62ANotices to APRA

62A Notices to APRA

Matters requiring immediate notice (1) A member of a relevant group of bodies corporate commits an offence if: (a) it becomes aware that it, another member of the group, or the group as a whole, may not be in a sound financial position; and (b) it fails to notify APRA in writing of the matter immediately after it becomes aware of the matter.

Penalty: 200 penalty units.

Defence if matter already notified (1A) Subsection (1) does not apply in relation to a matter if: (a) the member of the group becomes aware of the matter because it is informed of it by an auditor of the member; and (b) the auditor informs the member that the auditor has notified APRA in writing of the matter; and (c) the member has no reason to disbelieve the auditor.

Note: The defendant bears an evidential burden in relation to the matters in subsection (1A). See subsection 13.3(3) of the Criminal Code.

Matters requiring notice as soon as practicable (1B) A member of a relevant group of bodies corporate commits an offence if: (a) it becomes aware that: (i) it, another member of the group, or the group as a whole, has breached or will breach a prudential standard applying to it, the other member or the group as a whole; or (ii) another member of the group has breached or will breach a provision of this Act or the regulations, or a direction under Division 1BA of Part II or section 29, or a condition of any authority granted under this Act to the other member; and (b) the breach is or will be significant (see subsection (1C)); and (c) it fails to give APRA a written report about the breach as soon as practicable, and in any case no later than 10 business days, after becoming aware of the breach.

Penalty: 200 penalty units.

(1C) For the purposes of paragraph (1B)(b), a breach is significant if the breach is or will be significant having regard to any one or more of the following factors: (a) the number or frequency of similar breaches; (b) the impact the breach has or will have on the member’s or other member’s ability to conduct its business; (c) the extent to which the breach indicates that the member’s or other member’s arrangements to ensure compliance with this Act, the regulations, the prudential standards or a direction or condition might be inadequate; (d) the actual or potential financial loss arising or that will arise from the breach: (i) to the depositors of the ADI or any ADI that is a member of the relevant group of bodies corporate; or (ii) to the member or other member; (e) any matters prescribed by the regulations for the purposes of this paragraph. Defence if auditor notifies breach (1D) Subsection (1B) does not apply in relation to a breach if: (a) an auditor of the member of the group gives APRA a written report about the breach; and (b) the report is given before, or within 10 business days after, the member becomes aware of the breach.