Australian Prudential Regulation Authority instrument fixing charges No. 7 of 2018

The instrument is short and revolves around a few tightly defined concepts. The operative legal power is the delegate’s authority under paragraphs 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998 to fix charges; the instrument explicitly records that source of power. “Commencement” is governed by registration under the Legislation Act 2003; the instrument commences on the date of registration.

Key defined terms are stated in the Interpretation section. ADI is used as an abbreviation for “authorised deposit‑taking institution” and is given the meaning in section 5 of the Banking Act 1959. APRA means the Australian Prudential Regulation Authority. RBA means the Reserve Bank of Australia. The Schedule identifies the specific service for which the charge is imposed: review of applications made to APRA under Attachment A, paragraph 16 of Prudential Standard APS 210 - Liquidity (which itself is made under subsection 11AF(1) of the Banking Act 1959), and the “assessment and determination of appropriate size of Committed Liquidity Facility (CLF) sought by ADIs and offered by the RBA.”

The Schedule introduces a billing metric that is not a straightforward hourly rate but a banded flat fee structure tied to “the number of APRA days assessing CLF access applications is estimated to be.” The Schedule sets four discrete charge levels linked to ranges of APRA days: “10 or less” (fixed fee $11,000), “between 11 and 15” ($16,500), “between 16 and 30” ($33,000), and “between 31 and 80” ($88,000). Three footnotes appended to the Schedule qualify the amounts: they are inclusive of GST, the charge is per entity, and the charge is non‑refundable regardless of the approval outcome.

Two timing mechanics are explicit. First, the instrument’s subject refers to “Calendar Year 2017” in the title; second, the instrument itself is dated 20 June 2018 and “commences on the date of registration” on the Federal Register. The Schedule states that APRA’s invoice may be issued at any time after the instrument commences, and payment is due 14 days after receipt of APRA’s invoice.

Conceptually then, the instrument operationalises cost recovery from ADIs for a specific APRA supervisory task,CLF access assessment and sizing,via fixed, banded fees per entity that are inclusive of GST and non‑refundable, with APRA discretion implicated in how it estimates the number of “APRA days” that map to each fee band.

The instrument directly imposes liabilities on ADIs as defined in the Banking Act 1959. The Schedule’s Column 3 expressly says the charge is “Payable by ADIs” and footnote [2] states “Charge per entity.” Thus each separate ADI entity that makes an application (or whose application is the subject of APRA’s assessment under the described APS 210 provision) is the legal payer under this instrument.

The immediate beneficiaries of the instrument are APRA and, indirectly, the RBA insofar as APRA’s work under APS 210 relates to sizing CLFs that the RBA offers. The instrument funds APRA’s review and “assessment and determination of appropriate size of Committed Liquidity Facility” sought by ADIs and offered by the RBA. The Schedule thereby transfers the cost of that supervisory work onto the ADIs who require the supervisory decision.

The instrument’s scope, by reference to Attachment A, paragraph 16 of Prudential Standard APS 210 and subsection 11AF(1) of the Banking Act 1959, limits the affected universe to those ADIs that engage APRA in that particular process. Not every ADI will necessarily be affected in a given year; the instrument targets those that apply for CLF access or have APRA undertake CLF sizing assessments.

Because the charge is specified “per entity,” groups with multiple ADI entities will be charged on a per‑entity basis rather than a consolidated, group basis. Footnote [3] says the charge is “Non‑refundable and payable whether or not the ADI obtains approval,” which affects applicants facing unsuccessful outcomes, as the charge will be payable regardless of success.

The instrument does not specify any carve‑outs or exemptions for categories of ADIs (for example, small ADIs, new entrants, credit unions or building societies). The instrument is silent on reimbursement, remission, or appeal rights. The Schedule permits APRA to issue the invoice “at any time after this instrument commences,” which means affected ADIs should expect an invoice cycle determined by APRA’s administrative timing rather than by the timing of the underlying application alone.

In short, the payer is each applying ADI entity that is subject to APRA’s APS 210 CLF access and sizing assessment. The fee structure will directly affect those ADIs’ application costs; the instrument does not change substantive prudential eligibility requirements in APS 210, but it imposes an explicit cost for APRA’s decision‑making service.

The instrument imposes a narrow set of duties and establishes practical payment mechanics. The primary duties are those on ADIs: to pay the specified charge per entity, inclusive of GST, within 14 days after receipt of APRA’s invoice. The Schedule’s Column 4 unambiguously states “14 days after receipt of APRA’s invoice for the charge.” The Schedule also states that APRA’s invoice may be issued at any time after the instrument commences, so the ADI’s duty to pay can arise once APRA chooses to issue an invoice.

Charges are non‑refundable and payable irrespective of the outcome of the application. That status is stated in footnote [3]: “Non‑refundable and payable whether or not the ADI obtains approval.” That establishes that payment obligation is not conditional on a positive APRA decision.

The instrument defines the service for which the charge is imposed: “Review of applications made to APRA under Attachment A, paragraph 16 of Prudential Standard APS 210 - Liquidity... and assessment and determination of appropriate size of Committed Liquidity Facility (CLF) sought by ADIs and offered by the RBA.” That description limits the duty to pay to APRA’s performance of that specific function.

Rights are more limited in the instrument. The instrument gives APRA the charging power (exercised by the delegate), but it does not create procedural rights for payers within the text,there is no express right to a pre‑billing estimate, no right to a breakdown of APRA days, and no internal appeal or refund mechanism stated in the instrument. The Schedule’s reliance on an “estimated” number of APRA days to pick a fee band implies APRA will make an internal estimate; the instrument does not set rules for how that estimate is calculated or how an ADI may query it.

The instrument does not, within its text, specify enforcement mechanisms, rebates, offsets, or interactions with other fee recovery frameworks. It does not state whether failure to pay within 14 days triggers interest, administrative penalties, or referral to debt recovery. It likewise does not specify any obligation on APRA to give advance notice of which fee band will be applied before issuing the invoice; it simply permits APRA to invoice at any time after commencement.

Procedurally, therefore, the ADI’s duty is straightforward and immediate upon receiving an invoice: pay on time; the instrument creates no on‑its‑face avenue to withhold payment pending outcome or to claim a refund if the application is refused.

The instrument itself does not articulate penalties, interest, enforcement processes, or sanctions for non‑payment. Its operative text fixes charges and prescribes invoice timing and payment terms (14 days after receipt), but it does not state consequences for late payment or non‑payment. There is no provision within the instrument that creates or references a penalty regime, charging interest, recovery procedures or suspension of APRA services where payment is overdue.

Because the instrument is made under APRA’s charging power in paragraphs 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998, there may be other statutory or administrative mechanisms outside the instrument for APRA to recover debts or take action where statutory fees are unpaid, but those are not set out in this instrument. The instrument does not invoke or cross‑reference any specific enforcement sections of the APRA Act or other legislation in its text.

The Schedule does make the charge non‑refundable and payable whether or not an ADI obtains approval, which is a substantive limitation on the payer’s ability to avoid liability by contesting an outcome. However, the instrument is silent on dispute resolution mechanisms relating to the invoice itself: for instance, there is no stated process for an ADI to contest the fee band selection, to request a recalculation, or to seek remission.

Practically, the absence of express enforcement language in the instrument creates implementation uncertainty. A practitioner confronted with non‑payment will need to locate APRA’s broader administrative practice or the APRA Act’s general provisions to identify formal recovery tools. The instrument does not state whether APRA’s invoice will contain debt recovery warnings or whether unpaid charges will be recorded in any regulatory records. The instrument likewise does not state whether failure to pay affects the underlying APS 210 application or APRA’s processing of future applications.

In summary, the instrument defines the fee and payment timing but does not itself set out penalties or enforcement procedures for breaches of the payment obligation; those measures, if any, must be found elsewhere or arise from APRA’s ordinary administrative powers beyond the instrument’s text.

The instrument explicitly situates itself within several statutory and regulatory texts.

• APRA Act charging power. The delegate records the statutory source for fixing charges as “paragraphs 51(1)(a) and (b) of the Australian Prudential Regulation Authority Act 1998.” The instrument therefore stands as an exercise of APRA’s statutory charging authority under those provisions.

• Banking Act and APS 210. The Schedule describes the service charged as the “Review of applications made to APRA under Attachment A, paragraph 16 of Prudential Standard APS 210 - Liquidity made under subsection 11AF(1) of the Banking Act 1959.” That ties the instrument to the Banking Act’s delegation power under s 11AF(1) and to the content of Prudential Standard APS 210. The instrument does not amend APS 210 or the Banking Act; it charges for APRA’s assessment work done under those instruments.

• Legislation Act 2003. The instrument’s commencement is governed by the Legislation Act 2003: “This instrument commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003.” That anchors the timing of commencement to the administrative process for legislative instruments.

• GST. Footnote [1] in the Schedule specifies the amounts are “Inclusive of GST.” That places the fees within the tax framework; the figure APRA invoices will already include GST, which affects how ADIs account for the cost and any GST input tax credits they may claim under the tax law. The instrument does not otherwise address taxation treatment beyond that inclusive notation.

The instrument is specific in its subject matter,APRA’s assessment of CLF access and sizing under APS 210,and therefore interacts with prudential regulation and central bank operations. The Schedule’s description references the RBA’s Committed Liquidity Facility (CLF) as the instrument’s substantive focus: APRA assesses CLF access applications and the “appropriate size” of CLF sought by ADIs and “offered by the RBA.” The instrument thereby sits at the intersection of APRA supervisory duties (prudential standard implementation), Banking Act delegated powers, and the operational arrangements by which the RBA provides liquidity under the CLF.

Notably, the instrument does not itself change APS 210, the Banking Act, or RBA operational terms; it allocates the cost of APRA’s decision‑making process for CLF-related applications. The instrument does not reference other statutory charging frameworks, fee refund regimes, administrative law remedies or the Taxation Administration Act. Where silence exists, affected parties must look to the underlying APRA and Banking Act frameworks and to APRA’s administrative practice for further procedural or enforcement rules.

The instrument body contains limited material on amendment history. It is a standalone instrument dated 20 June 2018 and signed by Stephen Brian Matthews, Executive General Manager, as the delegate fixing the charges. The instrument records its subject as “Approval of ADIs’ applications with respect to the RBA’s Committed Liquidity Facility - Calendar Year 2017.” It states that it “commences on the date of registration on the Federal Register of Legislation under the Legislation Act 2003.”

Within the instrument text no subsequent amendments, revocations, or replacement instruments are mentioned. There is no internal schedule of prior versions or superseded instruments. The instrument does not indicate that it amends any prior APRA charging instrument; it stands alone as “instrument fixing charges No. 7 of 2018.” The label “No. 7 of 2018” suggests it is part of APRA’s instrument numbering for that year, but the instrument itself contains no cross‑references to earlier or later APRA charging instruments.

Because the instrument is governed by the usual registration process under the Legislation Act 2003, formal amendment (if any) would require a subsequent instrument or formal amendment procedure recorded on the Federal Register of Legislation. Those procedural aspects are not recorded inside this instrument text.

Practically, therefore, the readily verifiable amendment history inside this instrument is limited to what is on the face of the document: signed 20 June 2018, delegate named, commencement on registration. Any later changes to the fees, the fee bands, or the administrative procedures would require a further APRA instrument and are not reflected here.

This instrument contains no litigation history, and the text does not reference any court or tribunal decisions. It does not cite case law, nor does it indicate that the instrument has been subject to judicial or tribunal challenge. The instrument is an administrative charging instrument; it fixes fees and sets payment mechanics but does not record or summarise any disputes, appeals, or litigation outcomes.

Absence of litigation references in the instrument means the instrument itself does not record any legal contestation. If parties wished to challenge the charges, the instrument text does not set out an internal merits review mechanism, and any challenge would likely need to be mounted under the usual administrative law or statutory review processes applicable to APRA decisions or instruments. The instrument, however, does not identify such pathways or cite related rulings, so any litigation or appeals history must be sought outside this instrument’s text.

In short, within this instrument there is no litigation history to report; the instrument does not assert or summarise any court determinations relating to these charges.

Several practical and legal details in the instrument can produce surprises for ADIs and advisers.

1. Banding is tied to an “estimated” number of APRA days, but the instrument is silent on how that estimate is made or by whom. The Schedule ties each fee to where “the number of APRA days assessing CLF access applications is estimated to be” within defined ranges. The instrument does not set rules for determining that estimate, provide an audit mechanism, or state whether the ADI can contest APRA’s estimation. That creates a discretion and implementation risk: ADIs cannot look inside the instrument for criteria governing the APRA‑days estimate.

2. Charges are non‑refundable and payable whether or not approval is obtained. Footnote [3] makes plain that APRA will retain the charge even if the application is unsuccessful. An ADI may therefore incur a material non‑recoverable cost for an application that is refused.

3. Per‑entity treatment. Footnote [2] confirms the charge is “per entity.” Corporate groups with multiple ADI entities should expect separate invoices for each ADI entity that makes an application or is subject to APRA assessment, not a consolidated group charge.

4. Timing and possible retrospective billing. The instrument’s title references “Calendar Year 2017,” but the instrument is dated 20 June 2018 and “commences on the date of registration.” The Schedule also states APRA may invoice “at any time after this instrument commences.” That combination means APRA may bill in 2018 (or later) for assessments that relate to 2017 activity. ADIs should be alert to potential accounting and budgeting implications of being invoiced after the financial events they relate to.

5. GST inclusive notation. Footnote [1] states amounts are inclusive of GST. The Schedule lists flat fees without separate GST lines. ADIs that wish to claim GST input tax credits will need to account for GST treatment outside this instrument; the instrument itself simply presents amounts inclusive of GST.

6. No stated enforcement or appeal mechanics within the instrument. The instrument is explicit about charge amounts and payment timing, but it contains no express enforcement mechanisms, default interest, remission policy, or right to dispute the fee. ADIs have no procedural rights recorded in the instrument text itself to challenge fee band selection or to seek a refund. Any such mechanisms would have to be found in APRA’s broader policies or elsewhere in law.

7. Invoice timing can be administratively unpredictable. Because APRA may issue the invoice “at any time after this instrument commences,” an ADI cannot necessarily predict when APRA will bill. The payment clock starts on receipt; that timing uncertainty can affect cashflow and planning.

8. Scope limitation but potential practical breadth. The Schedule ties the charge to a specific paragraph of APS 210 and to the Banking Act subsection, but in practice whether a given interaction between APRA and an ADI falls within that description may require administrative clarification. The instrument itself does not include interpretative guidance on borderline cases.

These “gotchas” are faithful to what the instrument says and to what it leaves unsaid, and they identify concrete implementation and compliance risks that affected ADIs will need to manage.

The instrument sets narrow, concrete compliance steps and several points requiring administrative clarity from APRA.

1. Identify whether the ADI is within scope. The charge is payable by an ADI per the Schedule. An entity should determine whether it is an ADI for the purposes of section 5 of the Banking Act 1959, and whether it has made, or will make, an application under Attachment A, paragraph 16 of Prudential Standard APS 210 (the APS 210 paragraph is the Schedule’s specific trigger).

2. Budget for the per‑entity charge. The Schedule sets four flat fees tied to bands of APRA days: $11,000 (10 or less APRA days), $16,500 (11-15 days), $33,000 (16-30 days), and $88,000 (31-80 days). Footnote [2] makes clear the charge is “per entity,” so each ADI entity should budget the corresponding fee rather than relying on group consolidation. Footnote [1] confirms the amounts are inclusive of GST.

3. Expect non‑refundability. Footnote [3] states the charge is non‑refundable and payable whether or not the ADI obtains approval. Include that non‑recoupable cost in project economics for any application likely to be refused or conditional.

4. Prepare to pay promptly on invoice. The Schedule requires payment “14 days after receipt of APRA’s invoice for the charge.” Ensure accounts payable procedures can meet a 14‑day deadline to avoid any administratively adverse consequences from APRA’s perspective.

5. Clarify the APRA‑days estimate process with APRA in advance. The Schedule uses an “estimated” number of APRA days to select the fee band, but the instrument does not define the estimate’s methodology or the mechanism for resolving disputes about it. Before submitting an application, an ADI should seek written confirmation from APRA on how APRA will estimate APRA days and which band is likely to apply, and ask whether APRA will provide a pre‑invoice indication of the chosen band. While the instrument does not require APRA to supply a pre‑billing estimate, proactively obtaining APRA’s view reduces uncertainty.

6. Request an itemised invoice and recordkeeping. The instrument permits APRA to invoice after commencement and requires payment within 14 days. To facilitate internal controls and potential administrative queries, ADIs should request an itemised invoice that states the applied fee band, the APRA days estimate used, the period or application to which the fee relates, and confirmation that the charge is per entity and inclusive of GST. The instrument does not obligate APRA to provide these itemisations, but a documented invoice supports both payment and potential later challenge.

7. Coordinate tax treatment. Because the Schedule states fees are inclusive of GST, coordinate with tax advisers and accounting teams on GST input tax credit claims and how the inclusive fee should be accounted for in financial statements.

8. Maintain administrative records of the application and APRA communications. Because the instrument does not provide an appeal or refund route, preserve contemporaneous records that show the scope of APRA’s assessment, timelines, and any APRA communications that bear on the estimated APRA days or on the outcome. These records will be useful in any administrative or legal challenge that might be pursued under broader statutory or administrative law remedies.

9. If in doubt, seek formal clarification from APRA. The instrument’s silence on estimation methodology, challenge mechanisms, enforcement, and timing means ADIs should seek written clarification from APRA on those points before submitting an application, or consult legal advisers to consider whether any statutory review options are available in the event of a dispute.

Following these steps will align an ADI’s internal processes with the instrument’s explicit requirements: ensure whether the ADI is the liable entity, budget the per‑entity, GST‑inclusive fee, pay within 14 days of invoice, and document interactions with APRA concerning fee banding and estimates.