71Notification of recapitalisation or restructuring

71 Notification of recapitalisation or restructuring

(1) A body corporate (the body) contravenes this subsection if:

(a) the body:

(i) is a designated entity; or

(ii) is a related body corporate of a designated entity and is incorporated in Australia; and

(b) the body fails to give a written notice to the Reserve Bank, or to do so in the approved form (if any), immediately after:

(i) the body forms an intention to enter into a transaction to recapitalise; or

(ii) the board of the body agrees to a plan to restructure the body.

(2) Subsection (1) does not apply if the transaction or restructure will have no material impact on the designated entity’s ability to continue to provide cash distribution services.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Note: An individual can commit an ancillary offence that is either an offence against this subsection or an offence relating to this subsection (see Part 2.4 of the Criminal Code).

Penalty:

(a) for a body corporate—2,400 penalty units; and

(b) for an individual—imprisonment for 2 years or 240 penalty units, or both.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Note: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).

Civil penalty:

(a) for a body corporate—the greater of:

(i) 50,000 penalty units; and

(ii) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3; and

(b) for an individual—the greater of:

(i) 5,000 penalty units; and

(ii) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3.

Invalid acts

(5) If a body corporate:

(a) is incorporated in Australia; and

(b) purports to do either of the following acts:

(i) enter into a transaction to which subparagraph (1)(b)(i) applies;

(ii) an act that is part of implementing a plan to which subparagraph (1)(b)(ii) applies; and

(c) contravenes subsection (1) in relation to that transaction or plan;