Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2019

The instrument rests on a few concrete legal and administrative concepts stated in its text. First, it is a fee-fixing instrument: APRA, by a delegate, "FIX[es] the charges specified in the attached Schedule of charges in respect of the specified services provided by APRA." That is the instrument’s operative function, a delegation of APRA’s charging power under the Australian Prudential Regulation Authority Act 1998, used to set monetary charges for discrete services.

Second, the services charged are narrowly described in the Schedule as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The instrument therefore ties charges to a specific regulatory activity, namely APRA’s assessment and supervisory work connected to ADIs that adopt a models-based method for capital adequacy. The instrument does not elaborate the technical content of the models-based approach, it simply uses that label as the service descriptor.

Third, the Schedule operates as a table that maps services to price, payer and payment terms. The table contains four columns: Column 1, the nature of services and applications for which the charge is imposed; Column 2, the amount of the charge; Column 3, the person required to pay the charge; and Column 4, when the charge is to be paid. For the institutions listed, Column 2 specifies monetary amounts which are expressly "inclusive of GST," and identifies each charge as "non-refundable."

Fourth, the instrument contains an Interpretation provision defining "ADI" by reference to section 5 of the Banking Act 1959. That cross-reference determines who is covered by the term ADI in the Schedule. APRA is likewise defined simply as the Australian Prudential Regulation Authority.

Fifth, the legal basis and commencement mechanics are spelled out. The instrument records that it is made under paragraph 51(1)(a) and (b) of the APRA Act, and that it commences upon registration on the Federal Register of Legislation under the Legislation Act 2003. The signature block records that the delegate is an Executive General Manager of APRA and dates the instrument 11 June 2019.

Finally, the instrument’s design includes timing discretion for APRA: it may issue the invoice "at any time after the date of this instrument," while the payer’s obligation to remit is triggered 14 days after receipt of that invoice. The Schedule also isolates the charge’s refund position by stating the charge is non-refundable.

These concepts together produce a simple legal map: APRA, via delegated power under the APRA Act, fixes particular, GST-inclusive, non-refundable charges that named ADIs must pay within a defined short window after APRA issues an invoice for APRA’s models-based assessment and supervisory services.

The instrument directly affects the named authorised deposit-taking institutions listed in the Schedule, and indirectly affects APRA as the recipient of the charges and the entity exercising the delegated authority. The Schedule breaks the affected ADIs into two groups by amount.

The higher-charge group, required to pay $224,400 (inclusive of GST), comprises: Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; Macquarie Bank Limited; and ING Bank (Australia) Limited. The second group, each required to pay $110,000 (inclusive of GST), comprises: Bendigo and Adelaide Bank Limited and Suncorp-Metway Limited. Each named institution is listed in Column 3 as the "Person required to pay the charge."

The instrument also defines "ADI" by reference to section 5 of the Banking Act 1959. That cross-reference means the term has the statutory meaning provided in the Banking Act, as the instrument explicitly states in its Interpretation. The instrument does not list any other ADIs in the Schedule, and it imposes no charge on unnamed ADIs within the text provided. Therefore, the text confines the payment obligation to the specific entities enumerated in the Schedule.

APRA is affected in that it receives the revenue from these charges, issues the invoices that trigger payment obligations, and provides the specified services,assessment of applications and ongoing supervision under the models-based approach,for which the charges are imposed. The instrument also records that APRA, via its delegate Stephen Brian Matthews, exercised the power to fix the charges under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. Thus, decision-making authority rests with APRA and its delegate within the delegation framework.

Other stakeholders are affected indirectly. For instance, auditors, compliance teams and in-house counsel at the specified ADIs must process the invoices and ensure payment within the 14-day window. Conversely, ADIs not named in the Schedule do not have an express payment obligation under this instrument as drafted. The Schedule’s GST-inclusive pricing indicates interaction with tax administration within the named institutions’ bookkeeping and tax reporting. The instrument does not on its face create new prudential requirements for third parties, nor does it declare any change to the substantive standards of the models-based approach; it is limited to fixing charges for APRA’s services tied to that approach.

The instrument creates a narrow set of duties and correlative administrative rights, as stated in its text and Schedule. Primary duties imposed on the named ADIs are payment obligations: each listed ADI must pay the specific amount shown in Column 2 of the Schedule, with payment due 14 days after receipt of APRA’s invoice. The Schedule repeats that the invoice may be issued at any time after the date of the instrument, which implies the payer’s 14-day obligation is measured from invoice receipt rather than from the instrument’s date. Each charge is stated to be "non-refundable" and "inclusive of GST," so the payer has no refund right in respect of the specified amount under the instrument as written.

APRA’s rights, as configured by the instrument, include the right to fix the charge amounts for the specified services, to issue an invoice at a time of its choosing after the instrument’s date, and to receive the payments within 14 days of invoice receipt. The instrument also establishes APRA’s entitlement to characterize the services being charged as "assessment of applications and the ongoing supervision of ADIs under the models-based approach." There is no provision in the instrument that confers a right on the payers to challenge the charge within the instrument itself; the instrument fixes the charges and labels them non-refundable. Any right of review, appeal or internal review against the charge would need to derive from other law or APRA practice, but the instrument text does not create or describe such rights.

The instrument also records the exercise of delegated authority: the delegate, Stephen Brian Matthews, signs and declares the instrument made under paragraph 51(1)(a) and (b) of the APRA Act. This establishes that the legal right to fix these charges derives from the APRA Act power as delegated, and that the delegate’s action is the operative decision to impose the duties on the named ADIs.

Procedural duties implicit in the text include APRA’s duty to issue an invoice if it seeks payment, and the payer’s duty to monitor for such an invoice because the instrument allows APRA broad timing for invoicing after the instrument date. The Schedule’s express statement that the charge is non-refundable also creates an administrative certainty: once paid under the invoice, the payer cannot expect reimbursement under this instrument.

What the instrument does not do is specify enforcement mechanisms for non-payment, provide dispute-resolution machinery regarding the quantum or applicability of the charge, or amend substantive prudential obligations of the ADIs. It confines duties to payment mechanics and identifies APRA’s right to invoice and collect the amounts specified.

The instrument’s text does not specify criminal penalties, civil sanctions, or administrative enforcement mechanisms for failure to pay the fixed charges. It fixes the charges, names the payers, sets the amounts, indicates the charge is non-refundable and prescribes that payment is due 14 days after receipt of APRA’s invoice, but it does not set out consequences for late payment, non-payment, or disputed invoices within the instrument itself.

Because the instrument is made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998, any concrete enforcement measures, debt-recovery processes or penalty regimes would need to derive from other provisions of the APRA Act or from general law (for example, standard civil remedies for debt recovery), but the instrument does not reference or invoke any such provisions directly. The instrument therefore leaves the question of how APRA will enforce or recover unpaid charges unspecified in the text provided.

The Schedule’s identification of the charge as "non-refundable" is a self-contained limitation on the payer’s recovery rights under this instrument; it does not create an enforcement penalty but clarifies that APRA will not credit or return the charge once paid. The instrument permits APRA to issue the invoice "at any time after the date of this instrument," which gives APRA timing flexibility that can affect the operational window for invoicing and the subsequent 14-day payment term; however the instrument does not prescribe any late-payment interest, administrative penalties, suspension of services, or referral to debt-recovery proceedings.

Readers should therefore note that enforcement modalities and remedies for non-compliance with the payment duty are absent from the instrument itself. Any actual enforcement or dispute-handling approach would be administered under APRA’s internal processes, other statutory powers, or ordinary civil law procedures, none of which are articulated in this instrument’s text.

The instrument explicitly situates itself within a statutory framework by referencing the legal provisions that authorise its making and define its operative terms. It is made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998, which is the stated source of authority for fixing these charges. The Interpretation clause of the instrument defines "ADI" by reference to section 5 of the Banking Act 1959; that cross-reference aligns the instrument’s use of the term with the Banking Act’s statutory definition. The instrument’s commencement is tied to registration on the Federal Register of Legislation under the Legislation Act 2003, which means the instrument’s legal commencement mechanics are governed by the Legislation Act.

The Schedule lists the amounts inclusive of GST. By expressly stating the charges are "inclusive of GST," the instrument engages with the tax treatment of the amounts, although it does not address GST remittance, input tax credits, or the broader obligations of suppliers and recipients under the A New Tax System (Goods and Services Tax) Act 1999. The GST-inclusive language nevertheless signals that APRA has priced the fee amounts to include GST, which affects how payers will record and process these amounts in their accounting and tax reporting.

The instrument does not purport to amend prudential rules, nor does it alter the substantive requirements of the Banking Act, prudential standards, or other instruments. Its function is confined to fixing charges for specified services. Where the instrument’s service description references the "models-based approach," that phrase may connect conceptually to prudential standards or supervisory methods found elsewhere, but the instrument itself does not incorporate or modify those substantive standards.

Because the instrument is silent on enforcement procedures, matters such as remedy for non-payment, APRA’s powers to recover debts, or any administrative penalties would be governed by other statutory provisions or by general law. The instrument likewise does not provide a dispute resolution procedure, meaning any contractual or statutory challenges to a charge would need to look to other legal pathways.

Finally, the use of a delegate signing the instrument invokes administrative law principles about delegation and decision-making authority, and potential procedural requirements under the APRA Act or the Legislation Act for validity. The instrument records the delegate and the statutory paragraphs relied upon, which provides an internal connection between the instrument and the enabling statutes.

The instrument text provided records a single dated act, signed 11 June 2019, and it does not include any amendments or indications of prior or subsequent modifications within its body. The instrument states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003," which establishes the commencement mechanics but does not itself constitute an amendment.

There is no schedule, amendment note, expiring provision, or successive instrument referenced in the text that would indicate that the charge amounts, payers, or payment terms are subject to automatic update or subsequent revision within this instrument. The Schedule itself fixes the amounts and identifies the named payers in a static table without delegated power to vary the amounts contained in the instrument text.

Because the instrument is a stand-alone, time-stamped instrument that takes effect upon registration, any amendment would require a fresh instrument or a formally recorded alteration under the enabling statutory framework. The text does not include an express revocation clause, sunset date, or linkage to an ongoing annual charge-setting series; it simply fixes charges for the financial year 2018-19 as indicated in the instrument title. The instrument does not document any prior instruments that it replaces, nor does it state that it is amending an earlier instrument.

Practically, that absence means that alterations to these charges or the list of payers would need to be implemented by a subsequent instrument made under the same or other enabling provisions of the APRA Act. The instrument’s date and signature demonstrate who exercised the delegation at that time, but the text contains no record of later amendments, rescissions, or errata.

Users relying on this instrument for compliance should therefore verify whether subsequent instruments have been made by consulting the Federal Register of Legislation or APRA’s public registers, because the instrument itself does not contain a record of amendments or revocations.

The instrument’s text, as provided, does not reference any litigation, court decisions, administrative reviews, tribunal determinations, or challenges to its validity. There are no cases named in the instrument, and it contains no discussion of prior litigation that might bear on its interpretation or enforcement.

Because instruments fixing charges can be susceptible in principle to legal challenge,for example challenges to the legality of a delegated power, procedural validity, or application to a particular person,the absence of any litigation history in the text means that anyone seeking to understand whether the instrument has been litigated must consult external records such as court judgments, tribunal decisions, or public registers of legal proceedings. The instrument itself does not record such events.

Within the document, the authority for making the instrument is expressly attributed to paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. If a payer wished to challenge the instrument’s validity, the natural legal inquiry would look to whether the delegate had power to fix such charges under that paragraph, whether any statutory conditions for the exercise of that power were met, and whether due process in making the instrument was observed. None of those issues are addressed in the instrument’s text, nor does the instrument include any internal appeal or review mechanisms.

In short, the instrument contains no litigation history, and it offers no guidance as to past or pending legal disputes about the charges it fixes. Anyone seeking a litigation record must consult judicial or tribunal databases or APRA’s publications; those records are outside the instrument’s text.

This instrument contains several concrete features that create operational and legal traps, all apparent from the text.

First, the invoice timing mechanism. APRA may issue the invoice "at any time after the date of this instrument," while the payer’s obligation is due 14 days after receipt of that invoice. That combination permits APRA to defer issuing an invoice and then impose a short 14-day payment window on the payer. Payers must monitor for invoices after the instrument date and be ready for a condensed payment period once an invoice is received.

Second, non-refundability. Each charge in the Schedule is labelled "This charge is non-refundable." Once paid, the payer has no right to a refund under the instrument as written. Payers should therefore ensure the invoice is correct and that the charge applies to them, because reversal under this instrument is not provided for.

Third, GST-inclusive pricing. The charges are expressly "inclusive of GST." This framing affects accounting, tax reporting and potential entitlement to input tax credits. The instrument does not address GST remittance or invoicing particulars beyond saying the amounts are inclusive, so payers must reconcile the amount with their own GST accounting practices.

Fourth, narrow payer list. The Schedule names specific institutions required to pay. If an entity is an ADI under the Banking Act but is not listed, the instrument does not impose a charge on it via this Schedule. Conversely, listed entities have the explicit payment obligation. Entities should not assume the charge applies or does not apply to them without checking whether they are named.

Fifth, delegated signature. The instrument is signed by a delegate, Stephen Brian Matthews, executed under paragraph 51(1)(a) and (b) of the APRA Act. The signature raises technical questions about delegation, and whether the delegate’s action complied with any procedural limits on delegation under the APRA Act; the instrument itself does not set out the delegation instrument or its limits.

Sixth, limited express legal consequences. The instrument fixes the charge amount and timing, but is silent on penalties, interest for late payment, and dispute-resolution processes. Payers cannot rely on the instrument to find procedural protections or explicit consequences for non-payment; these will need to be sought elsewhere.

Seventh, period reference. The instrument’s title references the 2018-19 financial year, but the Schedule allows APRA to invoice at any time after the instrument date. Payers should not assume the charge is necessarily tied to service dates falling within 2018-19, because the text only links its subject matter to models-based capital adequacy for that financial year without further temporal constraints in the Schedule.

Eighth, scope wording. The Schedule’s service description is concise,"Assessment of applications and the ongoing supervision of ADIs under the models-based approach",but it does not define the elements of those activities. That lack of definition creates potential disputes about whether a particular activity falls within the charged services; the instrument itself does not provide an interpretive test.

Each of these points follows directly from the instrument’s text, and practitioners should treat them as operational triggers for review, internal control checks, and potential legal queries.

Compliance under this instrument involves a small set of clear, text-derived steps for a named payer.

1. Confirm whether the entity is named in the Schedule. The instrument fixes payment obligations against explicitly listed persons in Column 3. If you are one of the named 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; Bendigo and Adelaide Bank Limited; or Suncorp-Metway Limited,then the charge applies to you as stated. If you are not listed, the Schedule as provided does not impose the charge on you.

2. Expect an invoice from APRA. The Schedule states the invoice "may be issued at any time after the date of this instrument." Liaise with APRA’s accounts or invoicing contacts and ensure internal accounts payable teams are aware to receive and prioritise an invoice relating to this instrument.

3. Pay within 14 days of invoice receipt. The payment timing is explicit: "14 days after receipt of APRA’s invoice for the charge." Firms should set internal payment runs to meet a 14-day window, including recognising the GST-inclusive amount on receipt.

4. Treat the charge as non-refundable and GST-inclusive. Because the Schedule states the amounts are "inclusive of GST" and "This charge is non-refundable," do not expect a refund under the instrument and ensure GST accounting reflects the inclusive nature when claiming input tax credits or reporting. Reconcile the invoice amount to the Schedule before payment to avoid inadvertent overpayment.

5. Verify invoice particulars. Although the instrument fixes amounts, confirm that the invoice correctly identifies the instrument, the charge amount, GST treatment, and the APRA contact. Given the instrument contains no dispute mechanism, it is prudent to address any discrepancy with APRA prior to payment.

6. Preserve records. Keep documentary evidence of the invoice, correspondence, and payment within your audit and compliance files, because the instrument creates a fixed statutory charge and the records will be necessary for internal control and for any external queries.

7. If in doubt, seek legal or tax advice. The instrument is silent on enforcement, remedies for non-payment, dispute resolution and the substantive reach of "models-based approach" activities. If there is any ambiguity about applicability, entitlement to a GST credit, or appropriate accounting treatment, consult counsel or tax advisers, and consider contacting APRA for clarification.

8. Monitor public registers. The instrument itself does not record amendments or revocation. To ensure ongoing compliance, check APRA releases and the Federal Register of Legislation for any subsequent instruments that might modify the charges, extend similar charges to other ADIs, or otherwise change the legal position.

Following these steps aligns operational practice with the obligations and mechanics specified in the instrument’s text.