Australian Prudential Regulation Authority instrument fixing charges No. 6 of 2018

The instrument rests on a small set of statutory and practical concepts that determine its scope and operation.

Statutory source of power: The delegate expressly acts "under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998" to fix the charges. The instrument therefore is an exercise of APRA’s charging/fixing power as delegated. The instrument does not reproduce paragraph 51(1)(a) and (b), but it identifies that power as the legal basis for fixing the Schedule amounts.

Defined terms and cross-reference: The instrument contains an "Interpretation" segment stating that "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959," and that "APRA means the Australian Prudential Regulation Authority." That cross-reference anchors who counts as an ADI to the Banking Act definition (s 5), rather than to any ad hoc description inside the instrument.

Subject matter of the charges: The Schedule describes the nature of the services for which APRA imposes the charge as "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." That phrasing identifies both types of activity covered (assessment of applications and ongoing supervision) and the regulatory approach (models-based approach to capital adequacy).

Fixed, lump-sum fees: The Schedule sets fixed dollar amounts rather than formulas or rates tied to variables such as assets, capital, or time. Two discrete monetary amounts appear in the Schedule: $305,800 (inclusive of GST) and $123,200 (inclusive of GST). Each charge is expressly non-refundable.

Named payers: The Schedule specifies particular legal entities as the persons required to pay each charge. The $305,800 amount is allocated to a list including five named ADIs. The $123,200 amount is allocated to a list of three named ADIs. The instrument therefore imposes liability on particular legal entities named in the Schedule rather than on an entire class in unspecified fashion.

Timing and billing logistics: The timing mechanism for payment is set: "14 days after receipt of APRA’s invoice for the charge." The Schedule adds that "The invoice may be issued at any time after the date of this instrument," which leaves the date of APRA’s invoice issuance within the agency’s discretion subject to this instrument.

GST treatment and refund status: The Schedule explicitly states that each amount is "inclusive of GST" and that "This charge is non-refundable." Those two express statements fix tax treatment for the amount as shown and establish the non-refundable nature of the payment.

Commencement and formalities: The instrument states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." The instrument is dated 20 June 2018 and bears the signature of the APRA delegate.

Collectively, these concepts establish a targeted, instrument-specific charging mechanism: particular ADIs are required to pay specified GST-inclusive, non-refundable lump sums to APRA for defined models-based assessment and supervision services, with APRA controlling invoice timing and payment required within 14 days of invoice.

The instrument identifies directly affected parties by naming specific authorised deposit-taking institutions required to pay the fixed charges in the Schedule. The named entities for the higher tier ($305,800 inclusive of GST) are: Australia and New Zealand Banking Group Limited; Commonwealth Bank of Australia; National Australia Bank Limited; Westpac Banking Corporation; and Macquarie Bank Limited. The named entities for the lower tier ($123,200 inclusive of GST) are: ING Bank (Australia) Limited; Bendigo and Adelaide Bank Limited; and Suncorp-Metway Limited. These specific legal persons are the ones "required to pay the charge" as set out in Column 3 of the Schedule.

Broader class definitions are not used in the Schedule itself; however, the instrument’s Interpretation clause cross-references the Banking Act 1959 definition of ADI (section 5). That cross-reference means the term "ADI" in the instrument is to be understood by reference to the statutory definition. Despite that definitional cross-reference, the Schedule operates by naming particular ADIs rather than charging all ADIs generically: the Schedule lists eight named entities and assigns each one of them a fixed dollar amount. The instrument does not state that unlisted ADIs must pay anything under this instrument.

APRA, as the charging agency, is the recipient of the charges and the issuer of invoices. The instrument identifies APRA as the body providing the specified services and thus receiving the charges. The delegate signing the instrument (Stephen Brian Matthews) is the APRA officer who fixed the charges on APRA's behalf under the cited power.

Other persons who may be indirectly affected include the legal and compliance teams of the named ADIs (because they must process the invoices and arrange payment within the 14-day timeframe), and any internal budgetary controllers in those ADIs who must account for a non-refundable, GST-inclusive fixed fee for models-based assessment and supervision for the 2017-18 year. The instrument does not create obligations for counterparties, depositors, or third parties; it does not purport to change the regulatory status of the ADIs concerned,rather it fixes the monetary charge for a specified supervisory activity.

Finally, the instrument’s commencement mechanism (registration under the Legislation Act 2003) and its citation of the APRA Act and the Banking Act link it to administrators, legislative drafters, and registers: those maintaining legal databases and registers will be affected in the sense that the instrument will appear on the Federal Register of Legislation from its registration date.

The instrument creates a narrow set of duties and identifies limited rights connected to payment, timing and the nature of the charge.

Duty to pay specified charge: For each named ADI, the instrument imposes a defined duty to pay the precise monetary amount listed against it in the Schedule. That duty is absolute on the face of the instrument: the Schedule lists each ADI in Column 3 and a corresponding amount in Column 2, labelled "Amount of the charge." The Schedule describes the charge as non-refundable. The duty to pay is therefore a fixed monetary obligation owed to APRA for the specified services.

Timing duty: The Schedule sets a clear payment timing rule: payment must be made "14 days after receipt of APRA’s invoice for the charge." That creates a short payment window following APRA’s billing. The Schedule also provides APRA with flexibility in billing timing by stating "The invoice may be issued at any time after the date of this instrument." The instrument thus places on the payer the duty to be prepared to pay within 14 days of APRA invoicing, while APRA retains discretion on when to deliver the invoice (any time after registration).

Duty subject-matter: The charge is imposed "in respect of" APRA’s "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The duty to pay is therefore tied to a defined scope of services (assessment of applications and ongoing supervision, models-based approach). The Schedule does not create duties beyond payment for those services.

Tax representation: The amounts are stated to be "inclusive of GST." That representation performs two functions on its face: it fixes the amount to include goods and services tax (as presented) and signals that payers should treat the invoiced amount as GST-inclusive. The instrument does not, however, set out GST accounting rules or specify whether APRA will issue tax invoices; it simply states the amounts are inclusive of GST.

Non-refundability: The Schedule expressly states "This charge is non-refundable." That allocates the financial risk of service cancellation, reduction, or other contingencies on the payers rather than on APRA, insofar as the Schedule governs.

Rights and omissions: The instrument confers no express rights of challenge, refund, set-off, or administrative review within its text. It also contains no express right to defer payment beyond the 14-day window, nor does it state instalment or pro-rata options. The instrument likewise does not specify consequences for failure to pay within 14 days. Any rights or remedies not in the instrument are therefore outside its text and would need to be sought in other applicable law or administrative practice.

Administrative acts: APRA has the right, as expressed indirectly by the Schedule, to issue the invoice at "any time after the date of this instrument." APRA therefore controls timing of billing, and the named ADIs have the duty to pay once APRA exercises that right to invoice.

In summary, the instrument creates a concrete duty on specific named ADIs to pay fixed, GST-inclusive, non-refundable amounts to APRA in respect of models-based assessment and supervision, payable within 14 days of APRA’s invoice; APRA retains the invoicing timing discretion. The instrument does not create express procedural rights within its text such as refund rights, challenge mechanisms, or specified enforcement steps.

The text of this instrument contains no express penalty provisions, sanctions, or enforcement mechanisms. The Schedule sets the liability (fixed amount) and the payment timing (14 days after receipt of APRA’s invoice), and states that the charge is non-refundable and inclusive of GST, but it does not describe what happens if a named ADI fails to pay within the 14-day window.

Because the instrument does not set out enforcement measures, no internal enforcement mechanism (for example, a statutory interest regime, late payment penalty, or suspension of services) is specified within the text of the instrument itself. The instrument also does not specify whether APRA may withdraw services, commence debt recovery, apply administrative sanctions, or seek judicial enforcement in the event of non-payment. Those consequences, if they exist, would need to be found in other statutory provisions, APRA’s administrative practice, or general civil remedies for debt; they are not contained or described in this instrument.

The Schedule provides that the invoice may be issued at any time after the date of the instrument, which gives APRA discretion over billing timing. The instrument therefore creates a payment obligation that is triggered by APRA's administrative act of issuing an invoice, but it leaves the subsequent relationship between a late/non-payment and enforcement unspecified in the instrument's text.

Users relying solely on this instrument should note the absence of express enforcement language: the instrument fixes charges, identifies payers and billing mechanics, and states non-refundability and GST treatment, but it is silent on penalties, interest, debt recovery procedures, or other enforcement tools. Any enforcement path would have to be sought in the APRA Act, other relevant legislation, or APRA’s operational procedures; those sources are not reproduced or described in this instrument.

Therefore, the instrument creates a clear monetary obligation and a short payment window without specifying the remedial regime for non-compliance. That omission means that, on the instrument’s face, parties must look beyond this instrument for a statement of enforcement options and penalties.

The instrument expressly interacts with at least three statutory entry points by textual reference, and it implies further relations through the substance of its charges.

APRA Act 1998: The instrument is an exercise of a power under the Australian Prudential Regulation Authority Act 1998. It states it is made "under paragraph 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998." The instrument does not reproduce paragraph 51(1)(a) and (b) but identifies that provision as the delegated statutory basis for fixing charges. That cross-reference places the instrument squarely within the regulatory architecture established by the APRA Act; any assessment of the instrument’s validity or contestation would have to examine the textual scope of paragraph 51(1)(a) and (b) in the APRA Act.

Banking Act 1959: The instrument’s Interpretation clause states "ADI is short for authorised deposit-taking institution and has the meaning given in section 5 of the Banking Act 1959." By doing so, the instrument imports the Banking Act’s definition of ADI for the term used in the Schedule. The Schedule, however, names specific entities. The cross-reference ensures that the term "ADI" has the statutory meaning relevant to banking regulatory classification, but the charging obligation is attached to named entities rather than to the class generically.

Legislation Act 2003 (Federal Register and commencement): The instrument stipulates that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." That ties the instrument’s operative commencement to the administrative mechanism of registration governed by the Legislation Act. Practically, registration under the Legislation Act is the act that brings the instrument into legal force.

GST and taxation: The Schedule explicitly states that the amounts are "inclusive of GST." While the instrument does not engage with the tax code or specify issuing of tax invoices, the express inclusion of GST signals that the amounts shown are gross figures that incorporate goods and services tax to the extent applicable. How GST is accounted for, reclaimed, or reported by either APRA or the payers would be governed by the tax law rather than by this instrument; the instrument’s role is limited to stating the GST-inclusive presentation.

Interface with APRA’s supervisory framework: The Schedule charges are for "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." The instrument therefore sits as a funding mechanism for a specific supervisory approach within APRA’s broader prudential regime. The instrument does not purport to alter substantive prudential requirements; it instead fixes prices for regulatory services tied to a particular approach. Any interaction with prudential rules, capital adequacy requirements, or supervisory decisions would occur through APRA’s regulatory instruments and supervisory actions; this charging instrument interacts with those regimes by levying fees for the assessment and ongoing supervision relating to the models-based capital adequacy approach.

Absence of cross-referenced enforcement wording: Unlike some statutory instruments that include enforcement or penalty clauses or cross-reference collection procedures, this instrument is silent as to enforcement and debt recovery. Consequently, the instrument’s interaction with debt recovery law, administrative law remedies, or APRA’s enforcement functions is implicit rather than explicit and would need to be traced to other sources for a full picture.

In sum, the instrument explicitly invokes the APRA Act as the power source, imports the Banking Act’s ADI definition, and ties commencement to the Legislation Act’s registration process. It states GST treatment for the amounts and situates the charges within APRA’s models-based supervisory activity, but it does not itself provide GST accounting rules, enforcement mechanics, or substantive prudential rule changes.

The instrument as provided contains its original text, date and signature, and does not record any amendments, revocations, or prior instruments purporting to modify it. The text shows the instrument was "Dated: 20 June 2018" and signed by Stephen Brian Matthews, Executive General Manager. It also states that it "commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003." No subsequent amendment clauses, amending instruments, or dates of amendment are included in the document provided.

Because the instrument ties commencement to registration under the Legislation Act 2003, the effective date of operation depends on that registration event. The instrument itself does not include transitional provisions, savings clauses, or sunset clauses. It does not state that it replaces, alters or continues any prior charging instrument.

For a complete legislative history beyond what is in this instrument’s text, one would need to consult the Federal Register of Legislation for the registration details (date of registration), any later instruments that vary charges under the APRA Act, and any legislative amendments to the APRA Act or related statutes that might affect the power to fix charges. Those sources are not reproduced in the instrument and therefore are not part of the document’s amendment history as provided here.

The Schedule is tailored to the financial year 2017-18 as signalled by the instrument’s title ("Models-based capital adequacy requirements for ADIs for the financial year 2017-18"), which suggests temporal specificity. However, the instrument text itself does not include an explicit expiry date, automatic review provisions, or an express statement that the instrument is limited to that financial year; the heading and Schedule imply the targeted year but the operative clause is limited to commencement upon registration. No amendment record or subsequent modification is contained in the instrument’s body.

Therefore, the instrument’s internal amendment history is empty: the provided document contains the original fixing, dated 20 June 2018, and no recorded amendments or modifications appear in the text.

The instrument’s text does not reference any litigation, judicial determination, or dispute related to these charges. There are no case citations, no recorded challenges, and no references to judicial review proceedings within the instrument. The document itself is an administrative charging instrument and contains no discussion of prior litigation or pending court actions.

As the instrument contains no litigation history or references to legal proceedings, any actual litigation that may have arisen after the instrument’s registration or in relation to the charges would not be captured in the instrument’s text. The instrument does not create or reproduce any administrative appeal or review mechanism for the charges, nor does it indicate that APRA’s invoice or demand is subject to an internal appeal within the instrument itself.

To discover whether the instrument or the charges fixed by it have been subject to judicial review, statutory challenge, or other litigation, one would need to consult court records, legal databases, or administrative tribunal files beyond the instrument’s text. Those materials are not part of the document under review and therefore not reported here.

In summary, the instrument contains no internal record of litigation and does not assert any adjudicatory history. The absence of recorded litigation or challenge inside the instrument means that the instrument’s text does not illuminate whether disputes occurred or how they were resolved.

The instrument contains several features that create practical risks, timing uncertainty, and discrete compliance traps that affected persons should note.

Named and narrow liability: The Schedule names specific ADIs and fixes a single lump-sum amount against each named entity. If an entity is omitted from the Schedule, the instrument itself does not impose a charge on it. Conversely, if an entity named in the Schedule is a subsidiary or has multiple legal entities under similar trading names, the instrument fixes liability on the named legal entity only. Because the instrument references the Banking Act definition of ADI, there is potential mismatch risk if a listed trading name does not align precisely with the legal entity name on which APRA intends to invoice; payers should verify that the name in Column 3 corresponds to their legal entity to avoid disputes about the invoicing target.

GST-inclusive presentation: The Schedule states both amounts are "inclusive of GST." The instrument does not detail whether APRA will issue a tax invoice, whether GST registrants among the payers may claim input tax credits, or how the GST component is accounted for. Payers need to treat the amounts as gross and address GST accounting within their own tax procedures. Failure to align internal GST treatment with the invoice presentation could cause internal reconciliation issues.

Non-refundable: The Schedule states "This charge is non-refundable." That means once paid, the payer cannot recover the charge through the instrument’s own refund mechanism even if, for example, the application assessment is withdrawn or the supervision regime changes. The instrument does not contemplate partial refunds, credits, or pro-rata adjustments.

Invoice timing and short payment window: The instrument gives APRA discretion to "issue" the invoice "at any time after the date of this instrument." APRA may therefore choose the invoice date. Once the invoice is received, the payer has 14 days to pay. That combination creates two practical risks: first, uncertainty about when the invoice will arrive; second, a brief 14-day payment period which may be shorter than some institutional payment cycles, requiring payers to be prepared to process and pay quickly.

Lack of specified enforcement mechanism: The instrument does not state consequences for non-payment. From a payer’s practical point of view, this absence creates uncertainty: non-payment may attract interest, administrative enforcement, or other remedies found elsewhere, but the instrument does not identify them. Payors should therefore assume that failure to pay within 14 days will be treated as a breach of the instrument’s terms and may be addressed through other statutory or contractual means beyond the instrument.

Scope tied to "models-based approach": The charge is for "Assessment of applications and the ongoing supervision of ADIs under the models-based approach." Entities should check whether APRA’s supervisory approach applied to them is indeed models-based for the 2017-18 year and whether the exact activities APRA undertakes fall within the label used in the Schedule. The instrument does not define "models-based approach" inside its text.

Single-year heading with no expiry provisions: The title references the 2017-18 financial year, but the operative text does not include explicit duration, expiry, or a clause stating it is limited strictly to that financial year. The absence of an express expiry clause could create ambiguity about whether APRA could seek to invoice for a later year under the same instrument; however, the Schedule’s heading and context indicate the charges relate to that financial year. Clarify registration date and invoice timing to avoid misunderstanding.

Names and corporate groupings: The Schedule lists major institutional names. Where corporate groups contain multiple ADI legal entities, the instrument’s applicability will depend on the precise legal entity listed. Payers must confirm they are the exact legal entities named and that APRA’s invoice references the same legal entity.

No internal dispute procedure: The instrument is silent on internal dispute resolution or administrative review tied to the charge. If a named ADI contests the charge or the invoiced amount, the instrument does not set out a mechanism for staying payment while the dispute is resolved.

These are procedural and drafting features that create operational and legal friction points for payers and for APRA. They are directly observable in the instrument’s text and should be dealt with in practice by confirming entity names, setting aside the amounts for payment, preparing for the short payment window, and aligning GST accounting.

Complying with this instrument, on its face, requires a narrow set of administrative steps anchored to the Schedule’s express terms. The following practical checklist derives from the instrument text and the Schedule.

1. Confirm whether your legal entity is named in Column 3 of the Schedule. The Schedule lists specific entities. If your entity is among those listed (for example, ANZ, CBA, NAB, Westpac, Macquarie, ING Bank (Australia) Limited, Bendigo and Adelaide Bank Limited, or Suncorp-Metway Limited), this instrument fixes a charge against that legal entity. If your entity is not named, the instrument does not, on its face, require payment by that entity.

2. Verify the exact legal entity name used by APRA in the Schedule. Match your corporate registry name to the Schedule entry to ensure the obligation targets your entity precisely. The instrument ties liability to the named person in Column 3, so discrepancies in name or entity may complicate invoicing and payment.

3. Budget for the fixed amount shown in Column 2. The amounts are fixed and expressed "inclusive of GST": $305,800 for the higher tier entities and $123,200 for the lower tier entities. These figures are non-refundable per the Schedule. Incorporate the full GST-inclusive figure into your payable accruals and cashflow planning.

4. Be prepared for APRA’s invoicing timing. The Schedule states "The invoice may be issued at any time after the date of this instrument." APRA controls when it issues the invoice. Ensure accounts payable and credit control functions can process and pay the invoice within 14 days of receipt, as required by the Schedule.

5. Pay within 14 days of receipt of APRA’s invoice. The Schedule sets the payment deadline as "14 days after receipt of APRA’s invoice for the charge." Failure to pay on time may have consequences outside this instrument (the instrument is silent on enforcement), so prompt payment within the 14-day window is the direct compliance obligation presented here.

6. Treat the charge as non-refundable. The Schedule states "This charge is non-refundable." Do not expect an automatic refund if circumstances change after payment. If you consider there are grounds for refund or adjustment, those claims will need to be pursued outside the instrument (the instrument contains no refund mechanism).

7. Align GST accounting internally. The amounts are expressed "inclusive of GST." Ensure internal tax and accounting teams record the invoice in line with their GST reporting and input tax credit procedures. The instrument does not specify APRA’s GST invoicing practice, so verify with APRA whether a tax invoice will be supplied.

8. Retain the instrument and the invoice as records of the statutory charging instrument and the payment obligation. The instrument commences on registration under the Legislation Act 2003; ensure you have or can obtain the registered instrument and any related APRA correspondence for audit and compliance records.

9. If there is uncertainty about the invoice or the charged amount, contact APRA promptly. The instrument gives APRA the right to issue the invoice; it does not describe dispute procedures. Practical compliance requires early engagement with APRA to clarify invoicing, entity naming, and GST details before the 14-day payment deadline expires.

10. Where internal controls require formal approval prior to payment (for example, board sign-off for material payments), ensure those processes are expedited to meet the 14-day deadline. The Schedule’s short payment window is a procedural constraint and should be considered in internal governance.

This instrument sets a limited number of precise obligations: be a named payer (or not), receive the invoice when APRA chooses to issue it, and pay the GST-inclusive, non-refundable fixed amount within 14 days. Following the checklist above will implement compliance as the instrument requires on its face. If there is any legal or factual dispute about applicability (for example, whether the entity named matches the legal entity or whether the supervisory activity falls within the "models-based approach"), those disputes are not resolved within this instrument and will require separate legal or administrative action.