Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2022

The instrument rests on a small set of legal and administrative concepts. First, it is an exercise of APRA's delegated power to fix charges, invoking "paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998." That is the stated legal basis for the delegate to "FIX the charges specified in the attached Schedule of charges in respect of the specified services provided by APRA." The instrument therefore functions as an administrative pricing decision, not as a substantive prudential direction or legislative amendment.

Second, the instrument uses a compact Interpretation section to identify relevant terms. It defines "ADI" as an abbreviation for "authorised deposit-taking institution" and expressly states that this term "has the meaning given in section 5 of the Banking Act 1959." It also defines "APRA" as "the Australian Prudential Regulation Authority." Those definitions anchor the instrument's subject matter to the statutory taxonomy used in banking and prudential regulation.

Third, the Schedule names the subject matter of the charge: "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The phrase "models-based approach" appears only in the Schedule and the instrument's header "Models-based capital adequacy requirements for ADIs for the financial year 2021-22," thereby tying these charges to APRA's work related to models-based capital adequacy for that specific financial year.

Fourth, the Schedule operationalises the charge-fixing by providing four columns: nature of services, amount of the charge, person required to pay, and when the charge is to be paid. The amounts are stated to be "inclusive of GST" and "non-refundable." The payment timing is defined as "14 days after receipt of APRA’s invoice for the charge" with the additional drafting note that "The invoice may be issued at any time after the date of this instrument."

Lastly, the instrument records the delegate who made the instrument, including the delegate's name and position. That records the administrative provenance of the fixing decision and signals that the instrument is an exercise of delegated authority within APRA's enterprise services function.

These concepts together show the instrument's limited technical role: it sets fixed fees, names payers, declares tax inclusiveness and refund status, and prescribes payment timing for a specified APRA supervisory activity for a defined year.

The Schedule expressly lists the persons required to pay the charges. The instrument fixes two distinct charge levels and attaches each level to named entities.

At the $486,200 level (amount given as "$486,200 (inclusive of GST)"; instrument notes "This charge is non-refundable") the persons required to pay are listed, by name, as:

• 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

At the $82,500 level (also stated "inclusive of GST" and "non-refundable") the Schedule lists:

• Bendigo and Adelaide Bank Limited

The instrument’s Interpretation section defines "ADI" as having the meaning given in section 5 of the Banking Act 1959. The Schedule’s expressed nature of service , "Assessment of applications and the ongoing supervision of ADIs under the models-based approach" , ties the activity to ADIs. The Schedule therefore names a set of ADIs that are obliged by this instrument to pay the specified amounts.

APRA is the recipient of the charge. The instrument records that the charges are fixed "in respect of the specified services provided by APRA." APRA, via its delegate, is authorised to invoice the named persons. The instrument states when payment is due, namely "14 days after receipt of APRA’s invoice for the charge," and that "The invoice may be issued at any time after the date of this instrument."

The instrument does not purport to make the charge payable by any person other than those named in the Schedule. It does not use language such as "each ADI" or "ADI holders"; rather it names particular entities. The Schedule therefore confines the immediate, direct fiscal effect to the listed companies. The instrument does not specify any secondary or indirect subjects of the charge (for example, affiliates, subsidiaries, or other market participants). No other parties are identified in the text supplied as liable to pay these particular charges.

Duties imposed by the instrument are narrow and explicit. The primary duty created is a duty on each named person in the Schedule to pay the fixed charge specified opposite their name. Each charge is described as "non‑refundable" and as "inclusive of GST." The timing duty is defined: the charge is "to be paid 14 days after receipt of APRA’s invoice for the charge." The Schedule adds that APRA "may" issue an invoice "at any time after the date of this instrument." Taken together, the legal duties are (1) to pay the fixed amount, (2) to pay within 14 days after receipt of invoice, and (3) to accept that the charge is expressed as GST inclusive and non‑refundable.

Rights and administrative entitlements are limited as expressed. APRA, through its delegate, has the right to fix the charges as recorded and to issue invoices at its election after the instrument date. The instrument itself does not create express procedural rights for payers, such as a right to seek a refund, to defer payment, to dispute the charge, or to obtain a formal review within the instrument text. The only statement that touches on remedy or exception is the flat statement "This charge is non-refundable."

The instrument records the statutory source of the delegate’s power: paragraph 51(1)(a) and (b) of the APRA Act 1998. That identifies the legal right of APRA (or its delegate) to fix charges under the specified provision, insofar as that statutory provision authorises such a delegation and exercise. The instrument itself does not elaborate the scope of the underlying statutory power or any statutory constraints that might apply beyond the enabling citation.

In consequence, the immediate legal obligations and entitlements under this instrument are factual and limited: nominated ADIs must pay named amounts inclusive of GST, non‑refundable, within 14 days of APRA’s invoice; APRA may issue invoices at any time after the instrument's date and collect the amounts fixed. The instrument does not set out dispute, refund, or enforcement processes, nor does it create or modify any prudential obligations beyond the imposition of the fees for the stated supervisory services.

The instrument itself does not state any penalties, interest charges, enforcement steps, or sanctions for non-payment. Its operative text is confined to fixing charges, identifying payers, and prescribing payment timing relative to APRA's invoicing. Because the instrument does not include enforcement provisions, there is no text within the instrument that prescribes late payment interest, debt-recovery procedures, administrative penalties, or any automatic consequences for failure to pay within the 14‑day window specified.

The absence of enforcement language in the instrument is material when interpreting practical compliance risk. The instrument fixes an obligation; it leaves any subsequent enforcement to other statutory powers or administrative processes not detailed in this document. The instrument does record the enabling authority used , "paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998" , but it does not itself invoke or restate any enforcement branches of that Act or other statutory provisions that could be used to recover unpaid amounts.

Practically, that means the instrument communicates an immediate payable obligation but does not set out in‑instrument consequences for breach. If enforcement is required, APRA would need to rely on powers conferred elsewhere in statute or on general legal processes (contract or common law remedies, or statutory recovery powers), none of which are described in this instrument. The Schedule does, however, make clear that APRA may issue the invoice "at any time after the date of this instrument," which gives APRA unilateral control over the moment the payment clock (14 days) starts to run.

The instrument's silence on enforcement therefore creates an operational gap: the instrument fixes a charge and demands payment within a short time after invoice, but it does not, on its face, specify how APRA will proceed if payment is not made, or whether APRA will treat the charge as a debt, apply interest, or take administrative measures. Users and payers must therefore look beyond this instrument for any enforcement mechanisms or consult APRA for its invoicing and recovery practices.

The instrument expressly interacts with a small set of other legislative texts by reference. First, it relies on "paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998" as the statutory authority for the delegate action. The instrument therefore stands as an administrative action taken under that statutory power; any limits, procedural requirements, or review rights embedded in the APRA Act would form the legal context for this instrument, although the instrument itself does not restate those external provisions.

Second, the Interpretation clause defines "ADI" by reference to "section 5 of the Banking Act 1959." By doing so, the instrument ties the scope of the services and the subject ADIs to the legal taxonomy established in the Banking Act. The instrument does not attempt to redefine an ADI or expand the class of entities; it imports the Banking Act definition to establish who is in concept the subject of the models‑based supervisory activity described.

Third, the instrument’s commencement text states it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That is an explicit procedural linkage to the Legislation Act 2003 mechanism for commencement by registration. The instrument therefore interacts with that Act for the timing of its legal effect, as distinct from its dated signature (28 June 2022).

Fourth, each charge is stated "inclusive of GST." That phrase in the Schedule signals an interaction in practice with the GST regime, insofar as the prices fixed take GST into account. The instrument does not cite or interpret the A New Tax System (Goods and Services Tax) Act or any taxation law, it only records that the amounts specified are inclusive of GST. The presence of that phrase will be relevant to accounting, invoicing, and tax reporting but the instrument does not itself set the tax treatment rules.

Beyond those explicit references the instrument is silent on interactions with other statutes, contractual covenants, licence conditions, or prudential standards. It does not purport to amend the Banking Act, the APRA Act, or APRA prudential standards; its function is the administrative fixing of charges under the delegate power. Any interaction with enforcement regimes, insolvency law, company law, taxation law, or contractual arrangements would need to be traced outside this instrument, since it contains no provisions on those matters beyond the cross‑references noted.

The text supplied records a single instrument fixed and signed on 28 June 2022. It carries the formal title "Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2022" and is presented with an attached Schedule of charges. The instrument states it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." There is no express amendment clause in the instrument text itself, and no subsequent or prior amending instruments are included or recorded in the material provided.

Because the instrument is an exercise of delegated administrative power under paragraph 51(1)(a) and (b) of the APRA Act, amendments to the charges fixed by this instrument would, in form, require a further instrument made under the same statutory authority. The instrument does not purport to be permanent; its header ties it to the "financial year 2021-22" in relation to "Models-based capital adequacy requirements for ADIs." That temporal description implies that the charges are for that specific financial year rather than a standing perpetual charge schedule, but the instrument does not itself state an expiry date.

No textual record of amendments, revocations, or prior versions is included in the instrument as provided. The instrument does not include transitional provisions or savings clauses that would indicate it supersedes earlier instrument(s). Therefore, on the material provided, the amendment history is nil: the instrument as supplied is a single decision fixed on 28 June 2022 with commencement tied to registration. Any subsequent amendment, revocation, or replacement would be effected by a separate instrument under the relevant statutory delegation and would be recorded separately on the Federal Register of Legislation. Such subsequent instruments are not part of the supplied text.

The instrument contains no reference to litigation, court proceedings, tribunal decisions, or prior disputes. The text does not record any legal challenges to the charging decision, nor does it annex reasons that refer to litigation or judicial interpretation. The Schedule and operative paragraphs are framed as an administrative fee-fixing measure and contain no discussion of contest, appeal, or adjudication.

Because the instrument is silent on review or dispute resolution mechanisms within its text, the instrument itself does not generate an internal record of litigation outcomes. If a person or entity sought to challenge the instrument's validity, amounts or application, that litigation would be conducted under the relevant judicial review, statutory appeal or dispute resolution mechanisms provided elsewhere in statute or common law. None of those pathways are described in the instrument.

On the face of the provided text, there is no litigation history to report. The instrument neither cites cases nor records any prior proceedings. Users seeking to understand whether the decision to fix these charges was or has been litigated would need to consult external legal records or the public registers of relevant courts and tribunals. Nothing in the instrument's text indicates that such litigation exists or has been considered in the content of the instrument.

The instrument's compact drafting contains several features that create operational and interpretive risks for the named payers and for APRA's administration; those features are explicit in the text.

1. Invoice timing and short payment window. APRA retains unilateral control over when the invoice is issued, because the Schedule states "The invoice may be issued at any time after the date of this instrument." Once the invoice is issued, the payer has only "14 days after receipt of APRA’s invoice for the charge" to pay. That combination creates the practical risk of a very brief notice period between invoice receipt and payment obligation. The instrument gives APRA the timing discretion; payers must be ready to meet a tight payment deadline once invoiced.

2. Non‑refundability. Each stated charge is labelled "This charge is non-refundable." That is an absolute term inside the instrument and removes any entitlement under the instrument for a refund. If a payer wishes to dispute the appropriateness or accuracy of a charge after payment, the instrument provides no in-built refund mechanism. The payer's recourse, if any, would therefore lie beyond the instrument.

3. GST inclusive pricing. The amounts shown are "inclusive of GST." From an accounting and tax perspective, that raises operational questions such as whether the payer will treat the amount as GST-inclusive for input-tax-credit purposes, how APRA will present the GST element on the invoice, and the implications for tax reporting. The instrument does not specify the GST quantum or how APRA will itemise the tax on the invoice.

4. Fixed named payers. The Schedule ties each fixed amount to specific legal entities. The instrument does not address structural changes to those entities, such as reorganisations, mergers, acquisitions, name changes, group consolidations or carve-outs. If a named entity ceases to exist, or undergoes corporate changes, the instrument contains no mechanism that reallocates liability or permits substitution of a payee.

5. Silence on enforcement and remedies. The instrument imposes the obligations but is silent on penalties, interest, or enforcement steps for non-payment. That gap means the named payers face an obligation with unclear immediate consequences if not fulfilled, and APRA's enforcement approach would need to be drawn from other statutory powers or administrative practice.

6. Temporal scope. The instrument header ties the charges to "Models-based capital adequacy requirements for ADIs for the financial year 2021-22." The instrument does not specify an explicit expiry or whether the amounts are a one-off levy for that year. That may generate uncertainty about whether these are recurring annual charges or one-off charges tied to the stated year.

7. Delegation provenance. The instrument is made by a delegate of APRA (Stephen Brian Matthews, Executive Director, Enterprise Services) and cites paragraph 51(1)(a) and (b) of the APRA Act. The instrument does not reproduce the delegation instrument or record the scope of the delegation beyond the citation. Questions about whether the delegate correctly exercised delegated power would turn on materials not included in this instrument.

These "gotchas" are features that arise directly from the instrument's wording. They are not interpretive assumptions; they are practical implications of the payment timing, non‑refundability, named‑entity liability, GST treatment, and the instrument's silence on enforcement and review.

Compliance under this instrument is procedural and monetary. The instrument fixes the amounts payable, names the payers, and prescribes how and when payment is to be made relative to APRA’s invoice. Steps that a named payer should take, grounded in the instrument text, are:

1. Confirm whether you are named. The Schedule lists the persons required to pay. If you are one of the named entities (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), you have an obligation under this instrument to pay the stated amount.

2. Budget for the fixed amount inclusive of GST. The Schedule sets out explicit dollar amounts: $486,200 (inclusive of GST) for the six named institutions in the higher tier, and $82,500 (inclusive of GST) for Bendigo and Adelaide Bank Limited. Each amount is labelled "non-refundable." Ensure your accounts payable allocation matches the GST-inclusive figure.

3. Monitor for APRA’s invoice. APRA may issue the invoice "at any time after the date of this instrument." That means you should maintain a process to receive and act on APRA invoices promptly. The instrument gives APRA the discretion to select the invoice date, and that date triggers the 14‑day payment clock.

4. Observe the 14‑day payment deadline. The Schedule requires payment "14 days after receipt of APRA’s invoice for the charge." Prepare internal workflow so the invoice can be validated and payment executed within that 14‑day window.

5. Account for non‑refundability. Because the charge is declared "non-refundable," treat the payment as final in your internal approvals unless you intend to pursue an external legal challenge or other remedy. The instrument provides no in-built refund mechanism.

6. Seek clarification on GST itemisation. Although the amounts are GST inclusive, the Schedule does not specify how APRA will itemise GST on invoices. Ask APRA, before payment, to confirm invoice layout and whether the GST component will be separately stated for tax and accounting purposes.

7. Keep records of receipt and payment. Given the instrument’s silence on enforcement and dispute processes, maintain contemporaneous records of invoice receipt, internal clearance of the amount, payment instructions, and remittance. That documentation will be the primary evidence of compliance with the instrument’s command.

8. Address corporate structure changes proactively. If the named legal entity is subject to a change in corporate structure (for example, is being merged, absorbed, or re-registered), raise the matter with APRA promptly. The instrument names legal entities; it provides no mechanism for substitution or reassignment of liability inside its own text.

9. Confirm commencement date for legal effect. The instrument "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." Confirm the actual registration date to determine when APRA's invoice power and the instrument’s legal effect were available to APRA.

10. Engage legal or treasury counsel if considering challenge. The instrument does not set out review routes or refunds. If you believe the charge is incorrectly imposed, consult with counsel regarding potential avenues (statutory review, judicial review, contractual claims). Any challenge will proceed outside the instrument’s text.

Following these steps adheres to the duties and timelines fixed in the instrument. The instrument itself does not provide procedural dispute or enforcement detail; the practical compliance focus is therefore on prompt invoice monitoring, budget provisioning, payment within 14 days, and record-keeping.