Australian Prudential Regulation Authority instrument fixing charges No. 3 of 2017

The instrument is compact, but it rests on a few core legal and operational concepts which determine its effect.

Statutory power and delegation: The instrument is made by a delegate of APRA under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998. The instrument records that statutory source as the basis for fixing charges. The text does not include the full terms of paragraph 51(1)(a) and (b), but it identifies those provisions as the delegate’s authority to fix charges.

Commencement by registration: The instrument states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That places the operative commencement on the administrative act of registration rather than a fixed calendar date. The instrument itself is dated 20 June 2017 and includes that commencement formulation.

Defined terms: The Interpretation section defines "ADI" as shorthand for authorised deposit‑taking institution and points users to section 5 of the Banking Act 1959 for the substantive legal meaning. The instrument likewise defines "APRA" to mean the Australian Prudential Regulation Authority. Those definitions anchor who can be charged and who is fixing charges.

Scope of service charged: The Schedule identifies the nature of the services for which the charge is imposed: "Assessment of applications and the ongoing supervision of ADIs under the models‑based approach." The description is specific in subject matter (models‑based capital adequacy), and in function (assessment and ongoing supervision). It specifies the financial year covered by the title, indicating application to the 2016-17 financial year.

Fixed monetary amounts and GST inclusion: The Schedule lists two fixed fees: $309,100 (inclusive of GST) and $130,900 (inclusive of GST). Both amounts are stated as non‑refundable. The GST inclusive statement indicates how the amounts are to be understood for tax and payment purposes.

Named payors: The Schedule names the specific legal entities required to pay each stated charge. The first (higher) fee is allocated to the large incumbent banks Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; and Macquarie Bank Limited. The second (lower) fee is allocated to ING Bank (Australia) Limited; Bendigo and Adelaide Bank Limited; and Suncorp‑Metway Limited. The instrument does not articulate a formula or principle for the division; the Schedule itself performs the allocation.

Payment mechanics and timing discretion: The Schedule prescribes that the charge is payable 14 days after receipt of APRA’s invoice and expressly states that the invoice may be issued at any time after the date of the instrument. That provision gives APRA administrative discretion over invoice timing subject to the 14‑day payment period once invoiced. The Schedule also labels the charge non‑refundable, removing any automatic avenue for recovery of paid fees under this instrument.

Non‑refundable character: Both charges are explicitly described as non‑refundable in the Schedule. The combination of fixedness and non‑refundable status makes the instruments functionally one‑off levies on the named entities for the stated services.

Collectively, these concepts define a narrow, entity‑specific, invoice‑driven charging instrument under APRA’s delegated charging power for a specified regulatory regime for the 2016-17 financial year.

The instrument identifies, by name, which legal persons are required to pay the stipulated charges. The Schedule, under Column 3, lists the payors for each of the two prescribed charge amounts. The higher charge ($309,100 inclusive of GST, non‑refundable) is allocated to the following entities: Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; and Macquarie Bank Limited. The lower charge ($130,900 inclusive of GST, non‑refundable) is allocated to ING Bank (Australia) Limited; Bendigo and Adelaide Bank Limited; and Suncorp‑Metway Limited.

Those named entities are the persons required to pay the charge, under the instrument’s Schedule. The Interpretation section clarifies that "ADI" is shorthand for authorised deposit‑taking institution, with the meaning given in section 5 of the Banking Act 1959. The instrument therefore targets authorised deposit‑taking institutions, but only those ADIs explicitly listed in the Schedule are the payors fixed by this instrument. The Schedule’s phrasing does not purport to create a class charge covering all ADIs; it fixes obligations against specific, named entities.

Who bears economic incidence and who is legally obliged are distinct, but the instrument expressly states the person required to pay is the named entity. The text does not allocate or state any right for pass‑through of these costs to customers, nor does it address how the named ADIs might account for the fee internally or treat it in supervisory cost recovery accounting. The Schedule also does not identify affiliates, subsidiaries, or groups,only the named legal entities are listed. That means whether another legal entity in a corporate group bears any legal obligation under this instrument depends on whether that entity is the listed legal person.

The instrument’s timing provision gives APRA discretion over when to issue the invoice ("The invoice may be issued at any time after the date of this instrument"). Once an invoice is issued, the named payor must pay within 14 days after receipt. Those two clauses allocate procedural responsibilities: APRA decides when to invoice; the named ADI must ensure funds are available to pay in the 14‑day window.

Finally, the instrument does not include any general exemption or procedure for dispute, waiver, or remission of the fixed charge. Both amounts are stated as non‑refundable. Therefore the listed ADIs are the definitive legal targets of the charge as drafted. Any party not listed is not made a payor by this instrument.

The instrument imposes a discrete set of duties on the named ADIs and establishes complementary rights for APRA as the charging authority, subject to the text of the instrument.

Duties on named ADIs:

• Payment obligation: Each named ADI must pay the fixed charge specified opposite its name in the Schedule. The Schedule sets out two specified dollar amounts and the entities required to pay them. The legal obligation is to pay the specified amount inclusive of GST and non‑refundable.
• Timing obligation: The payment is due 14 days after receipt of APRA’s invoice. That creates a short, invoice‑triggered payment window that the payor must meet.

Rights and discretions of APRA (via the instrument):

• Fixing power exercised: The instrument records that APRA (through a delegate) has exercised its authority to fix charges under paragraph 51(1)(a) and (b) of the APRA Act. That establishes APRA’s right to set and demand the fixed fees as listed.
• Timing of invoice issuance: APRA may issue its invoice at any time after the date of the instrument. This gives APRA administrative discretion to determine when the 14‑day payment clock runs against each payor.
• Non‑refund stance: By describing the charges as non‑refundable, APRA has set the instrument to deny refunds under its own terms. The instrument does not list circumstances that would give rise to a refund.

Other legal relationships and implied duties:

• The Interpretation section identifies "ADI" with the statutory meaning in section 5 of the Banking Act 1959. That anchors which institutions are captured conceptually, but the Schedule converts that conceptual class into a discrete list of legal persons required to pay. The instrument does not create a process right for excluded ADIs or for entities that may dispute the entity identification.
• Commencement and registration: The instrument commences on the date it is registered under the Legislation Act 2003. That places a duty on APRA to ensure registration occurs for the instrument to operate. The named ADIs have a corresponding duty to monitor registration, since APRA may invoice at any time after the date of the instrument.

Absence of procedural rights in the instrument:

• The instrument does not set out internal review, objection, or appeal processes in relation to the charge. It does not provide an internal APRA mechanism for remission, nor does it create an explicit right to have the charge reconsidered. Similarly, the instrument is silent on whether payment under protest preserves any legal challenge. The only process‑oriented clause concerns invoice timing and the 14‑day payment period.

GST and tax treatment:

• The Schedule states that the listed amounts are inclusive of GST. That sets the parties’ understanding of the monetary figure to be paid; the instrument does not elaborate on the parties’ rights or responsibilities in respect of GST beyond that statement.

In sum, the core duties are straightforward and narrow: wait for APRA’s invoice; when received, pay the fixed, non‑refundable amount within 14 days. APRA’s rights under the instrument are to levy those fixed amounts, to invoice at its chosen time after the instrument date, and to treat paid amounts as non‑refundable. The instrument itself does not provide remedial, dispute, or remission procedures.

The instrument is limited in its content to the fixing of charges and the mechanics of payment. It does not itself create separate penalty provisions, enforcement mechanisms, or administrative sanctions within its text. The document fixes the charges and states when payment is due: 14 days after receipt of APRA’s invoice, with the invoice able to be issued at any time after the date of the instrument. The instrument also states that the charges are non‑refundable. Beyond those points, the instrument does not explicitly set out enforcement routes, interest for late payment, recovery procedures, or statutory penalties for non‑payment.

Because this instrument is made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998, enforcement of failure to comply with a charge fixed by APRA would depend on the APRA Act, other statutory provisions, and available civil remedies, but the instrument itself does not specify those enforcement pathways. The instrument does not, for example, incorporate any late payment interest, specify debt recovery processes, or stipulate automatic suspension of an ADI’s authorisation if payment is not made. It likewise does not identify administrative sanctions or refer to other statutory penalty regimes in the instrument text.

The absence of specified penalties in the instrument is an affirmative feature of the text. Where enforcement or penalty mechanisms exist, they are not stated in this instrument and so any enforcement must be effected under the legal framework external to the instrument, if available. The Schedule’s non‑refundable label functions as a substantive limitation on remedies against APRA in respect of payment under this instrument; it does not, however, by itself constitute a penalty provision or articulate consequences for non‑payment.

Practically, that means enforcement and penalties are matters that would have to be sought under other applicable law or APRA’s standard administrative processes, none of which are articulated within this instrument. Entities required to pay should therefore treat the obligation as a civil debt due under the terms set out here, while recognising that remedies or consequences for non‑payment are not set out in the instrument itself.

The instrument explicitly refers to several external statutory anchors, which determine its legal context and interaction with the broader legislative landscape. The instrument is made under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998, and it defines "ADI" by reference to section 5 of the Banking Act 1959. It also stipulates that it commences on the date of registration under the Legislation Act 2003. Those cross‑references define the primary interaction points.

APRA Act (authority to fix charges): The instrument is an exercise of a power found in the APRA Act. While the instrument does not reproduce the text of paragraph 51(1)(a) and (b), it records the statutory basis for the delegate’s action. Any challenge to the validity of the instrument would require reference to the APRA Act’s delegated power provisions, but the instrument itself does not restate them.

Banking Act (definition of ADI): The Schedule’s payors are named legal entities, but the Interpretation section states that "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 subject matter,models‑based capital adequacy requirements,to the statutory category of ADIs. The instrument does not, however, purport to alter or supplement the Banking Act; it uses the Banking Act only for definitional clarity.

Legislation Act 2003 (commencement by registration): The instrument’s commencement depends on registration under the Legislation Act 2003. That places the instrument within standard Commonwealth administrative law practice for statutory instruments and confers legal force on and from the date of registration.

GST law (tax-inclusive amounts): The Schedule states that the fees are "inclusive of GST". That wording interacts with Commonwealth GST law in practice for tax reporting and accounting, although the instrument itself does not give further direction on tax invoices, tax credits, or input tax credits. Entities will need to treat the listed amount as the total payable inclusive of GST for their internal accounting and any external tax reporting.

Civil and enforcement law (absence of enforcement terms): The instrument does not include specific penalty or recovery provisions. Any legal action to enforce payment, or any APRA administrative action for non‑payment, will therefore rely on other laws and APRA’s general statutory powers. The instrument’s silence on enforcement means it must be read alongside the APRA Act and other relevant Commonwealth laws to determine remedies and consequences for non‑payment.

Administrative law principles (delegation and procedure): The instrument was executed by an APRA delegate and dated 20 June 2017. The instrument therefore interacts with principles governing agency delegation, proper exercise of power, and administrative procedure. The instrument itself records the nomination of the delegate but does not set out delegation mechanics or any internal APRA procedural constraints.

In sum, the instrument is a narrowly framed statutory instrument that fixes fees and locates itself by explicit cross‑reference to other Commonwealth statutes. Its substantive effect operates in concert with, and subject to, the APRA Act, the Banking Act for the ADI definition, the Legislation Act for commencement, and underlying Commonwealth GST and enforcement laws for tax and recovery consequences. The instrument does not attempt to displace or restate those laws; it relies on them for legal context and operational effect.

The instrument text provided is a single instrument dated 20 June 2017 and signed by Stephen Brian Matthews, Executive General Manager (Corporate). The instrument itself does not contain any internal amendment clauses, transitional provisions beyond stating the commencement mechanism, or schedules indicating prior versions. The text does not record any amendments to the instrument, nor does it state that it is amending a prior instrument.

Specifically:

• The instrument is captioned "Australian Prudential Regulation Authority instrument fixing charges No. 3 of 2017". The numbering suggests a sequential instrument series in 2017, but the instrument text itself does not identify any superseded instruments or amendments.
• The instrument contains a Schedule that fixes the charges for the specified services for the 2016-17 financial year. The Schedule’s figures, payors, and payment terms are stated as fixed by this instrument.
• No revocation or variation clause appears in this instrument text. The instrument does not say it revokes prior instruments or replaces prior fee schedules.

Because the instrument commences on registration under the Legislation Act 2003, any alteration after registration would generally require a further instrument exercising the same statutory power. The provided text does not show any subsequent instruments, repeals, or supersessions. The instrument therefore appears in the supplied text as a standalone, single‑issue instrument fixing charges for the relevant period.

For persons tracking amendment history in practice, the absence of any amendment language here means that any changes to the amounts, payors, timing, or other terms would appear only in a later instrument. The text does not itself create a mechanism for amendment or provide a sunset other than its subject matter being for the financial year 2016-17 as per the instrument’s title.

Practically, the information available in the instrument only records the original fixing as at 20 June 2017. Any lawyer, compliance officer, or researcher wanting to confirm whether the instrument has been amended, revoked, or replaced must consult subsequent instruments and the Federal Register of Legislation entries, since the instrument does not include its subsequent amendment history.

The instrument text supplied does not record any litigation history. It is a standalone instrument that fixes charges and contains no references to court proceedings, decisions, or judicial review outcomes. The instrument does not cite any case law nor record any prior legal disputes concerning its subject matter.

Because the text does not include enforcement provisions, or procedural dispute channels, it likewise does not document any litigation arising from non‑payment, challenges to APRA’s authority in respect of the fixing of charges, or disputes over classification of payors. The instrument is silent on any remedies or rights to seek review in respect of its terms.

For those who require litigation history, the instrument itself provides no record. Any litigation arising from this instrument would be external to the document and would have to be identified by searching judicial records, Federal Court or other court dockets, or legal reporting services. The instrument does not purport to summarise or list such cases.

Given the absence of litigation information in the text, users should treat the instrument as descriptive of the charge regime and consult external legal databases to determine whether any legal challenges were mounted against this particular instrument or APRA’s charging practice in connection with it.

This instrument contains a number of concrete features that can create operational risk or unexpected outcomes for the named payors and for advisors dealing with APRA charges. Those features are embedded in the instrument’s precise wording.

Non‑refundable charges: Both fixed amounts in the Schedule are expressly described as non‑refundable. That means once the listed entity has paid the fee under this instrument, the instrument itself disclaims any refund right. No conditions or exceptions for refund are stated. Legal or commercial arguments for recovery would therefore have to proceed outside the instrument.

GST inclusive amounts: The Schedule states the amounts are "inclusive of GST". That fixes the payable dollar figure as final on its face. Parties should not assume that an additional GST component will be added to the listed figure. For accounting purposes, the inclusive phrasing determines the gross cash outlay.

Invoice timing discretion: The Schedule provides that "The invoice may be issued at any time after the date of this instrument." APRA therefore controls when the invoice is sent and can, in principle, issue it immediately or much later. Once APRA issues an invoice, the payor has 14 days to pay. The combination means there can be uncertainty over when the 14‑day period will run and therefore uncertainty as to cashflow planning if APRA delays invoicing.

Short payment window: Payment is due within 14 days of receipt of the invoice. That is a short period for arranging payment of a large, non‑refundable charge (the stated amounts are $309,100 and $130,900 respectively). Failure to have internal processes prepared to meet that window could lead to late payment.

Entity naming specificity: The Schedule lists specific legal entities by name. Payment obligations rest on those named entities. If a legal entity receives an invoice but is not the exact entity named in the Schedule, that may raise a dispute over legal obligation. Corporate groups should check whether the legal entity name on APRA’s invoice matches the entity named in the Schedule. The instrument does not provide a mechanism for APRA to amend a payor name within the instrument.

No stated enforcement mechanism in the instrument: The instrument does not state penalties, late interest, or enforcement steps. That can create uncertainty about consequences of non‑payment, and it does not provide guidance on whether APRA will treat non‑payment as regulatory non‑compliance or merely a contractual debt. Entities should not assume there are no consequences; rather the instrument simply does not detail them.

No procedural or review rights provided: The Schedule and instrument do not outline objection, remission, or dispute procedures. The lack of an internal process in the instrument means any challenge will depend on external legal avenues or on APRA’s general administrative processes, neither of which are articulated here.

Single financial year label but no expiry clause: The instrument title references the financial year 2016-17. The instrument itself, however, does not contain an express expiry clause or retrospective limitation other than its subject matter and commencement by registration. Parties should confirm whether APRA intends the charge as a one‑off for that year and verify whether subsequent instruments have been made for later years.

Potential mismatch between statutory power and practice: The instrument records the delegate’s exercise of power under paragraph 51(1)(a) and (b) of the APRA Act. Any party wishing to challenge the lawfulness of the charge would need to scrutinise whether the power was validly exercised and whether the delegate had authority, but the instrument itself records only that the delegate acted under those paragraph references.

In practice, these "gotchas" boil down to: non‑refundability, APRA’s invoice timing, short payment window, entity naming precision, and absence of procedural protections in the instrument itself. Each is grounded in the literal text of the Schedule and Interpretation clauses.

Compliance under this instrument is narrowly defined and operationally straightforward, but it requires attention to timing, entity identification, and internal accounting controls. The instrument sets out only a small number of concrete compliance steps.

1. Confirm legal identity:

   • Verify that your organisation is one of the named legal entities in Column 3 of the Schedule. The instrument names payors precisely. Only the entities listed,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; and Suncorp‑Metway Limited,are made payors by this instrument. If the legal entity of the group differs from the name used in the Schedule, clarify immediately with APRA whether the invoice is directed at the correct legal person.

2. Monitor registration and invoice issuing:

   • The instrument commences on the date of registration under the Legislation Act 2003. APRA may issue an invoice at any time after the date of the instrument. Practically, ensure registry monitoring systems capture the instrument’s registration date and that treasury or accounts payable functions are prepared to receive a potential invoice at short notice.

3. Prepare for the 14‑day payment window:

   • Once APRA issues an invoice, payment is due 14 days after receipt of the invoice. That is a tight window for large sums. Implement an internal approvals and funds transfer process that can approve and execute payment within that period. Where necessary, ensure signatory authorities and intercompany funding arrangements are pre‑cleared to meet the time frame.

4. Account for the GST‑inclusive amounts:

   • The Schedule states both amounts are inclusive of GST. From an accounting perspective, record the liability and payment as inclusive amounts. If input tax credits or GST reporting are relevant, coordinate with tax advisers to record the tax treatment correctly. The instrument does not address tax invoices; ensure APRA supplies any tax invoice required for GST purposes so that your entity can claim input tax credits where applicable.

5. Treat the charge as non‑refundable:

   • The Schedule labels the charges non‑refundable. Do not assume a refund will be available. If there is a substantive basis to seek refund or remission (for example, an overpayment or mistaken invoicing), seek legal or administrative advice promptly and preserve rights by documenting any payment under protest.

6. Maintain records:

   • Keep the instrument and any APRA invoice and correspondence in a central compliance file. Record the date of receipt of APRA’s invoice, the date of payment, and the accounting treatment. Retain documentation that proves the legal entity identity matched the Schedule’s named entity, in case of subsequent queries.

7. Consider governance and budget implications:

   • Given the amounts involved ($309,100 and $130,900 inclusive of GST), ensure that budgeting and cost allocation processes have been updated to place the fee in the correct expense line. If the amount is to be recharged within a corporate group, ensure intercompany documentation is prepared in advance.

8. If in doubt, seek clarification from APRA:

   • The instrument provides limited procedural detail and no internal appeal mechanism. If there is any doubt about invoice accuracy, the named payor should promptly contact APRA to seek clarification before or on receipt of an invoice. Document any communications.

9. Do not rely on the instrument for enforcement detail:

   • The instrument does not specify penalties for non‑payment or remedies. Compliance should be proactive. If payment cannot be made within the 14‑day period, notify APRA immediately and seek an agreed extension in writing, recognising the instrument itself does not provide for extensions.

10. Check for subsequent instruments:

    • The instrument fixes charges for the 2016-17 period. For ongoing compliance, verify whether APRA has issued subsequent instruments for later financial years or any amendments that affect current obligations.

These steps are grounded in the instrument’s mechanics: named payors in the Schedule; GST‑inclusive, non‑refundable amounts; APRA’s discretion on invoice timing; and the 14‑day payment term. Following the practical steps above aligns internal processes with the instrument’s concrete requirements.