Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2024

The instrument operates on a small set of legal and operational concepts, all of which are explicit in the text.

• Statutory basis and delegation. The charging power invoked is paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. The instrument is made by an APRA delegate, Jane Elizabeth Magill, whose office and title are recorded. The instrument therefore relies on an internal delegation from APRA to the named delegate to fix charges under the APRA Act. The instrument does not reproduce paragraph 51(1)(a) and (b), it records that it is made under those provisions.

• Commencement. The instrument’s commencement is tied to registration under the Legislation Act 2003, rather than to the date it was signed. The instrument explicitly states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That means legal effect arises on registration rather than simply from signature.

• Subject matter: models-based capital adequacy oversight. The title and Schedule describe the nature of services as "Models-based capital adequacy requirements for ADIs for the financial year 2023-24" and, more specifically, the Schedule describes the nature of the charged services as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The phrase identifies the regulatory domain to which the charges attach, namely APRA’s assessment and supervision activities that relate to ADIs’ internal models or models-based capital calculations.

• Addressees and definitional cross-reference. The instrument identifies "ADI" as shorthand for "authorised deposit-taking institution" and refers to section 5 of the Banking Act 1959 for the meaning of ADI. The Schedule then lists individual legal persons, each being a named ADI, as the persons required to pay the listed charge.

• Financial mechanics: fixed, GST-inclusive, non-refundable amounts and payment timing. For each named ADI the Schedule fixes a specific dollar amount described as inclusive of GST. Each charge is labelled non-refundable. The Schedule sets the payment timing rule: payment is due "14 days after receipt of APRA’s invoice for the charge" and states the invoice may be issued at any time after the date of the instrument. There is no further procedural text in the instrument about invoicing method, billing address, or dispute resolution.

• Scope limitation by naming. The Schedule is restricted to specified institutions. The instrument therefore does not purport to set a general tariff applicable to all ADIs; it fixes charges against a defined list of entities and for a specified regulatory year.

• No ancillary procedures included. The instrument does not specify allocation of costs across APRA programmes, does not describe calculation methodology for the differential amounts among the named ADIs, and does not include conditions, waivers, or exceptions. It states the amounts, the payors, the due date and non-refundable, GST-inclusive status, and nothing further.

These concepts are explicit in the text. The instrument is a charging instrument in the technical sense, not a regulation of conduct or an instrument that creates duties beyond the payment obligation it imposes on named entities for a specified regulatory service.

The instrument imposes monetary obligations on a narrowly defined set of persons. The Schedule lists the named persons required to pay each fixed charge. Those named are:

• 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.

Each named person is required by the instrument to pay the fixed charge specified opposite its name in Column 2 of the Schedule. The instrument’s Interpretation clause also cross-references the statutory meaning of "ADI" in section 5 of the Banking Act 1959. That cross-reference clarifies that the term "ADI" used in the instrument aligns with the statutory category of authorised deposit-taking institutions, but the Schedule’s list is the operative list of payors for the fixed charges in this instrument.

The instrument therefore affects, directly and immediately, those named ADIs by creating a specific payment obligation for each. Indirectly, it will affect any person or entity that has a contractual or business relationship with the named ADIs where those institutions choose to recover or allocate the cost in pricing, internal cost allocations, capital planning, or reporting. The instrument itself does not address recovery or pricing policy. The instrument does not purport to impose charges on other ADIs that are not named in the Schedule.

The instrument also has procedural implications for APRA. APRA (through the delegate) has discretion about timing of invoice issuance because the Schedule states the invoice may be issued at any time after the date of the instrument. The named delegate signed the instrument and thus exercised the delegated power to fix the listed charges.

Tax authorities have a practical interest because the amounts are described as inclusive of GST. The Schedule records "inclusive of GST" for each listed amount; that has immediate implications for tax reporting and financial treatment for any party analysing the charges, but the instrument does not set GST policy beyond the inclusive labelling.

Finally, legal advisers and compliance officers of the named ADIs are affected because the instrument creates a legally fixed charge. Those advisers should note the payment timing rule of 14 days after receipt of APRA’s invoice, and the non-refundable character of the charges. The instrument does not provide dispute, remission, or refund mechanisms within its text.

Duties created by the instrument are tightly specified and monetary in nature. The core duties and limited rights that flow directly from the instrument are:

Duties

• Payment by named entities. Each person named in Column 3 of the Schedule is required to pay the fixed charge specified in Column 2 for the described service in Column 1. For example, Australia and New Zealand Banking Group Limited is required to pay $580,800 (inclusive of GST) for "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The instrument fixes these amounts as the charge to be paid.

• Timing of payment. The duty to pay is triggered by receipt of APRA’s invoice. The Schedule sets the due date as "14 days after receipt of APRA’s invoice for the charge." APRA may issue the invoice any time after the date of the instrument; therefore, the timing of the payor’s duty depends on invoice issuance and receipt.

• Acceptance of non-refundable status. Each charge is stated to be non-refundable in the Schedule. The payor therefore has no express refund right under this instrument for amounts once invoiced and paid, subject to any other legal rights that are outside the instrument text.

• GST-inclusive payment. Each amount is described as inclusive of GST. The payor is therefore required to provide the listed gross amount, not an amount plus GST.

Rights and implied or limited protections (as stated or evident in the instrument)

• Fixed quantum. The instrument fixes the quantum of each charge in clear dollar amounts. That provides certainty to each named payor of the precise nominal charge that can be invoiced under this instrument.

• Commencement certainty. The instrument specifies that it commences on the date of registration under the Legislation Act 2003. That creates a clear legal commencement moment for the payor to identify when APRA may lawfully issue invoices.

• Receipt-based due date. The payor’s obligation to pay is triggered by receipt of an invoice, rather than by an absolute calendar date. That gives the payor a known 14-day period from the receipt date to discharge payment.

Not present in the instrument, and thus not rights or duties here

• The instrument does not provide for any waiver, remission, or dispute resolution mechanism within its text. It does not prescribe the method of payment, invoicing particulars, interest on late payment, or sanctions for non-payment. It does not state any procedural right to appeal the charge within the instrument itself. The Schedule labels the charges non-refundable. Any other rights or duties would have to be found elsewhere in law or administrative practice, but the instrument does not supply them.

Operational implication

• The delegate has exercised a statutory charge-fixing power. The exercise results in a payment obligation for the named private persons. APRA retains operational control of invoice timing. The payor has a correspondingly narrow set of duties and limited procedural measures available under the instrument text.

The instrument itself contains no express penalty provisions, enforcement mechanisms, or sanctions for non-payment. The Schedule establishes the monetary charges, notes that the charges are non-refundable and inclusive of GST, and sets the due date as 14 days after receipt of APRA’s invoice, with the invoice capable of being issued at any time after the date of the instrument. Nowhere in the instrument text does APRA set out consequences for late payment, interest on arrears, steps for recovery, or administrative remedies.

Given the narrow text of the instrument, the only concrete enforcement-related content is the payment timing rule that creates an obligation to pay within 14 days of invoice receipt. The instrument does not purport to suspend the payor’s other legal defences, nor does it provide mechanisms for recovery. The instrument also does not mention administrative review, internal review, merits review, or judicial review processes related to the making of the charge.

Because the instrument is made under paragraph 51(1)(a) and (b) of the APRA Act 1998, it is likely that any enforcement authority that APRA has under other statutory provisions could be relevant, but the instrument itself does not refer to any such provisions or describe enforcement steps. The instrument is silent on whether APRA will exercise other statutory powers in the event of non-payment, and it does not specify whether non-payment would have regulatory consequences for the ADI beyond the outstanding debt. The Schedule’s label of the charges as non-refundable suggests APRA intends the amounts to be firm once invoiced and paid, but it does not address disputes about liability or calculation.

For practitioners, the immediate legal position arising from the instrument is that there is a legally fixed charge and a short payment window once an invoice is issued. The instrument’s silence on remedies and penalties means that the payor should treat the obligation as actionable and arrange to resolve any invoice dispute promptly, while also obtaining legal advice about broader enforcement rights and remedies that might exist under the APRA Act or other law, because such provisions are not reproduced here.

The instrument expressly cross-references three pieces of statute by name, and those cross-references structure its legal interactions.

• APRA Act 1998, paragraph 51(1)(a) and (b). The instrument is made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. The instrument therefore relies on that provision as the legal source of APRA’s authority to fix charges. The instrument itself does not reproduce the text of paragraph 51(1)(a) and (b), so the exact statutory scope and limitations of APRA’s charging power are not stated here. The instrument should be read as an exercise of the delegated authority conferred by those subparagraphs.

• Legislation Act 2003, registration. The instrument’s commencement provision specifies that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That means the Legislation Act procedures for registration and the Federal Register system determine the date the instrument takes legal effect. The instrument’s legal life and timing are therefore tied to the administrative process prescribed by the Legislation Act 2003.

• Banking Act 1959, section 5 definition of ADI. The instrument’s Interpretation clause states that "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959." By cross-referencing section 5 of the Banking Act, the instrument aligns the term "ADI" with the broader statutory definition of authorised deposit-taking institution in the Banking Act. In practice, this cross-reference confirms that the population of potential ADIs is the statutory class, but the Schedule then identifies particular ADIs that are the subject of the charge.

• GST and tax law interactions. The Schedule explicitly labels the amounts as "inclusive of GST." That language signals an interaction with the Australian GST system, because the charge has been presented as a GST-inclusive price. The instrument does not itself define or adjust GST liabilities; it simply specifies that the fixed amounts include GST. The instrument does not address input tax credits, GST reporting or how APRA will account for GST receipts. Those matters are governed by tax law and administrative practice outside the instrument.

• No express cross-reference to enforcement provisions. The instrument does not reference other APRA Act provisions that deal with recovery or enforcement of charges, nor does it reference court or administrative enforcement mechanisms. Accordingly, any enforcement or recovery action is not specified here and would need to be located in other statutory or administrative sources.

• No operational interaction specified for financial reporting. The instrument does not state how APRA will record or use the charges, whether charges will be offset against APRA’s budget, or whether APRA will publish charge receipts. Those interactions with public finance and accounting law are therefore outside the instrument text.

In sum, the instrument interacts with other laws by citing the APRA Act as the power source, the Legislation Act for commencement, the Banking Act for the definition of ADI, and by noting GST inclusion which implies tax law consequences. The instrument itself does not narrate further interlocking provisions, enforcement routes, or administrative processes, so any other statutory interactions must be sought in those other statutes and rules.

The instrument text as presented contains no amendment history. It sets out a single, self-contained fixation of charges for the 2023-24 financial year. There is no schedule of previous versions, no revocation clause for prior charging instruments, and no explicit savings or transitional provisions in the text.

Key points about amendment and versioning as drawn from the instrument:

• The instrument is dated 25 June 2024 and is signed by the delegate, Jane Elizabeth Magill. The commencement clause ties legal effect to registration under the Legislation Act 2003. There is no text indicating prior instruments are being varied, replaced, or revoked by this instrument.

• The instrument does not state that it supersedes or amends any previous APRA instrument fixing charges. It does not include an express clause revoking earlier instruments. That absence means, on the face of the instrument, readers should not infer an amendment or replacement of prior instruments from this text alone. If APRA intended to revoke or replace earlier charging instruments, that intention would ordinarily be stated explicitly, but it is not stated here.

• The Schedule fixes charges that are limited to a specific financial year and subject matter "Models-based capital adequacy requirements for ADIs for the financial year 2023-24." That dating suggests the instrument is time-bound in purpose, but the instrument contains no sunset clause or expiry provision within the text beyond the framing of the financial year in the title.

• Because there is no clause reserving APRA’s right to vary amounts or to reissue charges, any amendment to these fixed charges would require a subsequent instrument made under the same statutory authority. In other words, adjustments in future would need to be effected by a new instrument, though that procedural necessity is implicit rather than expressed in this text.

For practitioners seeking a documented amendment trail, the instrument itself does not provide one. To locate any prior instruments, revocations, or later amendments, a reader would need to consult the Federal Register of Legislation, APRA’s public records, or other official sources. The instrument’s omission of an amendment history in the text is notable but not determinative of whether prior or subsequent instruments exist outside this document.

The instrument as provided contains no reference to litigation, judicial consideration, or any legal challenge. There are no notes in the instrument text about any legal proceedings, stay orders, declarations, or other court action that relate to its making or operation.

That absence means:

• The instrument does not record any litigation that influenced its content, nor does it purport to implement a court-ordered remedy or settlement.

• There are no recorded judicial interpretations or precedent-driving decisions cited in the instrument. The instrument therefore stands as an administrative charge-fixing record without any attached litigation history in its text.

For those interested in whether the instrument has been the subject of litigation post-issue, or whether related APRA charging instruments have been litigated, the instrument does not supply that information. Any enquiries about litigation history must be conducted through external legal research resources, court records, or APRA releases. The instrument itself is silent on litigation.

This instrument contains several practical features and textual silences that are important to spot.

• Narrow named payor list. The Schedule names specific ADIs as the persons required to pay. If an institution is an ADI but not listed, it is not a payor under this instrument. Conversely, the named entities are unambiguously liable for the specific amounts set out. Do not assume a general ADI-wide tariff applies; this instrument applies only to the listed parties.

• GST-inclusive amounts. Each amount in the Schedule is explicitly "inclusive of GST." The charge figures are therefore gross amounts that incorporate GST. Practitioners must not add GST on top of the listed figures when calculating the invoice amount. That labelling also means the payor’s accounting treatment must reflect a GST-inclusive outflow.

• Non-refundable label. Every listed charge is stated to be non-refundable. The Schedule does not provide an exception. That means a successful later administrative challenge to APRA’s invoice, if any exists, would not be addressed within this instrument’s text. The label could limit APRA’s own internal policy on refunds, but the instrument contains no procedural rule allowing refunds.

• Invoice timing discretion. APRA may issue the invoice "at any time after the date of this instrument." The instrument’s commencement is the registration date under the Legislation Act 2003. APRA’s discretion on when to issue invoices means a charge could be invoiced shortly after registration or later in the financial year. The payor thus faces uncertainty about the exact billing moment and needs to be prepared to meet a 14-day payment deadline from receipt.

• Short payment window. Payment is due 14 days after receipt of APRA’s invoice. That is a short timeframe for an institution to query, dispute, or arrange intercompany transfers, especially for large sums. Operational teams must be ready to respond swiftly to an APRA invoice.

• No payment method or contact details. The instrument does not prescribe the invoicing method, payment channels, or billing contact. It also lacks a dispute resolution or internal review mechanism. Practitioners should not assume standardised invoicing or payment arrangements without confirming them with APRA.

• No enforcement or penalty text. The instrument does not say what happens if payment is late or withheld. It contains no late payment penalty, interest rate, or recovery mechanism. It also does not say whether non-payment has regulatory consequences. Do not assume the absence of text means absence of consequences under other law, but the instrument itself is silent.

• Lack of explanation for differential amounts. The Schedule lists differing amounts across the named ADIs, but the instrument does not explain the basis for the variation. The reader should not assume a particular calculation method unless that is documented elsewhere.

• Commencement tied to registration. The instrument commences on the date of registration under the Legislation Act 2003. That means the enactment date can differ from the delegate’s signature date. When preparing for compliance, check the Federal Register to confirm the registration date.

• Potential internal budgeting impact. The amounts are material. The instrument imposes a discrete, immediate liability. Operational and finance teams should ensure budgets and payments processes are aligned, including GST accounting.

• Title and signing delegate. The instrument is signed by a delegate, not necessarily by a statutory office-holder directly named in the APRA Act. That is permitted by the instrument’s own recital. Practitioners seeking to challenge the validity of the instrument on delegation grounds should look for the enabling delegation instrument in APRA records, because the text itself does not reproduce delegation documentation.

Compliance with this instrument is focused and procedural. The instrument creates a simple set of deliverables and timelines for the named payors. Steps to comply, drawn directly from the instrument text, are as follows.

1. Confirm whether your entity is listed. Check Column 3 of the Schedule for the precise legal name of the entity required to pay the charge. The Schedule lists the legal names of the payors. If your institution is not named in the Schedule, this instrument does not impose a charge on it.

2. Check the registration date. The instrument commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003. Confirm the registration date on the Federal Register to know when APRA may lawfully issue an invoice.

3. Expect invoice timing uncertainty. The Schedule states the invoice may be issued at any time after the instrument’s date. Prepare to receive an invoice at short notice and to locate the APRA billing contact internally so that the invoice can be processed quickly.

4. Arrange payment capability. Payments are due 14 days after receipt of APRA’s invoice. Ensure treasury, accounts payable and signatory arrangements are able to process large-value payments within that 14-day window. Note the amounts are inclusive of GST, so the invoice amount will be the gross amount to be paid.

5. Check GST accounting. The Schedule records each figure as "inclusive of GST." Coordinate with tax and accounting teams to confirm the correct GST reporting and whether an input tax credit is available for the payor. The instrument does not provide GST receipts or advice; coordinate with APRA’s accounts team if GST tax invoices are required for your records.

6. Treat the amounts as non-refundable. The Schedule states the charges are non-refundable. If you anticipate contesting the invoice, reconcile that contest with the non-refundable label. Seek legal advice promptly about available remedies outside the instrument because the instrument does not set out an internal APRA refund or dispute process.

7. Verify invoice particulars upon receipt. When you receive an invoice from APRA, confirm that the invoiced amount matches the figure in the Schedule, that the payor name on the invoice matches the entity expected to pay, and that the GST-inclusive labelling is consistent. Request an APRA contact or billing statement if any particulars are absent.

8. Keep contemporaneous records. Maintain records of the instrument, the registration notice, the invoice receipt date, the payment date, and any correspondence with APRA. Given the absence of enforcement or dispute language in the instrument, documentation will be necessary if matters escalate.

9. If in doubt, raise the issue with APRA promptly. Because the instrument is short on procedural detail, the practical path is to communicate with APRA’s billing or prudential contacts to clarify invoicing, payment channels, and GST tax invoices.

10. Consider legal review if disputing. If you dispute liability or the amount, obtain legal advice promptly. The instrument itself provides a short statutory obligation with a 14-day payment window and labels charges non-refundable. Any judicial or administrative relief must be pursued outside the instrument’s text.

These steps follow directly from the instrument’s operative content. The primary compliance obligations are to identify whether the charge applies to your entity, to confirm the registration date, to anticipate an APRA invoice at short notice, to pay the invoice within 14 days of receipt, and to account for GST. The instrument does not describe alternative arrangements or remedial procedures, so proactive liaison with APRA and early legal advice are prudent where any uncertainty or dispute exists.