty to fix and invoice, and each named ADI’s duty to pay the stated, GST-inclusive amount within 14 days of invoice receipt; refund rights are expressly denied, and APRA retains invoice-timing discretion.

The instrument sets out payment obligations and timings, but it contains no express penalty or enforcement clauses. The Schedule specifies when payment is due, "14 days after receipt of APRA’s invoice for the charge," and the instrument authorises APRA to issue the invoice "at any time after the date of this instrument." Those provisions make clear the timing and non-refundable nature of the charges, but the instrument does not itself define consequences for late payment, non-payment, or disputed invoices.

Specifically, the instrument does not include provisions that prescribe interest on overdue amounts, penalties, suspension of regulatory services for non-payment, referral to debt collection, or criminal sanctions. Those enforcement mechanisms are not present in the text supplied. Because the instrument is narrowly confined to fixing charges and specifying payers, amounts, refund, GST inclusion, and the payment timeline, any remedy or enforcement relating to unpaid charges would have to be founded on other statutory or administrative provisions outside this instrument, if such provisions exist. The instrument itself does not point to, incorporate, or rely on any particular enforcement mechanism.

The absence of enforcement language in the instrument also means there is no procedural text within this instrument for contesting the invoice, any administrative remission process, or any express stay of payment obligations pending dispute. The instrument’s silence on those matters leaves the immediate legal consequence as a fixed liability for the named payers subject to payment within the 14-day window after invoice receipt, with no instrument-level mitigation.

Because this instrument does not specify enforcement, users should note that the presence or absence of penalties is consequentially determined by separate statutory powers, APRA policy, contractual arrangements, or other administrative practice not recorded in this instrument. The instrument does not create or limit such external enforcement powers; it merely records the fixed charge and the timing for invoice and payment. Any enforcement action APRA might take for non-payment would therefore depend on APRA’s other statutory powers or administrative procedures, none of which are stated or referenced in this instrument.

The instrument explicitly references and thereby interacts with several named statutory sources and concepts, while remaining silent on others.

APRA Act authority. The delegate fixes the charges under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. That citation situates the instrument within the APRA Act’s framework for fee-fixing authority. The instrument’s effect is therefore an exercise of power available under the APRA Act; the instrument itself does not create that power, it records its exercise.

Banking Act definitional link. The Interpretation clause defines ADI by reference to section 5 of the Banking Act 1959: "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959." That links the instrument’s categories to the statutory construct of ADI in the Banking Act, making the instrument’s substantive scope depend on that Act’s definitional reach.

Commencement under the Legislation Act 2003. The instrument states it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That ties the instrument’s operative start point to the registration mechanism established by the Legislation Act 2003. The instrument therefore interacts procedurally with the Legislation Act’s registration processes for delegated instruments.

GST. The Schedule states each charge is "inclusive of GST." The instrument therefore records the tax treatment of the fixed dollar amount as gross of any goods and services tax. While the instrument does not name the specific taxation statute, its statement that the amounts are inclusive of GST directly affects how the payor will calculate the payment and how APRA and the payor will understand the tax content of the charge.

No cross-reference to enforcement/collection law. The instrument does not cross-reference provisions in other legislation that might authorise collection or enforcement of unpaid charges, nor does it incorporate other Acts’ recovery procedures. It also does not reference any review, merits appeal, or judicial-review pathway. Consequently, any legal interaction with enforcement, review, or collection mechanisms will depend on other laws and administrative procedures outside this instrument’s text.

No incorporation of external regulatory standards. The instrument fixes amounts for "Assessment of applications and the ongoing supervision of ADIs under the models-based approach", but it does not itself define models-based standards, supervisory criteria, or capital adequacy metrics. The instrument therefore charges for an activity that is conducted under other regulatory frameworks, while not incorporating those frameworks into its terms.

In sum, the instrument interacts expressly with the APRA Act for authority, the Banking Act for entity definition, and the Legislation Act 2003 for commencement. It records GST-inclusive pricing, but it does not specify enforcement or dispute-resolution mechanisms and does not import regulatory standards; those are matters external to the instrument.

The instrument as provided contains its execution date, commencement rule, and Schedule, but it does not record any amendments, variations, or revocations within its text. The instrument is dated 16 June 2016 and is signed by Steve Matthews as a delegate of APRA. It opens by stating the delegate "FIX the charges specified in the attached Schedule of charges," and specifies that "This instrument commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003."

No amending provisions or later dates appear in the text supplied. The Schedule is presented as an integral part of the instrument, showing the specific charge amounts, payers, refund position, GST inclusion, and payment timing. There is no express clause within this instrument that amends a prior instrument, or that expressly states that this instrument replaces or supersedes another instrument. Similarly, there is no transitional provision in the supplied text that would carry over or modify liabilities arising under prior instruments.

Because the instrument itself does not record any later modifications or footnote any superseding instruments, the amendment history within the four corners of this document is limited to its original making and commencement. Any subsequent amendments, revocations, or replacement instruments would have to be identified from external legislative registers or APRA records; they are not present in this instrument’s text.

The instrument’s reliance on statutory powers under paragraph 51(1)(a) and (b) of the APRA Act implies that APRA could, using the same statutory mechanism, fix different charges in future instruments. However, this particular instrument is a standalone instrument fixing charges for the 2015-16 financial year and contains no internal amendment trace or later-date notation. The instrument expressly allows APRA to invoice at any time after its date, but that operational discretion is not an amendment mechanism.

In short, the instrument records one discrete execution dated 16 June 2016, with no amendments recorded inside the document supplied.

The instrument contains no reference to any litigation, legal proceedings, or judicial decisions. No cases, suits, or proceedings are named in the text. The instrument therefore provides no internal record of any litigation arising from its making, operation, or enforcement.

Because the instrument is limited to fixing charges, and because it does not set out enforcement mechanisms, it does not itself provide a locus for litigation histories to be recited within its text. If disputes about the charges, invoice timing, refund claims, or payment obligations were litigated, those matters would be recorded outside this instrument in court files or tribunal records; none of those are mentioned in the instrument supplied.

Therefore, as far as the instrument itself records, there is no litigation history attached or referenced. Any enquiry into litigation arising from these charges would require external searches of judicial or administrative records, which are not supplied in or referenced by this document.

Several operational and legal features in the instrument pose practical traps that the instrument itself reveals. These are concrete mechanics to note rather than legal opinions.

Invoice timing uncertainty. The Schedule authorises APRA to issue the invoice "at any time after the date of this instrument." That provision gives APRA unilateral discretion as to when the formal billing notice will be dispatched. For a named payer, this creates uncertainty about when the 14-day payment window will be triggered. Payors cannot assume the invoice will be issued immediately upon the instrument’s commencement date.

Short payment window. Once APRA issues an invoice, payment is due 14 days after receipt of that invoice. That is a relatively tight cashflow requirement to meet a large, fixed charge, particularly for the higher-tier amount of $377,385. The combined effect of uncertain invoice timing and a short payment window requires payors to maintain liquidity or prepare to meet an immediate obligation.

Non-refundability and outcome-independence. The Schedule marks both charges as non-refundable. The $188,692 charge expressly adds that it is payable "whether or not the ADI eventually obtains approval for the use of a models-based approach." For recipients of that charge, the payment obligation is decoupled from the substantive outcome of APRA’s assessment. That converts part of the application cost into a sunk cost irrespective of success, which payors must budget for even if they ultimately do not obtain approval.

Concentration of burden. The instrument names a small set of large ADIs for the higher charge, and three other ADIs for the lower charge. The concentration of charges on named entities means the financial burden is not spread across the broader ADI population; rather, it is focused on the listed institutions. The instrument therefore imposes a concentrated, discrete cost on those named entities.

GST-inclusive amounts. The Schedule states each amount is inclusive of GST. That means the gross payment figure must be paid in full, and the stated price is not subject to later GST addition. Payors must therefore ensure accounting treatment recognises that the invoice will state a GST-inclusive total.

No instrument-level enforcement clauses. The instrument does not contain provisions addressing late payment, interest, enforcement action, or dispute-resolution. That absence means named payers do not have instrument-level guidance about remedies available to them if the invoice is challenged or if APRA seeks recovery. The instrument’s silence may complicate dispute handling because payors must look outside the instrument to determine enforcement risk and remedies.

Specificity of named payers. The Schedule’s Column 3 names specific legal entities. That is operationally important because the legal obligation to pay attaches to those named entities. For organisations that are part of broader groups, the instrument does not specify whether subsidiaries, group holding companies, or affiliates bear any liability unless they are expressly named.

Temporal scope versus title. The instrument title ties the charges to "Models-based capital adequacy requirements for ADIs for the financial year 2015-16." The instrument itself commences on registration. The Schedule allows issuance of invoices at any time after the instrument date. Those textual features could create a mismatch between the financial-year label and the practical timing of invoicing, which may affect accounting, budgeting, and compliance cycles for the named payers.

No indication of refund triggers or remediation. Although the instrument labels the fees as non-refundable, it does not otherwise specify whether APRA may, at its discretion, remit or vary charges post-invoice. The absence of such a clause means payors should not assume leniency unless APRA’s separate policies or decisions provide for it.

Each of these points is stated in and follows directly from the instrument’s express terms; practitioners should treat them as concrete operational risks embedded in the instrument rather than speculative consequences.

Compliance under this instrument is tightly procedural and centred on payment within the specified timeframe to APRA once invoiced. The instrument sets out the following discrete steps and considerations, all supported by the text.

1. Verify whether your organisation is a named payer. Consult Column 3 of the Schedule. The instrument lists the exact legal names required to pay the two fixed amounts. If your entity appears in that list, the instrument imposes an express duty to pay the specified amount for the stated service.

2. Budget for the stated gross amount inclusive of GST. Column 2 lists $377,385 and $188,692, each annotated "(inclusive of GST)". The payor must therefore be prepared to discharge the gross charge as invoiced, rather than expecting GST to be added or subtracted later.

3. Anticipate invoice timing. APRA may issue its invoice "at any time after the date of this instrument." Because APRA retains discretion over invoice timing, establish an internal process to monitor for APRA invoices immediately upon the instrument’s commencement and to mobilise payment authority quickly.

4. Meet the 14-day payment window. The Schedule sets payment due "14 days after receipt of APRA’s invoice for the charge." Ensure that internal accounts-payable procedures can accept and clear the invoice within a fortnight of receipt, and that appropriate approval delegations are in place to authorise large payments without delay.

5. Recognise non-refundable status. The Schedule states the charges are non-refundable, and the $188,692 charge is explicitly "payable whether or not the ADI eventually obtains approval for the use of a models-based approach." Do not assume a refund if approval is denied; the instrument itself disclaims refund rights.

6. Confirm entity identity and invoice recipient. Because Column 3 names specific legal persons, confirm the invoiced recipient matches the entity named in the Schedule. If APRA invoices an entity that is not named, preserve records and query APRA. Conversely, if your organisation is named, ensure the invoice is routed internally to the unit handling regulatory payments.

7. Retain documentary evidence. Keep copies of the instrument, Schedule, any APRA invoice, and payment records. Because the instrument does not set out enforcement or dispute procedures, having a complete administrative record will be essential if any question arises about receipt, timing, or payment.

8. Check internal accounting for GST-inclusive treatment. Account for the payment as the gross amount inclusive of GST consistent with the Schedule’s wording. Ensure tax reporting and internal accounting recognise that the charge includes GST, so as to avoid double-counting or incorrect GST claims.

9. Consider cashflow and contingency planning. Given the short 14-day payment window and the possibility that APRA may issue the invoice at any time after the instrument date, maintain liquidity or a ready authorisation to meet the charge promptly.

10. If uncertain, seek clarification from APRA. The instrument records that the delegate fixed the charge, and APRA administratively will be the issuer of the invoice. For any operational queries about invoice timing, payor details, or the method of payment, the pragmatic compliance step is to seek clarification from APRA administrative channels, noting the instrument’s text sets the obligations but does not specify invoicing mechanics beyond timing.

The instrument does not provide dispute-resolution procedures, enforcement details, or remission policies. Accordingly, compliance focuses on confirming payor status, preparing to pay the GST-inclusive fixed amount within 14 days of invoice, and documenting all interactions with APRA in case of subsequent queries.