Australian Prudential Regulation Authority Instrument fixing charges No. 4 of 2018

The instrument relies on a tight set of statutory and administrative concepts that determine scope, liability, timing and discretion.

Foreign bank: The Schedule defines “foreign bank” by reference to the Banking Act 1959 as “a foreign authorised deposit-taking institution (ADI) as defined in Subsection 5(1) of the Banking Act 1959,” and notes that s 67 of the Banking Act refers to foreign banks as overseas banks. The instrument therefore applies to entities that are foreign ADIs as defined in the Banking Act, when they seek APRA’s consent under paragraph 67(1)(c) of the Banking Act to have a representative office in Australia.

Types of charge: The Schedule contains two discrete charge types. The application charge is a one‑off fee of $10,000, payable “On lodgement of the application.” The annual monitoring charge is a recurring fee of $3,000 per financial year, applied “per foreign bank (regardless of the number of offices in Australia).” The Schedule makes clear that the annual monitoring charge funds APRA’s monitoring of both the operations and maintenance of the representative office and the foreign bank’s compliance with any conditions APRA imposes under subsection 67(2) of the Banking Act.

Proration and continuity rules: The Schedule contains two proration rules that alter how the annual monitoring charge is applied. If a foreign bank “does not have an office in Australia at the beginning of the financial year but establishes such an office part way through the financial year,” the monitoring charge “shall be pro-rated” so the bank pays only for the portion of the financial year after establishment. By contrast, if a foreign bank “ceases to have any representative offices in Australia before the end of the financial year,” the charge “shall not be pro-rated,” which results in a full-year charge notwithstanding closure during the year. These rules determine cashflow and exposure depending on timing of establishment and cessation.

Invoice and payment timing: APRA may invoice the annual charge either (a) when the foreign bank establishes an office in the financial year (if it had no office at the beginning of that year), or (b) at the beginning of the financial year in every other case. Payment is due 28 days after the foreign bank receives APRA’s invoice. The application fee is due on lodgement, which creates an immediate upfront payment obligation for applications.

Waiver and refund discretion: APRA retains explicit discretion to “waive or refund, in whole or in part, any application charge set out in the Schedule of charges if APRA is satisfied that special circumstances apply which would make it unjust or oppressive to impose a part of the charge, or the full amount of the charge.” The instrument gives an example where waiver/refund may be justified , an applicant applied for the wrong authorisation by mistake and withdrew the application before APRA had undertaken substantial work , and requires written application to APRA detailing special circumstances. The instrument also specifies three cases where no refund or waiver will be made: where the application is unsuccessful; where APRA has informed the applicant the application will be unsuccessful; or where the application is withdrawn or not proceeded with by the applicant. Separately, the Schedule states APRA may waive charges where the foreign bank is a central bank.

GST status: The Schedule expressly states each of the charges is GST exempt and cites Division 81 of A New Tax System (Goods and Services Tax) Act 1999 as authority for that GST treatment.

Delegated authority and commencement: The instrument records that it is made by a delegate of APRA under paragraph 51(1)(a)(b) of the APRA Act and that it comes into force on registration on the Federal Register of Legislative Instruments under the Legislation Act 2003. It also revokes the prior instrument Fixing Charges No. 2 of 2013.

These concepts define who is liable, how and when charges are imposed and collected, and the limited administrative discretion available to APRA to relieve or refund charges.

The instrument designates a narrow set of parties that will bear costs or exercise rights under its terms.

Primary payers: The Schedule labels “The foreign bank” as the person required to pay both the application charge and the annual monitoring charge. As defined in the Schedule, “foreign bank” means a “foreign authorised deposit-taking institution (ADI) as defined in Subsection 5(1) of the Banking Act 1959” and the Schedule notes that section 67 of the Banking Act refers to foreign banks as “overseas banks.” Therefore, the primary affected entities are foreign ADIs seeking APRA’s consent under paragraph 67(1)(c) of the Banking Act to establish or maintain representative offices in Australia, and foreign ADIs that already have such representative offices and must pay the annual monitoring charge.

Entities with multiple offices: The instrument applies the annual monitoring charge “per foreign bank (regardless of the number of offices in Australia).” Practically, that means a foreign bank operating multiple representative offices in Australia remains liable for a single charge of $3,000 per financial year rather than multiple charges per office. This reduces per-office cost for banks with multiple offices; it concentrates the annual charge on the legal entity, not on each physical site.

Central banks: The Schedule states that APRA “may waive” the charges where the foreign bank is a central bank. That provides a potential exemption path for central banks, though the Schedule conditions the exercise of that waiver on APRA’s discretion.

APRA: The instrument affects APRA’s administrative practice and revenue flows. APRA gains a defined fee schedule for processing applications to establish or maintain representative offices and a recurring monitoring fee. APRA is the decision‑maker on waivers and refunds and the party issuing invoices under the instrument.

Applicants who withdraw, are refused or re‑apply: The Schedule makes clear that applicants who withdraw or have applications refused are generally not eligible for refunds or waivers in certain circumstances. Note 2 emphasises that “the charge is payable in respect of every new application, even one that is made after the refusal or withdrawal of an earlier application for which the applicant also paid a fee.” Accordingly, applicants that submit multiple distinct applications bear the cost of each application unless APRA exercises its discretionary waiver power.

Accountants, compliance officers and legal advisers for foreign ADIs: These advisers will be affected operationally because they must budget for the $10,000 lodgement fee and the recurring $3,000 annual monitoring fee, and they must manage timing and documentation for any waiver requests. They must also monitor acceptance, invoicing and any pro rata treatment where offices are established part way through a financial year.

Other interested parties: The instrument does not create obligations on Australian banks or other domestic entities; its scope is limited to foreign ADIs and APRA. The instrument’s GST exemption also affects tax advisors calculating GST inputs and reporting, since the fees are GST exempt under Division 81 of the GST Act.

In short, foreign ADIs applying to establish or maintain representative offices in Australia will pay the fees; APRA administers payment, invoicing and waiver decisions; and advisers supporting those banks will need to incorporate these fixed fees and rules into operational planning.

The instrument creates specific payment duties on foreign banks and confers administrative rights and discretions on APRA.

Duties on foreign banks

• Payment of application fee: A foreign bank applying for APRA’s consent under paragraph 67(1)(c) of the Banking Act must pay $10,000 “On lodgement of the application.” That is an immediate, upfront payment obligation specified in the Schedule.
• Payment of annual monitoring charge: A foreign bank that has a representative office in Australia must pay an annual monitoring charge of $3,000 per financial year “per foreign bank (regardless of the number of offices in Australia).” The Schedule sets the timing: the charge is payable “Twenty-eight days after receipt of APRA’s invoice for the charge.” APRA may invoice at the beginning of the financial year or, where the bank establishes an office part way through the financial year, when the foreign bank establishes an office.
• Compliance with proration rules: The foreign bank must accept the pro‑rata assessment where the office is established part way through a financial year; conversely, the foreign bank must accept that no pro‑rata reduction will be applied if the bank ceases to have any representative offices before the end of the financial year.

Rights and administrative options for APRA

• Charging power: APRA, exercising delegated authority under paragraph 51(1)(a)(b) of the APRA Act, is authorised to fix the charges in the Schedule and to invoice and collect them in accordance with the Schedule’s rules.
• Waiver and refund discretion: APRA may “waive or refund, in whole or in part, any application charge set out in the Schedule of charges if APRA is satisfied that special circumstances apply which would make it unjust or oppressive to impose a part of the charge, or the full amount of the charge.” APRA also “may waive” the charges where the foreign bank is a central bank. The Schedule advises that an applicant seeking a refund or waiver must “apply in writing to APRA setting out details of the special circumstances that apply,” which establishes a procedural right for applicants to seek relief.
• Refusal of refunds: APRA has the explicit right to refuse refunds or waivers where statutory conditions apply: no refund or waiver will be made if “the application is unsuccessful” or if APRA “in the course of processing the application, informs the applicant that the application will be unsuccessful,” or if the applicant withdraws or does not proceed with the application.

Interaction between duties and rights

• Immediate payment vs discretionary relief: The application fee is due on lodgement, and the Schedule contemplates that APRA may later consider a written request for refund or waiver in special circumstances, but sets a strict bar against refund where the application is unsuccessful or withdrawn after APRA has processed it to the point of communicating likely refusal.
• Re-application cost: Note 2 states explicitly that the charge is payable for every new application, even where an earlier application was refused or withdrawn and a fee was paid for that earlier application. Therefore, the duty to pay attaches to each new lodgement, subject only to the written waiver/refund procedure and APRA’s discretion.

GST treatment

• GST exemption duty for payers: Each of the charges is GST exempt, as stated in the Schedule and referencing Division 81 of the GST Act. That affects how foreign banks record and report the charge, and how they treat GST input credits.

Administrative compliance duties

• Written waiver requests: Any foreign bank seeking relief must submit a written application to APRA with details of the “special circumstances” that would justify waiver or refund, per the Schedule. The instrument makes clear the procedural step that a foreign bank must take to invoke APRA’s discretion.

In sum, the principal duties are payment of specified fees according to timing and proration rules; the principal rights are APRA’s discretion to waive or refund application fees in limited circumstances and to waive charges for central banks, and the applicant’s right to apply in writing for such relief. The Schedule sets clear boundaries on when refunds will not be available.

The instrument itself is a charging instrument and does not introduce criminal penalties or administrative sanctions beyond invoicing and the requirement to pay specified charges. Its enforcement mechanisms are administrative, mediated by APRA’s billing and waiver procedures as set out in the Schedule.

Payment and invoicing enforcement

• APRA is authorised to invoice the annual monitoring charge either at the beginning of a financial year or, where a foreign bank establishes an office during a financial year, when that event occurs. The Schedule requires payment “Twenty‑eight days after receipt of APRA’s invoice for the charge.” The instrument therefore creates an invoice-and-pay flow. The instrument does not itself specify interest, late payment penalties, debt recovery procedures or compounding charges for non-payment; those enforcement mechanisms, if any, are not contained in the text of this instrument and would depend on APRA’s wider administrative processes or other statutory debt recovery provisions not reproduced in the Schedule.

No refund in specified circumstances

• The instrument creates a strict limitation on refund or waiver entitlements: “No refund or waiver will be made if the application is unsuccessful or if APRA, in the course of processing the application, informs the applicant that the application will be unsuccessful or if the application is withdrawn or not proceeded with by the applicant.” That operates as a form of administrative finality: applicants who proceed to the point of APRA processing and either receive an unfavourable assessment or withdraw do not have a right to repayment under the Schedule. That rule itself enforces costs on applicants.

Discretionary waivers

• APRA retains discretion to waive or refund application fees “if APRA is satisfied that special circumstances apply which would make it unjust or oppressive” and may waive charges for central banks. The Schedule requires written submissions for such relief. The exercise of APRA’s discretion is a governance point that can be enforced via administrative review or judicial review only to the extent permitted by administrative law principles, but no internal review or appeal mechanism is specified in the instrument itself.

No criminal sanctions or licence implications specified

• The instrument does not say that non-payment of these charges results in criminal penalties, licence suspension or other statutory sanctions. It fixes charges payable and describes invoicing and waiver processes. Any enforcement action for non-payment would need to rely on APRA’s other statutory powers or ordinary civil remedies, none of which are described in this instrument.

Revocation of earlier instrument

• By revoking Instrument Fixing Charges No. 2 of 2013, the instrument enforces a new set of charges and terminates the prior charging regime. The revocation is effected by the delegate under the cited statutory authorities.

GST exemption enforcement

• The Schedule states each charge is GST exempt and cites Division 81 of the GST Act, which governs tax treatment. Tax compliance and enforcement for GST treatment would rest with tax authorities and the taxpayer’s tax reporting obligations rather than with APRA’s charging instrument.

Practical enforcement risk

• Although the instrument itself does not prescribe interest or recovery processes, a foreign bank that fails to pay an application fee on lodgement may find its application not accepted or processed, because the Schedule conditions payment “On lodgement of the application.” Similarly, a recipient of an APRA invoice who does not pay within 28 days risks administrative follow-up by APRA, albeit the instrument does not detail penalties.

In sum, enforcement under this instrument is administrative: APRA invoices and collects fees; APRA may refuse refunds in stated cases; and APRA has discretion to grant waivers in limited circumstances. The instrument does not set out civil or criminal sanctions, interest or statutory debt recovery procedures within its text.

This instrument sits in a statutory framework and explicitly cross-references other legislation, which determines definitions, authority and tax treatment.

Authority and delegation

• The instrument is made under paragraph 51(1)(a)(b) of the Australian Prudential Regulation Authority Act 1998. That references the APRA Act as the source of delegated power to fix charges. The instrument also invokes subsection 33(3) of the Acts Interpretation Act 1901 for the revocation of the earlier instrument, using the Acts Interpretation Act to operate the revocation power. Both statutory references supply the legal authority for the instrument’s existence and scope.

Banking Act 1959

• The Schedule ties the charges to APRA functions under the Banking Act 1959. The application fee relates to APRA’s consent “under paragraph 67(1)(c) of the Banking Act 1959, to establish or maintain an office in Australia of a foreign bank.” The annual monitoring charge relates to monitoring the foreign bank’s representative office operations and the foreign bank’s “compliance with the conditions imposed on the consent pursuant to subsection 67(2) of the Banking Act.” Therefore, obligations under this instrument are materially linked to the Banking Act’s permissioning and supervision regime for representative offices of foreign banks. The definition of “foreign bank” is explicitly taken from s 5(1) of the Banking Act as a “foreign authorised deposit-taking institution (ADI),” and the Schedule notes that s 67 refers to foreign banks as “overseas banks.” That link defines who the instrument reaches and why the charges are levied.

Legislation Act 2003

• The instrument’s commencement is tied to registration under the Legislation Act 2003: it “commences on the date of registration on the Federal Register of Legislative Instruments under the Legislation Act 2003.” Therefore, its legal operation is conditioned on the registration regime applicable to legislative instruments, rather than an immediate date specified in the instrument itself.

GST Act

• The Schedule states that “Each of the charges is GST exempt (see Note 1 below)” and references “Division 81 of A New Tax System (Goods and Services Tax) Act 1999.” That cross-reference governs the applicable tax treatment: the charges are not subject to GST. As a result, the instrument interacts with tax law by specifying GST-exempt status, which impacts how payers account for the fee in GST reporting and input tax credit calculations.

Administrative law and review

• The instrument grants APRA discretion to waive or refund fees in special circumstances but sets limits on refunds where applications are unsuccessful or withdrawn. Applicants aggrieved by APRA’s exercise or non‑exercise of that discretion may potentially have recourse to administrative law remedies (judicial review, merits review where available) under broader administrative law principles; however, this instrument does not itself set out review mechanisms or appeals clauses. Any challenge to APRA’s exercise of discretion would therefore engage general administrative law principles rather than the instrument’s text.

Contractual and accounting regimes

• The instrument’s fees will intersect with a foreign bank’s internal accounting, budgeting and contractual arrangements, including its accounts for establishment costs and ongoing supervisory fees. The GST exemption affects how the fee is recorded for tax and accounting. The instrument’s proration rules determine fiscal recognition in financial years.

Other APRA instruments and policies

• The instrument revokes Instrument Fixing Charges No. 2 of 2013 and replaces that prior schedule. It therefore updates APRA’s internal charging regime; any other APRA policies or instruments that reference the older instrument would need to be read in light of this replacement.

In summary, this instrument interacts directly with the APRA Act (authority to fix charges), the Banking Act (the permissioning and supervisory regime and the definition of foreign bank), the Legislation Act (commencement by registration), and the GST Act (tax treatment). It operates as a fee schedule embedded within those statutory frameworks and therefore must be read alongside the Banking Act and other APRA instruments to determine operational effect.

The instrument is concise and records a narrow amendment history within its own text.

Revocation of prior instrument

• The instrument expressly revokes “Instrument Fixing Charges No. 2 of 2013 made on 8 March 2013.” That is the single revocation action recorded. The delegate declares: “I … REVOKE Instrument Fixing Charges No. 2 of 2013 made on 8 March 2013; and … FIX the charges specified in the attached Schedule.” The 2018 instrument therefore replaces the earlier 2013 instrument as APRA’s applicable charging instrument for representative offices of foreign banks.

Date and signing

• The instrument is dated 7 June 2018 and signed by Stephen Matthews, Executive General Manager (Corporate Services), described as “a delegate of APRA.” The date and the identity of the delegate are recorded in the instrument as its certification.

Commencement

• The instrument’s commencement is conditional: it “commences on the date of registration on the Federal Register of Legislative Instruments under the Legislation Act 2003.” The instrument thus ties its operative start date to the registration process under the Legislation Act rather than specifying a fixed calendar date in the instrument text. The instrument does not state the registration date itself, only the commencement rule.

No subsequent amendments recorded in this text

• The instrument text provided contains no subsequent amending provisions, transitional rules beyond the pro‑rata statements in the Schedule, sunset clauses, or scheduled review dates. It contains standalone provisions and the Schedule. Any later amendments to these charges or to the charging regime would need to be made by a subsequent instrument or legislative change; none are recorded here.

Notes and references

• The Schedule includes notes that clarify GST status (Note 1: reference to Division 81 of the GST Act) and a specific clarification about repeat applications (Note 2: “For the avoidance of doubt, it should be noted that the charge is payable in respect of every new application, even one that is made after the refusal or withdrawal of an earlier application for which the applicant also paid a fee.”). These notes function as interpretive guidance rather than separate amending acts.

Practical implication of the amendment history

• Practitioners should treat this instrument as superseding the 2013 instrument for charges applicable to foreign banks’ representative offices. Any compliance procedures or fee provisions that referenced the 2013 instrument must be updated to reflect the 2018 instrument’s amounts, proration rules and waiver provisions. The instrument itself does not describe transitional arrangements for applications lodged before its commencement; absent transitional provisions, the operative fee at the time of lodgement would apply, and stakeholders should confirm the commencement date via the Federal Register of Legislative Instruments.

In short, the recorded amendment history is a single revocation and replacement of the 2013 charging instrument, signed and dated in June 2018, and commencing on registration under the Legislation Act 2003.

The instrument text contains no references to litigation, judicial decisions, or cases. It does not cite any judicial authority, nor does it record that these charges have been the subject of any court or tribunal proceedings. The instrument’s short scope , fixing specified charges and setting administrative waiver rules , is not accompanied by any litigious or precedent references in the provided text.

Implications of absence of litigation references

• Because there are no cases cited, the instrument does not rely on judicial interpretation for its terms as presented. Any legal challenges to APRA’s exercise of discretion under the instrument (for example, disputes about denial of a waiver or the reasonableness of a charge) would need to arise separately in administrative law forums or commercial litigation; however, no such matters are recorded in the instrument.

Potential litigation touch points (textually implied)

• Although no litigation history is recorded, the instrument creates areas where disputes could theoretically arise, should a party choose to litigate:
  • Denial of a waiver or refund: The instrument gives APRA discretion to waive or refund application fees in “special circumstances” and denies refunds where applications are unsuccessful or withdrawn. A rejected waiver application could become the subject of judicial review or administrative challenge to the extent administrative law remedies are available.
  • Interpretation of “special circumstances” and “substantial amount of work”: The Schedule gives an example where refund may be justified , an applicant withdraws before APRA has done “any substantial amount of work considering the application.” Disagreement about what constitutes “substantial” work could be a factual dispute if a refund application is refused.
  • Application of proration rules: The Schedule’s pro‑rata rules create potential disputes about timing of establishment or cessation of offices and whether the bank had an office at the beginning of a financial year.
  • Repeated application charges: Note 2 emphasises that the charge is payable for every new application, even after prior refusal or withdrawal. A bank that believes it has been unfairly required to pay again might seek administrative or judicial remedies, though the instrument’s text is clear on this point.

No recorded precedents in instrument

• The instrument does not list prior disputes about these charges or any administrative decisions that would constitute precedent. Practitioners seeking to understand how APRA applies its waiver discretion in practice would need to obtain APRA administrative decisions or seek case law separately; none is provided in this instrument.

Recommendation based on instrument text

• Because the instrument itself contains no litigation or interpretive history, a practitioner needing to advise on likely outcomes should treat the instrument’s clear text as the primary source and, where necessary, consult APRA’s administrative decisions, policy statements or external case law outside the instrument to see how APRA has exercised its discretion in practice. None of those materials are included in the instrument text provided.

The instrument contains several specific rules and phrasing that create operational pitfalls for foreign banks and their advisers. These are concrete risk points that flow directly from the Schedule’s wording.

Application fee payable on lodgement

• The $10,000 application fee is payable “On lodgement of the application.” That means an applicant cannot defer payment to a later stage; lodgement triggers a payable obligation. Practitioners should not assume that fees will be billed once work has begun; the Schedule makes the timing explicit. If an applicant lodges an application but fails to pay the $10,000, APRA may not proceed with processing; the instrument ties fee to lodgement.

No refund if application refused or found unsuccessful

• The Schedule provides that “No refund or waiver will be made if the application is unsuccessful or if APRA, in the course of processing the application, informs the applicant that the application will be unsuccessful or if the application is withdrawn or not proceeded with by the applicant.” That wording is strict: even a voluntary withdrawal risks loss of the fee if APRA has processed to a point where it has informed the applicant of likely refusal. The Schedule’s example of a possible refund scenario is narrow and fact dependent.

Charge per new application

• Note 2 states: “For the avoidance of doubt, it should be noted that the charge is payable in respect of every new application, even one that is made after the refusal or withdrawal of an earlier application for which the applicant also paid a fee.” Practically, this means repeated applications incur repeated $10,000 fees unless APRA exercises discretion. Applicants should budget for multiple applications and not assume earlier fees offset later ones.

Proration asymmetry on cessation

• The pro‑rata rule applies when an office is established part way through a financial year: the monitoring charge “shall be pro-rated” so the foreign bank pays only for the portion of the financial year after establishment. However, the Schedule has an asymmetry: “the charge for a financial year shall not be pro-rated where the foreign bank ceases to have any representative offices in Australia before the end of the financial year.” This means that if a bank closes its offices before year end it may nevertheless owe the full $3,000 monitoring charge for that financial year. That is a cashflow and exit cost risk.

Single charge regardless of number of offices

• The monitoring charge is $3,000 “per financial year per foreign bank (regardless of the number of offices in Australia).” This is favourable to banks running multiple representative offices because the fee is entity-based rather than site-based. But it also means a foreign bank with one office receives no per‑office reduction. The Schedule does not distinguish by office scale or activity.

GST exempt but not refundable

• The charges are declared GST exempt. That means the fee is not subject to GST, but it does not create a GST credit; the instrument says the charges are GST exempt per Division 81 of the GST Act. Practitioners must not attempt to claim GST input credits on fees that are GST exempt.

Waiver process requires writing and justification

• APRA may waive or refund an application charge “if APRA is satisfied that special circumstances apply” and requires that “An applicant seeking a refund or waiver of an application fee must apply in writing to APRA setting out details of the special circumstances that apply.” There is no presumption of waiver. The burden on the applicant to justify special circumstances is explicit and procedural.

Central bank exception

• The Schedule states APRA “may waive” charges where the foreign bank is a central bank. That is discretionary, not automatic. Central banks should not assume a fee exemption absent APRA’s written waiver.

No enforcement penalties specified in instrument

• The instrument sets payment dates and invoicing but does not specify late-payment penalties, interest or enforcement steps. A failure to pay could result in administrative action by APRA (such as halting processing), but the instrument contains no explicit sanction. That leaves some uncertainty about APRA’s follow-up practices, which must be managed operationally.

No operational definitions of “substantial amount of work”

• The Schedule refers to refund being possible where the applicant withdraws “before APRA has done any substantial amount of work considering the application.” The instrument does not define “substantial amount of work,” so applicants face uncertainty about the cut‑off point for eligibility for a refund. That introduces a factual dispute risk if APRA and the applicant disagree.

Timing of invoice for annual charge

• APRA “may invoice” the annual monitoring charge at different times depending on circumstances. If a foreign bank has an office at the start of the financial year APRA may invoice at the beginning; if the office is established during the financial year APRA may invoice when the office is established. Applicants should monitor when APRA issues invoices to ensure prompt payment within 28 days.

These are practical pitfalls you must plan for: immediate payment obligation on lodgement; narrow refund exceptions; repeated fees for re‑applications; asymmetric proration rules on cessation; discretionary and procedural waiver pathway; and uncertainty over enforcement steps not specified in the instrument.

Compliance under this instrument requires attention to timing, documentation and budget planning. The Schedule sets concrete payment triggers and a discrete administrative route for seeking relief. Below are step‑by‑step compliance actions based on the instrument text.

1. Confirm status as a foreign bank under the Banking Act

• Before taking any step, confirm whether the entity is a “foreign authorised deposit-taking institution (ADI) as defined in Subsection 5(1) of the Banking Act 1959,” because the Schedule applies to that class. The instrument also references paragraph 67(1)(c) of the Banking Act for the consent needed to “establish or maintain an office in Australia of a foreign bank.” Ensure the entity’s status aligns with the instrument’s defined scope.

2. Prepare to pay the application fee on lodgement

• The Schedule imposes a $10,000 application charge that is payable “On lodgement of the application.” Ensure payment mechanisms are in place so the fee is paid at lodgement. Do not assume deferred billing. Budget and clear payment authorisation in advance to avoid processing delays.

3. Budget the annual monitoring charge per foreign bank

• For each foreign bank that has a representative office in Australia, budget $3,000 per financial year. The Schedule states the annual monitoring charge applies “per foreign bank (regardless of the number of offices in Australia),” so one charge will apply per legal entity even if multiple offices exist.

4. Account for proration rules on establishment and cessation

• If establishing an office part way through the financial year, expect a pro‑rata calculation so that the monitoring charge covers only the portion of the year after establishment. If ceasing to have any representative offices before year end, note the Schedule’s asymmetry: “the charge for a financial year shall not be pro-rated” on cessation. Prepare for possible full-year liability in that scenario.

5. Monitor APRA invoicing and meet payment deadlines

• APRA may invoice at the beginning of the financial year or at the time an office is established. Payment of the annual monitoring charge is due “Twenty-eight days after receipt of APRA’s invoice for the charge.” Track invoice receipt and ensure payment within 28 days to meet the Schedule’s payment timing.

6. Preserve documentation for any waiver/refund application

• If exceptional circumstances exist that might justify a waiver or refund of an application fee, prepare a written application to APRA “setting out details of the special circumstances that apply.” The Schedule notes that waivers may be granted where continuing to charge would be “unjust or oppressive,” and gives as an example a mistaken application withdrawn before APRA has done “any substantial amount of work.” Provide clear supporting facts and timelines to support the claim.

7. Do not expect refunds after substantive processing or refusal

• The Schedule states clearly that “No refund or waiver will be made if the application is unsuccessful or if APRA, in the course of processing the application, informs the applicant that the application will be unsuccessful or if the application is withdrawn or not proceeded with by the applicant.” If you anticipate a likely refusal or if you plan to withdraw after APRA has done substantial work, do not expect a refund.

8. If a repeat application is necessary, budget accordingly

• Note 2 specifies that a charge applies “in respect of every new application, even one that is made after the refusal or withdrawal of an earlier application for which the applicant also paid a fee.” Repeated applications require additional $10,000 fees unless APRA exercises its waiver discretion.

9. Consider whether the entity is a central bank

• If the foreign bank is a central bank, prepare an application or correspondence with APRA to seek the discretionary waiver the Schedule allows. The Schedule states charges “may be waived by APRA where the foreign bank is a central bank.” Obtain written confirmation from APRA if a waiver is granted.

10. Treat the charges as GST exempt for accounting

• The Schedule states “Each of the charges is GST exempt (see Note 1 below).” Record the fees as GST exempt in accounting and tax records in line with Division 81 of the GST Act.

11. Keep copies of the instrument and the revocation

• The instrument revokes the previous 2013 instrument. Keep a copy of the current instrument and confirm the commencement date via the Federal Register of Legislative Instruments to establish which charging regime applies to any application lodged near the transition.

12. Prepare for administrative follow-up rather than criminal enforcement

• The instrument does not specify late-payment penalties or criminal sanctions. Nonetheless, ensure prompt payment to avoid administrative consequences, such as suspension of processing. If in doubt about APRA’s likely follow-up for non-payment, seek clarification from APRA.

13. Maintain records on APRA’s processing work

• If you may seek a refund on the basis that APRA did not undertake “any substantial amount of work,” maintain contemporaneous records showing dates of lodgement, communications and any APRA actions to evidence the claim.

Following these steps will align lodgement, payment and any waiver requests with the specific rules and timings in the Schedule.

(This heading duplicates the earlier "Amendment history" requirement in the output format. The instrument text contains a single clear amendment action and no subsequent amendments. The following restates the instrument's recorded amendment facts and highlights transitional and procedural implications, because the instrument itself is short and contains no further amendatory material.)

Recorded amendment: revocation and replacement

• The instrument explicitly revokes Instrument Fixing Charges No. 2 of 2013 (made on 8 March 2013) and fixes the charges set out in the Schedule. The text records that the delegate “REVOKE Instrument Fixing Charges No. 2 of 2013 made on 8 March 2013; and … FIX the charges specified in the attached Schedule.” That is the single, recorded amendment action and it replaces the earlier instrument’s charging regime for representative offices of foreign banks.

Commencement linkage to registration

• The instrument “commences on the date of registration on the Federal Register of Legislative Instruments under the Legislation Act 2003.” Therefore, operationally the new charges apply from the date of registration and not necessarily the date of signature (dated 7 June 2018). Any transitional questions about applications lodged around the signature date are resolved by reference to registration date: the legal operation of the instrument awaits registration.

No transitional provisions in the instrument

• The instrument contains no express transitional provisions for applications lodged but not finally determined prior to commencement. Because the instrument sets the application fee to be payable “On lodgement,” an application lodged before commencement might have been governed by the prior instrument; an application lodged on or after registration will be governed by this instrument. Practitioners should check the registration date on the Federal Register to determine which instrument applied at the relevant lodgement time.

No further amendments or expiry

• The instrument contains no expiry clause, periodic review requirement or schedule of subsequent amendments. Any later change to the fees, proration rules, refund or waiver conditions would require a new instrument or legislative amendment; none are recorded in the provided text.

Notes retained from the Schedule

• The Schedule contains two notes: Note 1 confirms GST exemption citing Division 81 of the GST Act; Note 2 clarifies that the charge is payable for every new application even after refusal or withdrawal of an earlier application for which a fee was paid. These notes survive as interpretive aids in the new instrument.

Administrative implication

• The revocation of the 2013 instrument and the fixing of this Schedule mean APRA’s administrative systems and fee schedules should be updated to reflect the $10,000 application fee, the $3,000 annual monitoring fee, the proration rules and the waiver/refund procedures contained in this instrument. The instrument itself does not set out the internal administrative steps APRA will take to migrate from the 2013 regime to the 2018 regime.

In short, the instrument’s amendment history is a single revocation-and-replacement of the 2013 charging instrument, commencement upon registration under the Legislation Act, and no further amendments recorded in the text provided.

(The instrument contains no litigation references. This section restates that absence and outlines potential areas where litigation or administrative review might arise based purely on the instrument’s wording.)

No cases or proceedings cited in instrument

• The instrument as provided contains no citations to judicial decisions, tribunal rulings or prior litigation. It does not record any proceedings in which the charges or APRA’s billing approach were challenged.

Potential administrative law disputes raised by the instrument’s terms

• The instrument creates several factual and discretionary areas that could give rise to litigation or administrative review although none are recorded in the text:
  • Denial of waiver or refund: APRA’s discretion to refuse refunds and to grant waivers only in special circumstances could be the subject of judicial review if an applicant alleges unreasonable, irrational or procedurally unfair decision-making.
  • Definition of “substantial amount of work”: The Schedule’s example of a refund where an applicant withdraws “before APRA has done any substantial amount of work considering the application” could be contested if APRA and the applicant disagree on whether substantial work was undertaken.
  • Proration disputes: Whether a foreign bank “has an office in Australia at the beginning of the financial year” or has “ceased to have any representative offices” may involve contested factual determinations about opening and closing dates and continuity of presence.
  • Repeated fees: The clear statement in Note 2 that a fee is payable for each new application reduces dispute risk, but a bank might challenge APRA’s interpretation of what constitutes the “same” application versus a “new” application if APRA seeks multiple fees for closely related filings.

No reported litigation history in the instrument

• Because the instrument includes no litigation history, practitioners should not rely on this instrument alone to predict how APRA will exercise discretion in practice or how courts have interpreted similar charging instruments. To determine how APRA has actually exercised its waiver powers or how courts have treated comparable fee-setting instruments, one would need to research APRA administrative decisions and case law outside the instrument; that material is not present in the text supplied.

Administrative remedies and evidence

• Any party seeking to challenge an APRA decision under this instrument would likely need to rely on general administrative law remedies and supply contemporaneous documentation (e.g., emails showing APRA did not undertake substantial work) to support a refund claim or a judicial review application. The instrument does not create a special internal appeal mechanism.

Summary

• The instrument contains no litigation record. The terms do create predictable areas for potential administrative disputes (waiver refusals, proration, definition of work done), but the instrument text alone records no litigation outcomes or precedents.

The instrument’s precise wording creates a set of high‑value operational risks and interpretive traps. These are the practical “gotchas” derived from the Schedule.

1. Pay on lodgement

• The $10,000 application fee is payable “On lodgement of the application.” Do not assume APRA will accept an application without payment. Failure to pay on lodgement can interrupt processing and leave applicants out of time-sensitive opportunities.

2. No refund after substantial processing or refusal

• If APRA has done “any substantial amount of work” or has informed the applicant that the application will be unsuccessful, the Schedule disallows refunds. Applicants cannot rely on a refund if they withdraw after significant processing has occurred.

3. Repeat fees apply

• Note 2 explicitly states the fee is payable “in respect of every new application, even one that is made after the refusal or withdrawal of an earlier application for which the applicant also paid a fee.” Re‑filings therefore incur repeated $10,000 costs unless a waiver is granted.

4. Asymmetric proration on exit

• Pro‑rata applies on mid‑year entry but not on mid‑year exit: if a foreign bank “ceases to have any representative offices in Australia before the end of the financial year,” the monitoring charge “shall not be pro-rated.” Closure during a financial year can therefore leave the foreign bank liable for the full $3,000 monitoring charge for that year.

5. Single entity charge regardless of scale

• The $3,000 monitoring charge is levied “per foreign bank (regardless of the number of offices in Australia).” Banks with multiple offices receive a per‑entity charge rather than multiple per‑site charges; conversely, small operations pay the same annual charge.

6. GST-exempt status is explicit, not optional

• The Schedule states each charge is GST exempt (citing Division 81 of the GST Act). Accountants should not treat the fees as GST-inclusive or seek input tax credits where they are not available.

7. Waivers are discretionary and procedural

• A waiver or refund requires a written application “setting out details of the special circumstances.” The Schedule gives an example (wrong authorisation applied for and withdrawn before APRA did substantial work) but does not mandate relief. The burden is on the applicant to present persuasive evidence.

8. Central bank waiver is discretionary

• Central bank status alone does not automatically remove fees; APRA “may waive” charges where the foreign bank is a central bank. Expect to request and secure written confirmation.

9. No specified late-payment penalties in instrument

• The Schedule requires payment within 28 days of invoice but does not specify interest or penalties for late payment in this text. This creates uncertainty about APRA’s enforcement steps for overdue invoices; however, non-payment may result in practical consequences such as suspension of processing or follow-up billing.

10. Unclear definition of “substantial amount of work”

• The example that permits a refund if APRA has not done “any substantial amount of work” is fact-dependent and undefined. Applicants should maintain detailed records of their interactions with APRA to support any refund claim.

These are direct operational risks embedded in the instrument text. Practitioners should advise clients to assume the instrument’s strict rules will be applied unless APRA gives clear written relief.

This section provides a checklist and practical compliance measures tailored to the instrument’s specific requirements.

Pre-application

• Confirm status: Verify the entity is a “foreign authorised deposit-taking institution (ADI)” under s 5(1) of the Banking Act 1959 and that APRA consent is required under paragraph 67(1)(c) of the Banking Act for the intended representative office activity.
• Budget and funding: Ensure funds are available to pay the $10,000 application fee immediately “On lodgement of the application.” Set aside $3,000 per financial year for the monitoring charge per foreign bank.

Application lodgement

• Pay at lodgement: Arrange payment so the $10,000 fee accompanies the application. Retain proof of payment and lodgement timestamp to evidence compliance.
• Documentation: Keep a copy of the instrument and the Schedule for records and for reference in any waiver/refund application.

If the office will be established part way through a financial year

• Expect pro‑rata monitoring charge: The Schedule says the charge “shall be pro-rated” in that case. Confirm with APRA how pro‑rata will be calculated and document the establishment date to support the calculation.

If the office is closing

• Anticipate full-year charge: The Schedule states the monitoring charge “shall not be pro-rated” if the bank ceases to have representative offices before year end. Prepare for potential full‑year liability and obtain written confirmation from APRA regarding any pro‑rata treatment if you believe an exception applies.

Payment timing

• Pay annual charge within 28 days: Monitor APRA invoices and ensure payment of the annual monitoring charge within 28 days of receipt.
• Invoice timing: Understand that APRA may invoice at the beginning of the financial year or upon establishment during the year; plan cashflow accordingly.

Seeking waiver or refund

• Prepare a written application: If seeking a waiver or refund of the application fee, submit a written application to APRA setting out the “special circumstances” with documentary evidence.
• Timing: Apply for a waiver promptly, especially if withdrawal is contemplated; the Schedule disallows refunds where APRA has already indicated an application will be unsuccessful or has done substantial processing.
• Evidence: If relying on the example in the Schedule (applicant applied for wrong authorisation and withdrew before APRA did substantial work), provide contemporaneous communications and dates to support the claim.

Central banks

• Request waiver in writing: If the foreign bank is a central bank, apply in writing to APRA to seek the discretionary waiver the Schedule contemplates. Obtain explicit written confirmation if a waiver is granted.

Accounting and tax

• GST-exempt accounting: Treat the charges as GST exempt in accounting and tax reporting, as the Schedule cites Division 81 of the GST Act. Do not claim GST input credits for these fees.

Record-keeping

• Maintain detailed logs: Keep records of application lodgement dates, payments, APRA invoices, communications and any APRA work performed. These are essential if a dispute arises about whether APRA did “any substantial amount of work” and for supporting waiver/refund claims.

Budgeting for repeated applications

• Anticipate repeat fees: If a re-submission is possible, plan for an additional $10,000 fee per new application, in line with Note 2.

Monitor APRA communications

• Watch for APRA notifications about the application’s prospects; the Schedule disallows refunds if APRA “in the course of processing the application, informs the applicant that the application will be unsuccessful.” Early communication can affect refund eligibility.

Confirm commencement date

• Check the Federal Register: Because the instrument “commences on the date of registration on the Federal Register of Legislative Instruments,” confirm the registration date to determine whether the 2018 instrument applies to a particular lodgement.

Administrative follow-up

• Establish internal owners: Assign responsibility within