An Act to support and regulate the provision of cash distribution services and providers of those services, and for related purposes
[Assented to 26 August 2026]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act is the Cash Distribution Framework Act 2026.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this Act The day after this Act receives the Royal Assent. 27 August 2026
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Object of this Act
The object of this Act is to promote access to cash for end‑users, including by:
(a) supporting the continued availability and long‑term economic viability of cash as a means of payment in Australia; and
(b) providing for the effective management and resolution of threats posed to the continuity of cash distribution services that are critical to the availability of cash in Australia; and
(c) promoting the provision of cash distribution services and facilities access on terms and conditions, including pricing and service‑levels, that are fair, reasonable, transparent and non‑discriminatory; and
(d) promoting the economically efficient operation of and investment in the cash distribution system, to promote effective competition in upstream and downstream markets.
4 Simplified outline of this Act
This Act provides for a scheme to designate, monitor, regulate, and in a crisis scenario manage, entities that have a significant role in the cash distribution system.
The Reserve Bank has the role of designating entities considered to have a significant role in the cash distribution system.
This Act establishes a framework for regulating service agreements and access agreements that are entered into by designated entities. Designated entities are required to report and keep records of those agreements and are regulated in their conduct when negotiating with potential parties to an agreement. An arbitration process is established under this Act for disputes about proposed terms of service agreements and access agreements.
Part Part 10 - Cash Distribution Framework Act 2026 - Miscellaneous | Zoe
The ACCC oversees, regulates and monitors the reporting, record‑keeping and dispute resolution requirements relating to service agreements and access agreements. The ACCC may also set service‑level standards that relate to the provision of cash distribution services and facilities access.
This Act imposes certain obligations on designated entities to enable management in a crisis scenario. The Reserve Bank is given powers to manage, set standards and address events that may threaten the continuity of critical cash distribution services. For the purposes of ensuring the continuity of critical cash distribution services, the Minister, with the Finance Minister’s approval, may authorise the payment of a specified amount if certain conditions are met.
The Reserve Bank and the ACCC are given information gathering powers and powers to make notification rules and record‑keeping rules as part of the performance of their functions under this scheme.
A range of compliance and enforcement powers are provided to the Reserve Bank and the ACCC under this Act, including by applying the Regulatory Powers Act.
This Act also deals with administrative matters such as the review process for certain decisions, delegations and the power to make rules.
5 Definitions
In this Act:
ACCC means the Australian Competition and Consumer Commission.
access agreement has the meaning given by subsection 9(1).
approval application has the meaning given by subsection 37(1).
approved form has the meaning given by subsection 199(2).
approved standard terms has the meaning given by section 34.
arrangement has the meaning given by subsection 761B(1) of the Corporations Act 2001.
ASIC means the Australian Securities and Investments Commission.
asset has the same meaning as in the Corporations Act 2001.
Australia, when used in a geographical sense, includes the external Territories.
benefit derived and detriment avoided, in relation to a contravention of a civil penalty provision, means the sum of:
(a) the total value of all benefits obtained by one or more persons that are reasonably attributable to the contravention; and
(b) the total value of all detriments avoided by one or more persons that are reasonably attributable to the contravention.
books has the same meaning as in the Corporations Act 2001.
business day has the same meaning as in the Corporations Act 2001.
cash means coins or paper money that is, because of a law in force in Australia, lawfully current in Australia.
cash distribution service has the meaning given by section 6.
cash distribution standard means a standard in force under section 77.
cash distribution system means the combination of services and facilities that enable:
(a) the movement of cash in Australia, including movement between the following:
(i) the issuer of the cash;
(ii) locations at which cash is routinely stored, processed or packaged;
(iii) businesses or consumers that use cash; and
(b) the storage of cash in Australia.
cash‑related contractual chain order means a road transport contractual chain order (within the meaning of the Fair Work Act 2009) that is made in relation to work performed in the cash in transit industry (within the meaning of paragraph (d) of the definition of road transport industry in subsection 15S(1) of the Fair Work Act 2009).
circulating asset has the same meaning as in the Personal Property Securities Act 2009.
circulating security interest has the same meaning as in the Corporations Act 2001.
civil penalty order has the same meaning as in the Regulatory Powers Act.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
constitution, in relation to a body corporate, has the same meaning as in the Corporations Act 2001.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
court has the same meaning as in the Corporations Act 2001.
Court has the same meaning as in the Corporations Act 2001.
customer means a person who is, or is to be, provided cash distribution services or facilities access.
decision‑maker has the meaning given by subsection 190(2).
designated entity means a body corporate covered by a designation in force under section 14.
director has the same meaning as in the Corporations Act 2001.
external administrator has the same meaning as in Part 7.3B of the Corporations Act 2001.
facilities access means access to one or more relevant facilities.
Federal Court means the Federal Court of Australia.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
financial market has the meaning given by section 767A of the Corporations Act 2001.
floating charge has the same meaning as in the Corporations Act 2001.
incorporated in Australia has the same meaning as in the Corporations Act 2001.
insolvent has the same meaning as in the Corporations Act 2001.
insolvent transaction has the same meaning as in the Corporations Act 2001.
inspector means a person appointed as an inspector under section 187.
internal review has the meaning given by subsection 191(1).
liability has the same meaning as in the Corporations Act 2001.
liquidator has a meaning affected by section 10.
listed has the same meaning as in the Corporations Act 2001.
listing rules has the same meaning as in the Corporations Act 2001.
member has the same meaning as in the Corporations Act 2001.
member of the staff of the ACCC means:
(a) a person referred to in subsection 27(1) of the Competition and Consumer Act 2010; or
(b) a person engaged under section 27A of that Act.
notification rules has the meaning given by subsection 76(1).
officer, in relation to a body corporate, has the same meaning as in the Corporations Act 2001, but does not include a statutory manager of the body corporate.
paper money means money comprising a note written, printed or otherwise made on paper or any other material.
party, in relation to a dispute to which Division 2 of Part 4 applies, has the meaning given by subsection 50(2).
possessory security interest has the same meaning as in the Corporations Act 2001.
PPSA retention of title property (short for Personal Property Securities Act retention of title property) has the same meaning as in the Corporations Act 2001.
PPSA security interest (short for Personal Property Securities Act security interest) means a security interest (within the meaning of the Personal Property Securities Act 2009) and to which that Act applies, other than a transitional security interest (within the meaning of that Act).
property:
(a) means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description; and
(b) includes:
(i) a thing in action; and
(ii) in relation to a body corporate, any PPSA retention of title property of the body corporate.
provider:
(a) in relation to a service agreement—has the meaning given by subsection 8(2); and
(b) in relation to an access agreement—has the meaning given by subsection 9(2).
provisional liquidator has a meaning affected by section 10.
recapitalise has the same meaning as in the Corporations Act 2001.
record‑keeping rules has the meaning given by subsection 166(1).
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
related body corporate has the same meaning as in the Corporations Act 2001.
relevant facility means any of the following that is owned, operated or controlled by a body corporate in connection with its provision of cash distribution services:
(a) premises or a part of premises;
(b) equipment or structures;
(c) vehicles or other machinery;
(d) information technology systems;
(e) intangible property.
Reserve Bank means the Reserve Bank of Australia.
resolvability standard means a standard in force under section 78.
retention of title clause has the same meaning as in the Corporations Act 2001.
reviewable decision has the meaning given by subsection 190(1).
rules means rules made under section 205.
secured creditor has the same meaning as in the Corporations Act 2001.
secured party has the same meaning as in the Corporations Act 2001.
security has the meaning given by subsection 92(5) of the Corporations Act 2001.
security interest has the same meaning as in the Corporations Act 2001.
senior manager has the same meaning as in the Corporations Act 2001.
service agreement has the meaning given by subsection 8(1).
service‑level standard has the meaning given by subsection 63(1).
statutory management has the meaning given by subsections 95(3) and (4).
statutory manager of a body corporate means:
(a) if the Reserve Bank is in control of the body corporate’s business under Part 7—the Reserve Bank; and
(b) each person appointed by the Reserve Bank to take control of a body corporate’s business under Part 7.
Note: See section 109 for when there are 2 or more statutory managers of a body corporate.
6 Meaning of cash distribution service
(1) A cash distribution service is a service that facilitates:
(a) the movement of cash in Australia, such as movement between any of the following:
(i) the issuer of the cash;
(ii) locations at which cash is routinely stored, processed or packaged;
(iii) businesses or consumers that use cash; or
(b) the storage of cash in Australia.
(2) A cash distribution service includes, for example, a service for any of the following in relation to cash in Australia:
(a) the collection, transport or delivery of cash, including collection from the issuer of the cash for circulation;
(b) the administration of requests for cash;
(c) receiving and dealing with cash on bailment;
(d) the transfer or trading of cash at, or between, locations where cash is routinely stored, processed or packaged;
(e) the sorting, storing, processing or packaging of cash;
(f) quality control or counterfeit detection in relation to cash;
(g) the supplying, restocking or servicing of automated teller machines or other like machines that enable deposits or withdrawals of cash.
(3) A cash distribution service also includes a service that:
(a) relates to cash, or the availability of cash, in Australia; and
(b) is specified by the rules for the purposes of this paragraph.
(4) The rules may specify a service that is taken not to be a cash distribution service. Rules made for the purposes of this subsection have effect despite anything else in this section.
7 Availability of cash in Australia
A reference in this Act to cash in Australia, or the availability of cash in Australia, includes a reference to cash or its availability in a part of Australia.
8 Meaning of service agreement
(1) A service agreement is an agreement (other than an access agreement) under which a designated entity provides or is to provide one or more cash distribution services to another person who is carrying on a business.
Note: The person to whom the services are or are to be provided may also be a designated entity.
(2) The designated entity that provides or is to provide the services is the provider in relation to the agreement.
9 Meaning of access agreement
(1) An access agreement is an agreement under which a designated entity provides or is to provide facilities access to another person who:
(a) carries on a business; and
(b) is to use the facilities access provided in connection with the person’s own provision of cash distribution services.
Note: The person to whom the facilities access is or is to be provided may also be a designated entity.
(2) The designated entity that provides or is to provide the facilities access is the provider in relation to the agreement.
10 Liquidators and provisional liquidators
(1) If 2 or more persons have been appointed as liquidators of a body corporate:
(a) a function or power of a liquidator of the body corporate under this Act may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or resolution appointing them otherwise provides; and
(b) a reference in this Act to a liquidator, or to the liquidator, of a body corporate is, in the case of the first‑mentioned body corporate, a reference to whichever one or more of those liquidators the case requires.
(2) If 2 or more persons have been appointed as provisional liquidators of a body corporate:
(a) a function or power of a provisional liquidator of the body corporate under this Act may be performed or exercised by any one of them, or by any 2 or more of them together, except so far as the order or resolution appointing them otherwise provides; and
(b) a reference in this Act to a provisional liquidator, or to the provisional liquidator, of a body corporate is, in the case of the first‑mentioned body corporate, a reference to whichever one or more of those provisional liquidators the case requires.
(3) Nothing in this section limits section 530 or 530AA of the Corporations Act 2001.
11 Extension to external Territories
This Act extends to every external Territory.
12 Act binds the Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
Note: The Crown is not liable to a pecuniary penalty for the breach of a civil penalty provision or to be given an infringement notice: see subsections 183(5) and 184(8).
Part 2—Designating entities that provide significant cash distribution services
13 Simplified outline of this Part
This Part empowers the Reserve Bank to designate an entity (a body corporate) for the purposes of this Act. To be designated, a body corporate must be a constitutional corporation and carry on a business of providing cash distribution services in Australia. The Reserve Bank must also consider that the body corporate satisfies a criterion relating to the significance of its role in the cash distribution system.
In making a designation, the Reserve Bank must consult the ACCC.
The Reserve Bank cannot designate itself under this Part.
14 Designation of entity by Reserve Bank
(1) The Reserve Bank may, by legislative instrument, designate a body corporate under this section if:
(a) the body corporate is a constitutional corporation; and
(b) the body corporate carries on a business of providing cash distribution services in Australia; and
(c) the Reserve Bank considers that:
(i) the body corporate provides cash distribution services that support a significant part of the cash distribution system; or
(ii) a disruption to the body corporate’s operations would be likely to threaten continuity in the functioning of the cash distribution system; or
(iii) the body corporate otherwise has a significant role in the cash distribution system.
(2) To avoid doubt, paragraph (1)(c) may be satisfied even if the body corporate provides cash distribution services in one or more parts of Australia, rather than generally throughout Australia.
(3) In considering the matter mentioned in subparagraph (1)(c)(i), the Reserve Bank may have regard to:
(a) whether the body corporate is in a position to substantially influence a market for cash distribution services; or
(b) whether relevant facilities of the body corporate are of national or regional significance to the cash distribution system; or
(c) whether the body corporate provides cash distribution services that are important to the efficient functioning and operation of the cash distribution system; or
(d) any other matters the Reserve Bank considers relevant.
15 Revocation or variation of designation
The Reserve Bank may, by legislative instrument, vary or revoke a designation under section 14.
16 Consultation and advice
(1) Before making, varying or revoking a designation under section 14, the Reserve Bank must consult with the ACCC.
(2) The ACCC may, on its own initiative, advise the Reserve Bank in relation to:
(a) whether a designation under section 14 should be made, varied or revoked; or
(b) any other matter relating to a designation or proposed designation under section 14.
17 Reserve Bank cannot designate itself
To avoid doubt, the Reserve Bank cannot designate itself under section 14.
Note: The Royal Australian Mint is not a body corporate and also cannot be designated.
Part 3—Oversight framework for service agreements and access agreements
Division 1—Preliminary
18 Simplified outline of this Part
This Part establishes how service agreements and access agreements are overseen and regulated and the obligations of designated entities in relation to those agreements.
Division 2 provides reporting and record‑keeping requirements for service agreements and access agreements. A report about those agreements is required to be given to the ACCC after a body corporate becomes a designated entity, and then after the end of each financial year. The ACCC has the power to determine an alternative period for a designated entity to give reports.
The ACCC may require a copy of any service agreement or access agreement to which a designated entity is party. Designated entities are required to retain service agreements and access agreements for at least 6 years.
Division 3 contains the requirements for how a designated entity conducts negotiations with another person when proposing to enter into a service agreement or an access agreement, or when a variation to such an agreement is proposed. Requirements for certain terms to be contained in these agreements are also outlined in that Division.
Division 4 outlines the process by which standard terms applicable to service agreements and access agreements are approved by the ACCC, or determined by the ACCC to be approved standard terms under this Act. A designated entity is generally required to have approved standard terms for cash distribution services or facilities access it provides. The ACCC is required to keep a public register of approved standard terms.
A person who contravenes this Part may be liable to a civil penalty.
Division 2—Reporting and record‑keeping for service agreements and access agreements
19 Requirement to give ACCC report upon becoming a designated entity
(1) A designated entity must give to the ACCC a written report containing the information specified in section 21 in relation to any service agreement or access agreement for which it is a provider at the time its designation under section 14 comes into force.
(2) The report must be given:
(a) within 30 business days after the entity’s designation comes into force; or
(b) if the ACCC determines a longer period for the report under section 22—within the period determined.
(3) A designated entity is liable to a civil penalty if:
(a) the entity is required to give a report under subsection (1); and
(b) the entity fails to give the report within the period required by subsection (2).
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
(4) A report under subsection (1) is not a legislative instrument.
20 Requirement to give ACCC annual report on agreements
(1) A designated entity must, for each financial year, give to the ACCC a written report containing the information specified in section 21 in relation to any service agreement or access agreement for which the entity was the provider in the financial year.
(2) The report must be given:
(a) within 30 business days after the end of the financial year; or
(b) if the ACCC determines a longer period for the report under section 22—within the period determined.
(3) A designated entity is liable to a civil penalty if:
(a) the entity is required to give a report under subsection (1); and
(b) the entity fails to give the report within the period required by subsection (2).
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
(4) A report under subsection (1) is not a legislative instrument.
21 Information that must be contained in report
(1) The information in relation to a service agreement or access agreement that must be contained in a designated entity’s report under section 19 or 20 is as follows:
(a) the names of the parties to the agreement;
(b) details of the cash distribution services or facilities access to which the agreement relates;
(c) the postcodes of any customer locations to which the cash distribution services or facilities access under the agreement relates;
(d) the date the agreement was entered into;
(e) the period of the agreement;
(f) such information (if any) about the agreement as is determined under subsection (2) of this section.
(2) The ACCC may, by legislative instrument, determine information for the purposes of paragraph (1)(f).
(3) A report under section 20 must also contain the following information:
(a) if the agreement was varied at any time in the financial year to which the report relates—information setting out how any of the information mentioned in subsection (1) of this section has changed during that financial year;
(b) if the agreement ceased to be in force at any time in the financial year—the date of that occurrence.
22 Alternative period for giving report
(1) If the ACCC considers it appropriate to do so, the ACCC may, by written notice given to a designated entity, determine that:
(a) the entity’s report under section 19 is to be given within a longer period specified in the determination; or
(b) the entity’s report under section 20 for one or more specified financial years is to be given within a longer period specified in the determination.
(2) The ACCC may make a determination under subsection (1):
(a) on its own initiative; or
(b) on written application by the entity.
(3) An application under paragraph (2)(b) must contain a statement explaining why the entity considers the determination sought is necessary and appropriate to be made in the circumstances.
(4) A determination under subsection (1) is not a legislative instrument.
23 ACCC may require copy of service agreement or access agreement
(1) The ACCC may, by written notice given to a designated entity, require the entity to provide a copy of either or both of the following within 10 business days after the day the notice is given:
(a) a service agreement or access agreement to which the entity is party;
(b) an agreement varying a service agreement or access agreement to which the entity is party.
(2) A designated entity is liable to a civil penalty if:
(a) the entity is required to give a copy of a document in accordance with a notice under subsection (1); and
(b) the entity fails to comply with the requirement.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
(3) A notice under subsection (1) is not a legislative instrument.
24 Requirement to retain agreements
(1) A designated entity must retain each service agreement or access agreement entered into by the entity, for which the entity is (or was) the provider, that has not been varied since the agreement was entered into for at least 6 years after the agreement was entered into.
(2) A designated entity must retain each service agreement or access agreement entered into by the entity, for which the entity is (or was) the provider, that has been varied since the agreement was entered into with the agreement to vary for at least 6 years after the variations commenced.
(3) A designated entity is liable to a civil penalty if:
(a) the entity is required to retain a document in accordance with this section; and
(b) the entity fails to comply with the requirement.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
Division 3—Terms of service agreements and access agreements
25 Agreements must be in writing
(1) A designated entity is liable to a civil penalty if:
(a) the entity enters into a service agreement or access agreement for which it is the provider; and
(b) the agreement is not in writing.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(2) A designated entity is liable to a civil penalty if:
(a) the entity enters into an agreement to vary a service agreement or access agreement for which it is the provider; and
(b) the agreement to vary is not in writing.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
26 Designated entity must give copy of any approved standard terms
(1) A designated entity is liable to a civil penalty if:
(a) the entity participates in negotiations regarding:
(i) a proposed service agreement or access agreement with the other person for which the entity would be the provider; or
(ii) a proposed variation of a service agreement or access agreement with another person for which the entity is the provider; and
(b) the entity has approved standard terms covering the cash distribution services or facilities access to which the proposed agreement, or proposed variation, relates; and
(c) the entity fails to give the other person a written copy of the approved standard terms within a reasonable time after starting to participate in the negotiations; and
(d) the approval or determination under Division 4 in relation to the approved standard terms is not revoked before the time the entity is required to give the copy under paragraph (c).
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
Continuing contraventions
(2) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (1) of this section.
27 Designated entity must give notice of certain matters relating to approved standard terms
(1) A designated entity is liable to a civil penalty if:
(a) the entity participates in negotiations regarding:
(i) a proposed service agreement or access agreement with the other person; or
(ii) a proposed variation of a service agreement or access agreement with the other person; and
(b) at the time the entity starts to participate in the negotiations, the entity has approved standard terms covering the cash distribution services or facilities access to which the proposed agreement, or proposed variation, relates; and
(c) any of the following applies in relation to the period during which the negotiations are undertaken:
(i) as at the start of, or at any time in, that period, the entity is required by the ACCC to make an application to vary those approved standard terms (see section 36);
(ii) as at the start of, or at any time in, that period the entity has a pending approval application for variation of those approved standard terms (see section 37);
(iii) at any time in that period, the ACCC approves a variation of those approved standard terms (see section 42);
(iv) at any time in that period, the ACCC determines a variation of those approved standard terms (see section 43);
(v) at any time in that period, the approval or determination of those approved standard terms is revoked by the ACCC (see section 46); and
(d) the entity fails to give the other person written notice of the following within a reasonable time after the occurrence to which paragraph (c) applies:
(i) the occurrence;
(ii) if the occurrence relates to a proposed variation or approval of a variation—the particulars of the variation.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
Continuing contraventions
(2) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (1) of this section.
28 Reasonable attempt to enter into service agreement or access agreement
(1) A designated entity is liable to a civil penalty if:
(a) another person proposes to enter into a service agreement or access agreement with the entity; and
(b) the entity would be the provider for the proposed agreement; and
(c) the entity has approved standard terms that cover the cash distribution services or facilities access to which the proposed agreement relates; and
(d) the entity does not reasonably attempt to enter into the agreement on either:
(i) the approved standard terms; or
(ii) other terms specifically negotiated with the other person; and
(e) a determination under subsection 54(1) (about arbitration determinations) does not apply in relation to the proposed agreement.
Note 1: Requirements relating to service agreements and access agreements may also apply under service‑level standards: see Division 2 of Part 5.
Note 2: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 3: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
Civil penalty:
(a) for a body corporate—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(2) A designated entity is liable to a civil penalty if:
(a) another person proposes to vary a service agreement or access agreement the person has entered into with the entity; and
(b) the entity is the provider for the service agreement or access agreement; and
(c) the entity has approved standard terms that cover the cash distribution services or facilities access to which the proposed variation relates; and
(d) the entity does not reasonably attempt to enter into an agreement to vary the service agreement or access agreement on either:
(i) terms consistent with the approved standard terms; or
(ii) other terms specifically negotiated with the other person; and
(e) a determination under subsection 54(1) (about arbitration determinations) does not apply in relation to the proposed variation.
Note 1: Requirements relating to service agreements and access agreements may also apply under service‑level standards: see Division 2 of Part 5.
Note 2: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 3: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
Civil penalty:
(a) for a body corporate—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(3) The matter mentioned in paragraph (1)(d) or (2)(d) is to be determined having regard to all the circumstances, including whether the provision of the cash distribution services or facilities access in accordance with the approved standard terms would have been reasonable.
29 Requirement to negotiate
(1) A designated entity is liable to a civil penalty if:
(a) the entity:
(i) provides cash distribution services and would be the provider of those services for a proposed service agreement; or
(ii) owns, operates or controls a relevant facility and would be the provider of facilities access to that facility for a proposed access agreement; and
(b) the entity does not have approved standard terms that cover the cash distribution services or facilities access to which the proposed agreement relates; and
(c) the entity fails to give another person who is proposed to be party to the agreement a reasonable opportunity to negotiate the terms of the agreement.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(2) A designated entity is liable to a civil penalty if:
(a) the entity is the provider for a service agreement or access agreement; and
(b) there is a proposed agreement to vary the service agreement or access agreement; and
(c) the entity does not have approved standard terms that cover the cash distribution services or facilities access to which the proposed agreement relates; and
(d) the entity fails to give another person who is party to the service agreement or access agreement a reasonable opportunity to negotiate the terms of the agreement to vary.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
30 Dealing in relation to negotiations—good faith and advising of arbitration process
(1) A designated entity is liable to a civil penalty if:
(a) the entity participates in negotiations with another person about a proposed service agreement or access agreement; and
(b) the entity would be the provider for the agreement; and
(c) either:
(i) the entity fails to deal in good faith with the other person in relation to the negotiations; or
(ii) the entity fails to advise the other person in writing about the existence of the arbitration process in Division 2 of Part 4 in the course of the negotiations.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(2) A designated entity is liable to a civil penalty if:
(a) the entity participates in negotiations with another person about a proposed agreement to vary a service agreement or access agreement; and
(b) the entity is the provider for the agreement; and
(c) either:
(i) the entity fails to deal in good faith with the other person in relation to the negotiations; or
(ii) the entity fails to advise the other person in writing about the existence of the arbitration process in Division 2 of Part 4 in the course of the negotiations.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
31 Matters to take into account regarding good faith
(1) In determining whether a designated entity deals in good faith with another person in relation to negotiations for the purposes of this Division, regard may be had to the following matters:
(a) the extent to which the entity has acted honestly;
(b) the extent to which the entity has not acted arbitrarily, capriciously, unreasonably, recklessly or with ulterior motives;
(c) the extent to which the entity has acted in a way that constitutes retribution against the other person for past disputes with the other person (including disputes in mediation or arbitration);
(d) the nature of the entity’s relationship with the other person (including the extent to which the entity has conducted the relationship without duress);
(e) the extent to which the entity’s relationship with the other person has been conducted in recognition of the need for certainty regarding the risks and costs of providing and purchasing cash distribution services or facilities access;
(f) the extent to which the entity has undermined, or denied the other person, a benefit of any agreement;
(g) whether the entity has complied with any applicable confidentiality requirements relating to information disclosed or obtained in dealing with or resolving a complaint or dispute with the other person;
(h) whether the entity has ensured that any terms of an agreement that it proposes in the negotiations, or that would result from the negotiations, are fair, reasonable, transparent and non‑discriminatory;
(i) any other relevant matter.
(2) To avoid doubt, a designated entity does not fail to deal in good faith with another person merely because the entity acts in its legitimate commercial interests.
32 Service agreements and access agreements must include certain terms
A designated entity is liable to a civil penalty if:
(a) the entity enters into, or agrees to vary, a service agreement or access agreement; and
(b) the entity is the provider for the agreement; and
(c) the agreement as entered into, or varied, does not include any of the following:
(i) terms that set out the costs to be charged for the provision of cash distribution services or facilities access under the agreement, or the way those costs are to be determined;
(ii) terms that provide procedures for dealing with and resolving complaints by the other party to the agreement about matters arising under or in connection with the agreement;
(iii) terms that provide alternative dispute resolution processes (such as conferencing, mediation or arbitration) as a way of resolving disputes between the parties to the agreement about matters arising under or in connection with the agreement.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
33 Validity of agreements not affected
A failure to comply with a provision of this Division in relation to an agreement or variation of an agreement does not affect the validity of the agreement or variation.
Division 4—Approved standard terms for service agreements and access agreements
Subdivision A—Approved standard terms
34 Approved standard terms
Approved standard terms of a designated entity are standard terms for which:
(a) the entity has an approval that is in force under this Division; or
(b) a determination in relation to the entity is in force under Subdivision D.
Subdivision B—Applications for approval
35 Requirement to apply for approval of standard terms
Designated entity must apply for approval of standard terms
(1) A designated entity must apply to the ACCC for approval of standard terms for cash distribution services or facilities access, regardless of whether the entity has previously made such an application, if:
(a) the entity provides, or offers to provide, cash distribution services or facilities access; and
(b) the entity does not have approved standard terms covering the cash distribution services or facilities access; and
(c) the entity:
(i) does not have a pending approval application for such standard terms; and
(ii) does not have such standard terms for which an approval is yet to take effect (see paragraph 42(2)(c)); and
(d) if the ACCC notified the entity under paragraph 43(5)(a) that the ACCC is proposing to make a determination of standard terms that would cover the cash distribution services or facilities access:
(i) the ACCC has notified the entity under paragraph 43(6)(b) that the ACCC does not intend to proceed with making the determination; or
(ii) the period within which the determination may be made under subsection 43(8) has expired; and
(e) the cash distribution services or facilities access is not of a kind specified under subsection (2) of this section.
(2) For the purposes of paragraph (1)(e), the ACCC may, by legislative instrument, make a determination specifying:
(a) a kind of cash distribution services; or
(b) a kind of facilities access.
Timing for application
(3) The entity must make the application before the end of 30 business days after the entity becomes required to apply under subsection (1).
(4) On written application by the entity made before the end of the period mentioned in subsection (3), the ACCC may, in writing, extend that period if the ACCC is satisfied it is appropriate to do so.
(5) The period may be extended more than once.
Civil penalty
(6) A designated entity is liable to a civil penalty if:
(a) the entity is required to apply to the ACCC under subsection (1); and
(b) the entity fails to do so within the period required by subsection (3) (as affected by any extension under subsection (4)).
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
36 Requirement to apply for variation of approved standard terms
(1) The ACCC may, by notice in writing given to a designated entity, require the entity to make an application under section 37 to vary, in relation to specified matters, approved standard terms that the entity has.
(2) Without limiting the circumstances in which the ACCC may give a notice under subsection (1), the ACCC may give a notice in response to the making or amendment of an instrument under subsection 37(5).
(3) If a designated entity is required to make an application in accordance with a notice under subsection (1), the entity must make the application within 30 business days after the notice is given.
(4) On written application by the entity made before the end of the period mentioned in subsection (3), the ACCC may, in writing, extend that period if the ACCC is satisfied it is appropriate to do so.
(5) The period may be extended more than once.
Civil penalty provision
(6) A designated entity is liable to a civil penalty if:
(a) the entity is required to make an application in accordance with a notice under subsection (1); and
(b) the entity fails to do so within the period required by subsection (3) (as affected by any extension under subsection (4)).
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
37 Making an application
(1) A designated entity may make an application to the ACCC (an approval application) for approval of:
(a) proposed standard terms covering the provision of a kind of cash distribution services or facilities access to all customers or to one or more particular kinds of customers; or
(b) a proposed variation of approved standard terms that the entity has in relation to the provision of a kind of cash distribution services or facilities access to all customers or to one or more particular kinds of customers.
Note: For requirements to make an approval application, see sections 35 and 36.
(2) The application must:
(a) be made in writing; and
(b) set out the kind of cash distribution services or facilities access, and the kinds of customers (if applicable), to which the application relates; and
(c) contain any other information, and be accompanied by any documents, specified in an instrument under subsection (3).
(3) The ACCC may, by legislative instrument, make a determination specifying information or documents for the purposes of paragraph (2)(c).
(4) An application for approval of proposed standard terms must (subject to subsection (7)) set out proposed standard terms that deal with all of the following matters in relation to an agreement:
(a) fees and adjustments to fees, including the pricing model used, for cash distribution services or facilities access provided under the agreement;
(b) invoicing for the cash distribution services or facilities access, including payment terms, late fees and interest payable;
(c) termination of the agreement;
(d) warranties for the cash distribution services or facilities access;
(e) dealing with and resolving complaints by a party to the agreement about matters arising under or in connection with the agreement;
(f) alternative dispute resolution processes (such as conferencing, mediation or arbitration) as a way of resolving disputes between the parties to the agreement about matters arising under or in connection with the agreement;
(g) the way cash distribution services or facilities access is to be arranged under the agreement (as applicable);
(h) for standard terms covering facilities access—any applicable pre‑conditions for that access (such as safety, security or insurance requirements);
(i) any other matter specified in an instrument under subsection (5).
(5) The ACCC may, by legislative instrument, make a determination specifying a matter for the purposes of paragraph (4)(i).
(6) An application for a proposed variation of approved standard terms must (subject to subsection (7)):
(a) set out the proposed variation of the standard terms; and
(b) to the extent that the existing standard terms do not deal with any matter specified in an instrument under subsection (5)—include proposed standard terms dealing with that matter.
(7) The ACCC may, by legislative instrument, determine that an application by a specified designated entity does not need to set out terms dealing with specified matters.
38 ACCC may require further information
(1) The ACCC may, by notice in writing given to a designated entity that has made an approval application, require the entity to give the ACCC, within a reasonable period specified in the notice, further information that the ACCC considers relevant to making its decision on the application.
(2) A designated entity is liable to a civil penalty if:
(a) the entity is required to give information in accordance with a notice under subsection (1); and
(b) the entity fails to comply with the requirement.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
39 Amendment of application
Amendment of application with permission of the ACCC
(1) A designated entity that makes an approval application may make a request to the ACCC, in writing, for permission to amend the application.
(2) The ACCC must:
(a) within a reasonable time after the request is made, decide whether or not to give the permission; and
(b) give the entity notice of the decision as soon as practicable after it is made; and
(c) if the ACCC decides to give the permission—specify in the notice a reasonable period within which the amendment may be made.
(3) If the ACCC gives permission under subsection (2) for the entity to amend that application, the entity may amend the application within:
(a) the period specified in the notice of the permission; or
(b) if the ACCC allows a longer period for making the amendment—that period.
ACCC may require amendment of application
(4) The ACCC may, by notice in writing given to a designated entity that has made an approval application, require the entity to amend the application in relation to a specified matter within a reasonable period specified in the notice, if:
(a) at any time after the application is made (but before a decision is made on the application):
(i) a new matter is specified for the purposes of paragraph 37(4)(i); or
(ii) there is a change in a matter specified for the purposes of that paragraph; and
(b) the ACCC considers such an amendment is necessary or desirable to deal with that new matter or change in matter.
(5) A designated entity is liable to a civil penalty if:
(a) the entity is required to amend an application under subsection (4); and
(b) the entity fails to comply with the requirement.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
40 Withdrawal of application
(1) A designated entity may withdraw an approval application made by the entity only if:
(a) the ACCC has not made a decision on the application; and
(b) the designated entity neither provides, nor proposes to provide, any cash distribution services or facilities access that would be covered by the standard terms to which the application relates.
(2) To avoid doubt, Subdivision C does not apply to an approval application that has been withdrawn.
Subdivision C—Approval of standard terms
41 ACCC consideration of application
(1) The ACCC must consider an approval application and decide whether or not to approve the proposed standard terms or proposed variation of approved standard terms.
(2) In making its decision on the application, the ACCC must have regard to the following matters:
(a) the object of this Act;
(b) the legitimate business interests of the designated entity;
(c) the public interest;
(d) the interests of customers who would potentially be provided relevant cash distribution services or facilities access by the entity;
(e) the principle that the pricing of relevant cash distribution services or facilities access should:
(i) be set so as to generate expected revenue that is at least sufficient to meet the efficient costs of providing the cash distribution services or facilities access; and
(ii) include a return on investment commensurate with the regulatory and commercial risks involved; and
(iii) for facilities access—not discriminate in favour of the entity’s own downstream operations (in the case of a vertically integrated designated entity), or operations of a related body corporate, except to the extent that the cost of providing facilities access to other persons is higher; and
(iv) use methods that provide incentives to reduce costs incurred by or otherwise improve productivity of the entity;
(f) any relevant service‑level standard;
(fa) any relevant cash‑related contractual chain order;
(g) any requirements determined under subsection 60(1) (which deals with dispute resolution requirements);
(h) any submissions or consultation referred to in subsection (3) of this section in relation to the application;
(i) any information given under section 38 in relation to the application;
(j) any other matters the ACCC considers relevant.
(3) Before making its decision on the application, the ACCC may conduct consultation by:
(a) inviting submissions from the public or particular persons on the application; or
(b) undertaking such other consultation on the application as the ACCC considers appropriate, whether publicly or with particular persons.
(3A) Without limiting subsection (3), the ACCC may consult the Fair Work Commission or the Fair Work Ombudsman in relation to interactions with any relevant cash‑related contractual chain orders.
(4) The ACCC must make a decision on the application within:
(a) 130 business days after the day the application is made; or
(b) if the application is for an approval of a proposed variation of approved standard terms—90 business days after the day the application is made.
(5) For the purposes of subsection (4), if the application is amended under section 39, the period for making a decision on the application is extended by 60 business days.
(6) For the purposes of subsection (4), the ACCC may decide, by written notice to the entity, that so much of one or more of the following periods as the ACCC considers appropriate is to be disregarded:
(a) any period during which the ACCC is waiting for the entity to amend the application under section 39 after granting permission for or giving notice requiring the making of the amendment;
(b) any period during which the ACCC is waiting to receive information from the entity in accordance with a notice under section 38 in relation to the application;
(c) any period during which the ACCC is conducting consultation under subsection (3) of this section.
(7) For the purposes of subsection (4), the ACCC may agree in writing with the entity that one or more other periods are to be disregarded.
(8) If the ACCC does not make a decision on the application within the period required, the ACCC is taken to have made a decision not to approve the proposed standard terms or proposed variation.
42 Notifying designated entity of decision
(1) The ACCC must notify the entity, in writing, of its decision on the application as soon as reasonably practicable after making the decision.
When approval takes effect
(2) If the ACCC decides to approve the proposed standard terms or proposed variation of approved standard terms:
(a) the notice must set out the standard terms approved or variation approved; and
(b) for an approval of standard terms—the notice must:
(i) state the kind of cash distribution services or facilities access in relation to which the standard terms are approved; and
(ii) state that the approval applies in relation to all customers or to a specified kind of customers; and
(c) in any case—the approval takes effect:
(i) on the day after notice of the decision to approve the standard terms or the variation is given to the entity; or
(ii) on a later day specified in the notice (which must not be more than 10 business days after the notice is given).
Decision not to approve
(3) If the ACCC decides not to approve the proposed standard terms or proposed variation, the notice must contain a statement of the reasons for the decision.
Subdivision D—Determination of standard terms by ACCC
43 Determination of standard terms by ACCC
(1) The ACCC may, by writing, determine standard terms or a variation of approved standard terms for a particular designated entity in relation to the provision of a kind of cash distribution services or facilities access to all customers or a specified kind of customers.
(2) The ACCC may only determine standard terms under subsection (1) if the ACCC is satisfied that:
(a) the entity has failed to comply with a requirement under section 35 to make an application for approval of standard terms covering the cash distribution services or facilities access; or
(b) the entity has failed to comply with a requirement under section 38 to give the ACCC information in relation to an application for approval of standard terms covering the cash distribution services or facilities access; or
(c) the ACCC has decided (or is taken to have decided) under Subdivision C not to approve standard terms covering the cash distribution services or facilities access.
(3) The ACCC may only determine a variation of approved standard terms under subsection (1) if:
(a) the ACCC is satisfied that:
(i) the entity has failed to comply with a requirement under section 36 to make an application for approval of a variation of standard terms covering the cash distribution services or facilities access; or
(ii) the entity has failed to comply with a requirement under section 38 to give the ACCC information in relation to an application for approval of a variation of approved standard terms covering the cash distribution services or facilities access; or
(iii) the ACCC has decided (or is taken to have decided) under Subdivision C not to approve a variation of approved standard terms covering the cash distribution services or facilities access for the entity; and
(b) the variation is in relation to the same matter with which the requirement to vary, or application for approval of a variation, was concerned.
(4) In making a determination under subsection (1), the ACCC must have regard to the following matters:
(a) the matters mentioned in paragraphs 41(2)(a) to (g);
(b) any submissions or consultation referred to in subsection (7) of this section in relation to the application;
(c) any information given under section 45 in relation to the determination;
(d) any other matters the ACCC considers relevant.
Notification of proposal before making decision to determine standard terms
(5) Before making a determination under subsection (1), the ACCC must:
(a) notify the entity, in writing, of the matters in relation to which the ACCC is proposing to make a determination; and
(b) invite the entity to make submissions to the ACCC within 10 business days after the notice is given regarding the proposal to make the determination.
(6) The ACCC must:
(a) consider any submissions made under paragraph (5)(b); and
(b) notify the entity, in writing, of whether the ACCC intends to proceed with making a determination under subsection (1).
Consultation on determination
(7) Before making a determination under subsection (1), the ACCC:
(a) may conduct consultation by:
(i) inviting submissions from the public or particular persons on the proposed determination; or
(ii) undertaking such other consultation on the proposed determination as the ACCC considers appropriate, whether publicly or with particular persons; and
(b) without limiting paragraph (a)—must, by written notice given to the entity, invite submissions from the entity within the period specified in the notice on standard terms that the ACCC proposes to determine.
(7A) Without limiting paragraph (7)(a), the ACCC may consult the Fair Work Commission or the Fair Work Ombudsman in relation to interactions with any relevant cash‑related contractual chain orders.
Timing for determining standard terms
(8) The ACCC may only make a determination under subsection (1) within the period of 130 business days after the ACCC gave notice under paragraph (6)(b) in relation to the determination.
(9) For the purposes of subsection (8), the ACCC may decide, by written notice to the entity, that so much of one or more of the following periods as the ACCC considers appropriate is to be disregarded:
(a) any period during which the ACCC is waiting to receive information from the entity in accordance with a notice under section 45 in relation to the proposed determination;
(b) any period during which the ACCC is conducting consultation under paragraph (7)(b) of this section.
(10) For the purposes of subsection (8), the ACCC may agree in writing with the entity that one or more other periods are to be disregarded.
Other matters
(11) A determination under subsection (1) is not a legislative instrument.
44 Notifying designated entity of decision
(1) The ACCC must notify the entity, in writing, of a determination under subsection 43(1) as soon as reasonably practicable after it is made.
(2) The notice must be accompanied by a copy of the determination.
(3) The determination takes effect:
(a) on the day after the notice of the determination is given to the entity; or
(b) on a later day specified in the determination (which must not be more than 10 business days after the notice of the determination is given).
45 ACCC may require further information
(1) The ACCC may, by written notice given to a designated entity, require the entity to give the ACCC, within a reasonable period specified in the notice, information that the ACCC considers relevant to a proposed determination under section 43 in relation to the entity.
(2) A designated entity is liable to a civil penalty if:
(a) the entity is required to give information in accordance with a notice under subsection (1); and
(b) the entity fails to comply with the requirement.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
Subdivision E—Revocation and related matters
46 Revocation of approval or determination of standard terms
(1) The ACCC may, by written notice given to a designated entity, revoke an approval or determination of standard terms for the entity.
(2) In deciding whether or not to revoke the approval or determination, the ACCC must have regard to:
(a) the public interest; and
(b) any relevant service‑level standard; and
(ba) any relevant cash‑related contractual chain order; and
(c) any submissions made by the entity in response to a notice under subsection (4) relating to the decision; and
(d) any other matters the ACCC considers relevant.
(3) The written notice must:
(a) specify the day on which the revocation takes effect; and
(b) include a statement regarding the effect of section 35 (designated entity must apply for approval of standard terms).
(4) Before revoking a designated entity’s approval or determination under this section, the ACCC must:
(a) give the entity a written notice of the proposed decision that contains a statement of the reasons for the proposed decision; and
(b) invite the entity to make submissions regarding the proposed decision within 10 business days after the notice is given.
47 When approval or determination of standard terms ceases to apply
A designated entity’s approval or determination of standard terms that covers cash distribution services or facilities access ceases to apply to the extent that an instrument under subsection 35(2) starts to apply in relation to those services or access.
Subdivision F—Other matters
48 ACCC to maintain standard terms register
(1) The ACCC must keep a register of the following information in relation to each designated entity that has, or has had, approved standard terms:
(a) the name of the entity;
(b) for any approved standard terms that the entity has:
(i) a statement identifying the cash distribution services or facilities access covered by those terms; and
(ii) the content of those terms (as affected by any variation approved under this Division); and
(iii) the date the approval or determination of those terms (and the approval or determination of any variation of those terms) came into force;
(c) for any revocation of an approval or determination that has been made under this Division:
(i) a statement identifying the cash distribution services or facilities access that were covered by the approval or determination; and
(ii) the date the revocation came into force.
(2) The register must include any other information specified by the rules.
(3) The register must be made available for public inspection on the internet.
Part 4—Dispute resolution
Division 1—Preliminary
49 Simplified outline of this Part
This Part sets out an arbitration framework applicable to disputes involving designated entities about proposed service agreements or access agreements. This framework sets out how arbitration may be requested, how arbitration is to be conducted, the matters relevant in arbitration determination and related matters such as costs.
This Part also provides for the ACCC to determine dispute resolution requirements for designated entities, and for the ACCC to require a designated entity to provide copies of the entity’s complaints handling and alternative dispute resolution policies or procedures.
A person who contravenes this Part may be liable to a civil penalty.
Division 2—Arbitration for service agreement or access agreement disputes
50 Dispute about proposed terms of service agreement or access agreement
(1) A dispute to which this Division applies arises if:
(a) a designated entity and a person who is proposed to be party to a service agreement or access agreement with the entity under which the entity would be the provider are unable to agree on one or more terms of the service agreement or access agreement; or
(b) all of the following apply:
(i) a designated entity and another person are parties to a service agreement or access agreement;
(ii) the entity is the provider for the agreement;
(iii) either or both of the parties are seeking to vary the agreement;
(iv) the parties are unable to agree on one or more terms of the variation.
(2) The entity and the other person mentioned in paragraph (1)(a) or (b) are the parties to the dispute.
51 Request for appointment of arbitrator
(1) A party to a dispute may request the ACCC to appoint an arbitrator for the dispute.
(2) If the other party agrees to the making of the request, the request may be for the appointment of a particular arbitrator agreed on by the parties.
Requirements for request
(3) A request for the appointment of an arbitrator for a dispute must be made in writing, and set out the following information:
(a) the names of the parties to the dispute;
(b) the nature of the dispute;
(c) what terms of a proposed service agreement or access agreement, or proposed variation of such an agreement, have not been agreed;
(d) what action has been taken to attempt to resolve the dispute;
(e) what outcome to the dispute the party is seeking;
(f) whether the request is made by the party with the agreement of the other party;
(g) if the appointment of a particular arbitrator is requested (see subsection (2))—the name and contact details of the arbitrator;
(h) any other information the party considers is relevant to the request.
Notification of other party
(4) If the request is made by a party without the agreement of the other party, the ACCC must notify the other party, in writing, of the request as soon as practicable after it is made.
(5) The notification must be accompanied by a written copy of the request.
52 Appointment of arbitrator
(1) The ACCC must appoint an arbitrator within 15 business days after receiving a request under section 51 if:
(a) both:
(i) the dispute relates to the provision of cash distribution services or facilities access by a designated entity; and
(ii) the entity does not have approved standard terms covering the cash distribution services or facilities access; or
(b) the ACCC is satisfied that the dispute could have a material effect on the availability of cash in Australia.
(2) However, the ACCC is not required to appoint an arbitrator if the ACCC is satisfied that the request:
(a) is frivolous or vexatious; or
(b) concerns a dispute that has previously been the subject of another arbitration.
(3) The ACCC may consult the parties on the arbitrator to be appointed.
(4) If the ACCC is to appoint an arbitrator under subsection (1) and the parties have requested the ACCC to appoint a particular arbitrator under subsection 51(2), the ACCC must appoint that arbitrator if it is reasonable to do so in the circumstances.
(5) The ACCC must give the parties to the dispute, in writing:
(a) details of the arbitrator appointed; or
(b) if the ACCC decides not to appoint an arbitrator—notice of that decision.
53 Conduct of arbitration
(1) The arbitrator must decide:
(a) how the arbitration is to be conducted (for example, by telephone or in meetings, including by means of virtual attendance technology); and
(b) the time and place for the arbitration; and
(c) the day the arbitration commences.
(2) The arbitration must be conducted in Australia.
(3) Within 5 business days after the arbitration has commenced, the arbitrator must notify the ACCC, in writing, that the arbitration has commenced.
Note: The arbitrator decides under paragraph (1)(c) when an arbitration commences.
(4) A person is liable to a civil penalty if:
(a) the person is a party to a dispute for which an arbitration is conducted under this Division; and
(b) the person fails to attend the arbitration.
Civil penalty: 300 penalty units.
54 Determination of terms by arbitrator
(1) The arbitrator must, within 15 business days after the completion of the arbitration:
(a) determine, in writing:
(i) the terms that are the subject of the dispute; and
(ii) the period during which those terms are required to be used in relation to the parties to the dispute; and
(b) give a copy of the determination to each party to the dispute; and
(c) give a copy of the determination to the ACCC.
(2) In making the determination, the arbitrator must consider the following matters:
(a) the object of this Act;
(b) the legitimate business interests of the designated entity;
(c) the public interest;
(d) the principle that the pricing of relevant services or access should:
(i) be set so as to generate expected revenue that is at least sufficient to meet the efficient costs of providing the cash distribution services or facilities access; and
(ii) include a return on investment commensurate with the regulatory and commercial risks involved; and
(iii) for facilities access—not discriminate in favour of the entity’s own downstream operations (in the case of a vertically integrated designated entity), or operations of a related body corporate, except to the extent that the cost of providing facilities access to other persons is higher; and
(iv) use methods that provide incentives to reduce costs incurred by or otherwise improve productivity of the entity;
(e) any relevant service‑level standard;
(ea) any relevant cash‑related contractual chain order;
(f) any requirements determined under subsection 60(1) (which deals with dispute resolution requirements);
(g) any other matters the arbitrator considers relevant.
(3) Subsection (1) does not apply if the arbitration has ended because of a termination under section 56.
(4) A determination made under subsection (1) is not a legislative instrument.
55 Arbitration determination must be complied with
(1) A designated entity is liable to a civil penalty if:
(a) a determination under subsection 54(1) applies in relation to entering into a services agreement or access agreement with another person; and
(b) the designated entity would be the provider under such an agreement; and
(c) either:
(i) the designated entity does not reasonably attempt to enter into such an agreement with the other person on the terms determined in the determination; or
(ii) the determination is not complied with in relation to the terms of the agreement.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
Civil penalty:
(a) for a body corporate—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(2) A designated entity is liable to a civil penalty if:
(a) a determination under subsection 54(1) applies in relation to varying a services agreement or access agreement with another person; and
(b) the designated entity is the provider for the services agreement or access agreement; and
(c) either:
(i) the designated entity does not reasonably attempt to enter into an agreement to vary the services agreement or access agreement on the terms determined in the determination; or
(ii) the determination is not complied with in relation to the terms of the variation.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
Civil penalty:
(a) for a body corporate—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(3) A failure to comply with subsection (1) or (2) in relation to an agreement or variation of an agreement does not affect the validity of the agreement or variation.
56 Termination of arbitration by arbitrator
(1) The arbitrator conducting an arbitration of a dispute under this Division may at any time terminate the arbitration (without making a determination under section 54) if:
(a) all the parties to the dispute jointly request the arbitrator to do so; or
(b) the arbitrator considers that, having regard to matters of which the arbitrator has become aware during the conduct of the arbitration:
(i) the request for appointment of an arbitrator was vexatious; or
(ii) the subject matter of the dispute is trivial, misconceived or lacking in substance; or
(c) the party who requested the appointment of an arbitrator has not engaged in negotiations in good faith.
(2) Before deciding to terminate the arbitration (other than because of a joint request from all of the parties), the arbitrator must consult with the ACCC.
(3) If the arbitrator terminates the arbitration, the arbitrator must issue a certificate stating:
(a) the names of the parties to the dispute; and
(b) the nature of the dispute that was the subject of the arbitration; and
(c) that the arbitration has been terminated; and
(d) that the dispute has not been resolved; and
(e) the reason for terminating the arbitration.
(4) The arbitrator must give a copy of the certificate to:
(a) the ACCC; and
(b) each party to the dispute.
(5) A certificate issued under subsection (3) is not a legislative instrument.
57 Costs of arbitration
(1) Each party to a dispute that was the subject of an arbitration conducted under this Division must pay half of all reasonable costs (if any) associated with the conduct of the arbitration, unless:
(a) the parties to the dispute agree otherwise; or
(b) the arbitrator makes a determination under subsection (3) regarding the costs.
(2) Despite subsection (1), each party to a dispute that was the subject of an arbitration conducted under this Division must pay that party’s costs of attending the arbitration, unless:
(a) the parties agree otherwise; or
(b) the arbitrator makes a determination under subsection (3) regarding the costs.
(3) The arbitrator may determine, in writing, either or both of the following matters if the arbitrator considers it appropriate to do so:
(a) that the reasonable costs associated with the conduct of the arbitration are to be apportioned in a specified way;
(b) that a party to the dispute is to pay the whole of the costs, or specified costs, of the other party to the dispute attending the arbitration.
(4) In deciding whether to make a determination under subsection (3), the arbitrator must have regard to:
(a) which party to the dispute requested the ACCC to appoint an arbitrator (or whether the appointment was requested on the agreement of the parties); and
(b) the outcome of the arbitration.
(5) A determination made under subsection (3) is not a legislative instrument.
58 Confidentiality requirements
A person is liable to a civil penalty if:
(a) the person is a party to a dispute for which an arbitration is conducted under this Division; and
(b) confidentiality requirements apply in relation to information disclosed or obtained in connection with the arbitration; and
(c) the person fails to observe any of those requirements.
Civil penalty: 600 penalty units.
59 Guidelines about conduct of arbitration
(1) The ACCC may, in writing, make guidelines relating to the conduct of an arbitration under this Division.
(2) However, the guidelines must not relate to information to be included in:
(a) a request under section 51 for the appointment of an arbitrator; or
(b) the content of a determination under section 54; or
(c) the content of submissions made by parties in the course of the arbitration.
(3) An arbitrator must take the guidelines into account in conducting an arbitration under this Division.
(4) However, a failure by an arbitrator to take the guidelines into account in conducting an arbitration does not affect the validity of the arbitration or any aspect of the arbitration.
(5) The ACCC must publish the guidelines on its website as soon as practicable after they are made.
(6) Guidelines made under subsection (1) are not a legislative instrument.
Division 3—Dispute resolution requirements
60 ACCC may determine dispute resolution requirements
(1) The ACCC may, by legislative instrument, determine requirements that apply to:
(a) one or more specified designated entities; or
(b) a specified class of designated entities; or
(c) all designated entities.
(2) The requirements must relate to:
(a) internal complaints handling processes of the designated entities for complaints regarding the provision or proposed provision of cash distribution services or facilities access by the designated entities; or
(b) alternative dispute resolution procedures for disputes regarding the provision or proposed provision of cash distribution services or facilities access by the designated entities.
(3) In determining requirements under subsection (1), the ACCC must have regard to the object of this Act.
Civil penalty provision
(4) A designated entity is liable to a civil penalty if:
(a) a requirement determined under subsection (1) applies to the entity; and
(b) the entity fails to comply with the requirement.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
61 ACCC may require designated entity to give copy of complaints handling and alternative dispute resolution policies or procedures
(1) The ACCC may, by written notice given to a designated entity, require the entity to give the ACCC a copy of any policies or procedures of the entity that deal with either or both of the following matters in connection with its provision of cash distribution services or facilities access:
(a) internal complaints handling processes;
(b) alternative dispute resolution.
(2) The entity must give the copies within 10 business days after the notice is given.
(3) A designated entity is liable to a civil penalty if:
(a) the entity is required to give documents in accordance with a notice under subsection (1); and
(b) the entity fails to comply with the requirement within the period required by subsection (2).
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Civil penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—60 penalty units.
Part 5—Service‑level standards
Division 1—Preliminary
62 Simplified outline of this Part
This Part provides for the ACCC to make service‑level standards that relate to the provision of cash distribution services or facilities access.
Certain powers are provided to the ACCC for the purposes of regulating the application of, and compliance with, service‑level standards, including the ability to grant exemptions.
A person who contravenes this Part may be liable to a civil penalty.
Division 2—Service‑level standards
63 Service‑level standards
(1) The ACCC may, by legislative instrument, determine standards (service‑level standards) relating to the provision of cash distribution services or facilities access in Australia by:
(a) one or more specified designated entities; or
(b) a specified class of designated entities; or
(c) all designated entities.
(2) Without limiting the matters to which the service‑level standards may relate, those matters include the following:
(a) the availability, frequency, speed, timeliness or location of cash distribution services or facilities access;
(b) pricing relating to cash distribution services or facilities access;
(c) the availability or accessibility of relevant facilities involved in the provision of cash distribution services;
(d) service agreements or access agreements;
(e) reporting of information to the ACCC in relation to cash distribution services or facilities access.
(3) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, the service‑level standards may make different provision in relation to:
(a) different, or different classes of, designated entities; or
(b) different, or different classes of, cash distribution services or facilities access; or
(c) different classes of service agreements or access agreements; or
(d) different locations; or
(e) different circumstances.
(4) In making service‑level standards, the ACCC must have regard to:
(a) the object of this Act; and
(b) the public interest; and
(c) any relevant cash‑related contractual chain order.
(5) Without limiting who the ACCC may consult, before making a service‑level standard the ACCC may consult the Fair Work Commission or the Fair Work Ombudsman in relation to interactions with any relevant cash‑related contractual chain orders.
64 Application of service‑level standards to service agreements or access agreements
(1) A service‑level standard does not apply in relation to a service agreement or access agreement to the extent that it would impose requirements in relation to such an agreement entered into before the requirements are imposed.
(2) Subsection (1) applies until such time (if any) as an agreement to vary the service agreement or access agreement is entered into.
65 Publication of information by the ACCC
The ACCC may publish, on its website, information that has been reported to it under a service‑level standard if it considers it is appropriate to do so.
66 Directions to comply with service‑level standard
(1) The ACCC may, by written notice given to a designated entity, direct the entity to take specified action to comply with a service‑level standard if:
(a) the standard applies to the entity; and
(b) the ACCC reasonably believes the entity has failed to comply, is failing to comply, or will fail to comply with the standard.
Note: A decision to give a direction under this subsection is a reviewable decision (see Division 2 of Part 10).
(2) The entity must comply with the direction:
(a) within the time specified in the direction, which must be a reasonable time; or
(b) if the direction does not specify a reasonable time—within a reasonable time.
Note: Failure to comply with a direction may result in a designated entity being liable to a civil penalty: see subsection 67(3).
(3) The ACCC may extend the time for complying with the direction by written notice given to the entity.
(4) A direction under this section is not a legislative instrument.
67 Civil penalties relating to service‑level standards
Failure to comply with service‑level standards
(1) A designated entity is liable to a civil penalty if:
(a) a service‑level standard applies to the entity; and
(b) the entity fails to comply with the standard.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
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.
(2) Subsection (1) does not apply if:
(a) an exemption is in force under section 68 in relation to the entity; and
(b) either:
(i) the exemption covers the entity’s compliance with the standard generally; or
(ii) the failure to comply with the standard arose in relation to a requirement covered by the exemption.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
Failure to comply with direction given by ACCC
(3) A designated entity is liable to a civil penalty if:
(a) the entity is given a direction under section 66; and
(b) the entity fails to comply with the direction.
Note 1: An individual may be liable for an ancillary contravention of this civil penalty provision (see section 92 of the Regulatory Powers Act).
Note 2: This subsection is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.
Note 3: There is an exception to this civil penalty provision in section 195A (interactions with cash‑related contractual chain orders).
Civil penalty:
(a) for a body corporate—300 penalty units.
(b) for an individual—60 penalty units.
(4) Subsection (3) does not apply if:
(a) an exemption is in force under section 68 in relation to the entity; and
(b) either:
(i) the exemption covers the entity’s compliance with the standard generally; or
(ii) the failure to comply with the direction arose in relation to a requirement of a service‑level standard covered by the exemption.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
68 Exemption from complying with service‑level standards
(1) The ACCC may grant a particular designated entity an exemption in relation to specified service‑level standards:
(a) on written application by the entity; or
(b) on the ACCC’s own initiative.
Note: A decision to grant, or to refuse to grant, an exemption under this subsection is a reviewable decision (see Division 2 of Part 10).
(2) The exemption may apply in relation to:
(a) the service‑level standards generally; or
(b) one or more specified requirements of the service‑level standards.
(3) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, the exemption may make different provision in relation to:
(a) different cash distribution services; or
(b) different classes of service agreements or access agreements; or
(c) different locations; or
(d) different circumstances.
(4) The exemption:
(a) must be made in writing; and
(b) must specify a period of 12 months or less for which the exemption is in force; and
(c) may be subject to conditions specified in the exemption.
(5) The entity must be given a copy of the exemption as soon as practicable after it is made.
Part 6—Crisis readiness
Division 1—Preliminary
69 Simplified outline of this Part
This Part imposes obligations on certain persons to assist the Reserve Bank and other relevant persons to manage the preparation of a designated entity, and in some situations a related body corporate of a designated entity, for a crisis situation. The Reserve Bank is given powers under this Part to identify, monitor and respond to risks that could threaten the continuity of critical cash distribution services.
A designated entity has an obligation to notify the Reserve Bank if the entity becomes aware of certain changes to the entity’s circumstances or of a factor that may affect the entity’s ability to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia. The Reserve Bank has a power to make notification rules to require entities to notify additional events or matters.
The Reserve Bank may determine cash distribution standards for the purposes of maintaining the continuity of critical cash distribution services.
The Reserve Bank may determine resolvability standards and undertake resolution planning in connection with managing or responding to certain crisis conditions.
This Part also provides for the Reserve Bank to make assessments about compliance with those standards.
The Reserve Bank has powers to ensure compliance with this Part, to investigate non‑compliance and to enforce this Part. Enforcement mechanisms include civil and criminal penalties.
Division 2—Gathering information
70 Obligation to notify Reserve Bank of certain matters
(1) A body corporate contravenes this subsection if:
(a) the body corporate is a designated entity; and
(b) the body corporate fails to give a written notice to the Reserve Bank, or to do so in the approved form (if any), immediately after becoming aware that:
(i) the body corporate has failed to comply with one or more cash distribution standards, or is likely to fail to comply with such standards; or
(ii) the body corporate has failed to comply with one or more resolvability standards, or is likely to fail to comply with such standards; or
(iii) the body corporate has ceased, intends to cease or is likely to cease providing one or more cash distribution services that are critical to the availability of cash in Australia; or
(iv) the body corporate has reduced, intends to reduce or is likely to reduce, the body corporate’s provision of one or more cash distribution services that are critical to the availability of cash in Australia; or
(v) the body corporate’s financial viability is at risk or is likely to be at risk, such that the body corporate’s ability to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia might be affected.
Fault‑based offence
(2) 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
(3) 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.
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;
the act is invalid and of no effect.
(6) However, the contravention is disregarded for the purpose of subsection (5) if the Reserve Bank decides that it is appropriate to disregard the contravention for that purpose, on application made by the body corporate:
(a) in writing; and
(b) in the approved form (if any).
(7) The Reserve Bank must give written notice to the body corporate of the Reserve Bank’s decision on the application.
72 Notice of any other material changes in circumstances
(1) A body corporate (the body) contravenes this subsection if:
(a) the body is:
(i) a designated entity; or
(ii) 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 becoming aware of a material change in circumstances of the body that:
(i) relate to the designated entity’s ability to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia, or if the body is the designated entity, relate to risk management; and
(ii) are circumstances to which subsection (2) applies.
(2) For the purposes of subparagraph (1)(b)(ii), this subsection applies to circumstances that affect any of the following:
(a) the solvency of the body;
(b) voting power in the body (but see subsections (3) and (4));
(c) the structure of the body;
(d) the structure of the group (if any) consisting of:
(i) the body; and
(ii) each related body corporate of the body;
(e) the provision of one or more cash distribution services that are critical to the availability of cash in Australia.
Change in voting power in listed related body corporate
(3) Subsection (4) applies to a body corporate that is:
(a) a related body corporate of a designated entity; and
(b) a listed body.
(4) For the purpose of this section, a change in voting power in the body is a material change in circumstances of the body if, and only if:
(a) before the change, a particular person held:
(i) no voting power in the body; or
(ii) less than 20% of the voting power in the body; and
(b) after the change, the person holds at least 20% of that voting power.
Changes already notified to Reserve Bank
(5) Subsection (1) does not apply for a material change in circumstances of the body if the body has already notified the Reserve Bank of that change under another provision of this Division.
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
(6) 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
(7) 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.
73 Notification of appointment of external administrator of designated entity
(1) A person who is considering appointing an external administrator of a body corporate that is a designated entity must give a written notice to the Reserve Bank, and do so in the approved form (if any).
(2) The Reserve Bank may, by notice in writing given to the person, approve the appointment.
(3) A person contravenes this subsection if:
(a) the person appoints an external administrator of a designated entity; and
(b) neither of the following applies:
(i) the Reserve Bank approved the appointment under subsection (2);
(ii) notification under subsection (1) regarding the appointment was given at least 7 days before the appointment was made.
Strict liability offence
(4) A person commits an offence of strict liability if the person contravenes subsection (3).
Penalty:
(a) for a body corporate—600 penalty units; and
(b) for an individual—60 penalty units.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (3).
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
(6) If:
(a) the body corporate is incorporated in Australia; and
(b) a purported external administrator of the body corporate, appointed in contravention of subsection (3), purports to act in relation to the body corporate’s business;
those acts are invalid and of no effect.
74 Notification of appointment of external administrator of related body corporate of designated entity
(1) A body corporate contravenes this subsection if:
(a) the body corporate is a designated entity; and
(b) the designated entity becomes aware that a person is considering appointing, or has appointed, an external administrator of a body corporate that is a related body corporate of the designated entity and is incorporated in Australia; and
(c) the designated entity fails to give a written notice to the Reserve Bank, or to do so in the approved form (if any), of that matter as soon as practicable after becoming aware of it.
Strict liability offence
(2) A person commits an offence of strict liability 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—600 penalty units; and
(b) for an individual—60 penalty units.
Civil penalty provision
(3) 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.
75 Notification from liquidator and request for information about winding up
(1) A liquidator, or a provisional liquidator, of a body corporate that:
(a) is a designated entity; or
(b) is a related body corporate of a designated entity and is incorporated in Australia;
must give written notice to the Reserve Bank, at least 7 days before making an application to the Court in relation to a matter arising under the winding‑up of the body corporate.
(2) Subsection (1) does not apply in relation to a related body corporate of a designated entity unless the application would affect the ability of the designated entity to continue to provide one or more cash distribution services.
(3) A notice under subsection (1) must include details of the proposed application.
(4) The Reserve Bank is entitled to be heard on the application to the Court.
Information request
(5) The Reserve Bank may request the liquidator or provisional liquidator to give, within a reasonable time specified in the request, specified information in writing about:
(a) the application; or
(b) other matters relating to the winding‑up, or proposed winding up, of the body corporate; or
(c) the affairs of the body corporate.
(6) The liquidator or provisional liquidator must comply with the request.
76 Reserve Bank may make notification rules
Making notification rules
(1) The Reserve Bank may, by legislative instrument, make rules (notification rules) for and in relation to requiring one or more specified designated entities to:
(a) notify the Reserve Bank of certain matters or events; or
(b) provide to the Reserve Bank information or documents relating to such matters or events.
(2) Without limiting subsection (1), the notification rules may do any or all of the following:
(a) specify the manner and form in which notifications are to be made, or information or documents are to be provided;
(b) provide for notifications to be made, or information or documents to be provided:
(i) as and when required by the Reserve Bank; or
(ii) on the basis of a standing request, which may be triggered at specified intervals or by the occurrence of specified events;
(c) provide for notifications to be made, or information or documents to be provided, a specified minimum period in advance of a planned or anticipated event.
Procedural matters
(3) If notification rules apply to a designated entity, the Reserve Bank must give the entity a copy of those rules.
(4) The Reserve Bank must not exercise its powers under this section so as to require the notification of matters or events, or the provision of information or documents, unless the Reserve Bank reasonably believes that the requirements will enable the Reserve Bank to identify, monitor and respond to risks that could threaten the continued provision of a designated entity’s cash distribution services.
Compliance with notification rules
(5) A body corporate contravenes this subsection if:
(a) the body corporate is a designated entity; and
(b) notification rules apply to the body corporate; and
(c) the body corporate fails to comply with those rules.
(6) Subsection (5) does not apply to the extent that notification rules:
(a) require the body corporate to notify an event or matter that is not within the knowledge or control of the body corporate; or
(b) require the body corporate to provide information that:
(i) is not within the knowledge or control of the body corporate; or
(ii) cannot reasonably be ascertained by the body corporate.
(c) require the body corporate to provide documents that are not within the knowledge or control of the body corporate.
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
(7) A person commits an offence if the person contravenes subsection (5).
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
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
Division 3—Cash distribution standards, resolvability standards and resolution planning
77 Reserve Bank may determine cash distribution standards
The Reserve Bank may, by legislative instrument, determine standards for designated entities for the purposes of maintaining the continuity of cash distribution services that are critical to the availability of cash in Australia.
Note 1: A standard may be determined in relation to all designated entities or to one or more classes of them (see subsection 33(3A) of the Acts Interpretation Act 1901).
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
78 Reserve Bank may determine resolvability standards
The Reserve Bank may, by legislative instrument, determine standards for the purposes of ensuring:
(a) designated entities; and
(b) related bodies corporate of designated entities, being related bodies corporate that are incorporated in Australia;
conduct their affairs in a way that would assist the Reserve Bank to manage or respond to a condition in section 90 being satisfied in relation to a designated entity.
Note 1: A standard may be determined in relation to all designated entities and related bodies corporate, or to one or more classes of them (see subsection 33(3A) of the Acts Interpretation Act 1901).
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
79 Standards—compliance, consultation and inconsistencies
(1) A body corporate contravenes this subsection if:
(a) the body corporate:
(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 corporate is subject to a standard determined under this Division; and
(c) the body corporate fails to comply with the standard.
Fault‑based offence
(2) 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
(3) 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.
Consultation and inconsistencies
(4) Before the Reserve Bank determines or varies a standard under this Division, it must consult with the designated entities that will be required to comply with the standard, or the standard as varied, as applicable.
(5) If there is an inconsistency between the resolvability standards and either the service‑level standards or the cash distribution standards, the resolvability standards prevail to the extent of the inconsistency.
(6) If there is an inconsistency between the cash distribution standards and the service‑level standards, the cash distribution standards prevail to the extent of the inconsistency.
80 Reserve Bank assessment of compliance with standards
(1) The Reserve Bank may do an assessment of how well:
(a) a designated entity is complying with cash distribution standards; or
(b) a designated entity, or a related body corporate of a designated entity, is complying with resolvability standards.
(2) In doing the assessment, the Reserve Bank may take account of any information and reports that it thinks appropriate.
(3) If an assessment, or part of an assessment, relates to any other person’s affairs to a material extent, the Reserve Bank may, at the person’s request or of its own initiative, give the person a copy of the written report on the assessment or the relevant part of the report.
(4) If an assessment, or part of an assessment, relates to a serious contravention of a law of the Commonwealth or of a State or Territory, the Reserve Bank may give a copy of the written report on the assessment, or the relevant part of the report, to:
(a) the Australian Federal Police; or
(b) the Chief Executive Officer of the Australian Crime Commission established by the Australian Crime Commission Act 2002; or
(c) a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or
(d) the Director of Public Prosecutions.
81 Resolution planning
(1) The Reserve Bank may make a plan for the event that a condition in section 90 is satisfied in relation to a designated entity.
(2) If the Reserve Bank makes a plan under subsection (1), the Reserve Bank may review, vary or revoke the plan.
(3) In making, reviewing, varying or revoking a plan under this section, the Reserve Bank may take account of any information that the Reserve Bank considers appropriate.
(4) A plan made under this section is not a legislative instrument.
Division 4—Directions
82 Reserve Bank’s directions power—directions to increase compliance, reduce risks or enhance resolvability
(1) The Reserve Bank may, by written notice given to a body corporate, direct the body corporate (the directed body) to take specified action mentioned in subsection (2) or (3) if the body corporate:
(a) is a designated entity; or
(b) is a related body corporate of a designated entity and is incorporated in Australia.
Note: A decision to give a direction under this subsection is a reviewable decision (see Division 2 of Part 10).
(2) If the directed body is a designated entity, the action required by the direction (which may include action to do an act or thing, or refrain from doing an act or thing) may be:
(a) specified action that the Reserve Bank reasonably believes will promote compliance by the directed body with its obligations under Division 2 of this Part, or Division 4 of Part 8, if the Reserve Bank reasonably believes that the directed body is not complying or is not likely to comply with those obligations; or
(b) specified action to reduce risks to the continued provision of the directed body’s cash distribution services, if the Reserve Bank reasonably believes that the directed body has not done, or is unlikely to do, all things reasonably practicable to minimise those risks.
(3) Whether the directed body is a designated entity or a related body corporate of a designated entity, the action required by the direction (which may include action to do an act or thing, or refrain from doing an act or thing) may be:
(a) specified action to comply with all or part of one or more standards in force under Division 3, if the Reserve Bank reasonably believes that the directed body is not complying with those standards or parts; or
(b) specified action to manage or resolve an impediment to the effective management of or response to a condition in section 90 being satisfied in relation to:
(i) the directed body; or
(ii) the directed body’s cash distribution services; or
(iii) the cash distribution services of a related body corporate, of the directed body, that is incorporated in Australia;
if the Reserve Bank reasonably believes that the directed body has not done, or is unlikely to do, all things reasonably practicable to manage or resolve the impediment.
(4) The direction must specify a reasonable time by which, or a reasonable period during which, it is to be complied with.
Complying with directions
(5) A body corporate contravenes this subsection if:
(a) the body corporate is given a direction under subsection (1); and
(b) the body corporate fails to comply with the direction.
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
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.
(7) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (6) of this section.
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
(9) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (8) of this section.
83 Reserve Bank’s directions power—directions relating to designated entity’s conduct of affairs
(1) The Reserve Bank may, by written notice given to a body corporate that is a designated entity, direct the body corporate (the directed body) to take specified action mentioned in subsection (2) or (3).
(2) The action required by the direction (which may include action to do an act or thing, or refrain from doing an act or thing) may be specified action that the Reserve Bank reasonably believes, for cash distribution services that:
(a) the directed body provides; and
(b) are critical to the availability of cash in Australia;
will reduce potential threats to the directed body’s continued provision of those services, if the Reserve Bank reasonably believes that the directed body is conducting, or likely to conduct, its affairs in a way that is likely to threaten that continued provision of cash distribution services.
(3) The action required by the direction (which may include action to do an act or thing, or refrain from doing an act or thing) may be specified action that the Reserve Bank reasonably believes will prevent, or lessen the effects of, a reduction of a cash distribution service provided by the directed body, if the Reserve Bank reasonably believes that:
(a) the directed body is conducting, or likely to conduct, its affairs in a way that will, or is likely to, result in a reduction of a cash distribution service that is critical to the availability of cash in Australia; and
(b) the reduction is likely to have a material adverse effect on the availability of cash in Australia.
(4) The direction must specify a reasonable time by which, or a reasonable period during which, it is to be complied with.
Complying with directions
(5) A body corporate contravenes this subsection if:
(a) the body corporate is given a direction under subsection (1); and
(b) the body corporate fails to comply with the direction.
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
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.
(7) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (6) of this section.
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
(9) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (8) of this section.
84 Variation or revocation of directions
(1) The Reserve Bank may, by written notice given to a body corporate:
(a) vary a direction given under section 82 or 83 to the body corporate if, at the time of variation, the Reserve Bank reasonably believes the variation is necessary or appropriate; or
(b) revoke such a direction if, at the time of revocation, the Reserve Bank reasonably believes the direction is no longer necessary or appropriate.
Note: A decision under this subsection to vary or revoke a direction given under section 82 is a reviewable decision (see Division 2 of Part 10).
(2) A direction given under section 82 or 83 has effect until the Reserve Bank revokes it under subsection (1) of this section.
85 Publishing details about directions
The Reserve Bank may publish on its website details of, or relating to:
(a) a direction given under section 82 or 83; or
(b) a variation or revocation of such a direction.
86 Failure by officers to take reasonable steps to ensure compliance with directions
(1) An officer of a body corporate contravenes this subsection if:
(a) the officer fails to take reasonable steps to ensure that the body corporate complies with a direction given to it under section 82 or 83; and
(b) it would be reasonable to expect that the officer’s duties include ensuring that the body corporate complies with that direction.
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
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
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
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.
87 Protection from liability for compliance in good faith with directions
(1) An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person if:
(a) the person does the thing, or omits to do the thing, for the purpose of any of the following:
(i) complying with a direction given under this Division by the Reserve Bank;
(ii) taking a measure, or an action, specified in such a direction;
(iii) doing, or refraining from doing, anything in accordance with such a direction; and
(b) it is reasonable for the person to do the thing, or to omit to do the thing, in order to achieve that purpose; and
(c) the person is any of the following:
(i) an officer or senior manager of the body corporate, or of a related body corporate;
(ii) an employee or agent of the body corporate, or of a related body corporate;
(iii) the body corporate or a related body corporate;
(iv) a person engaged to provide services (including advice) to the body corporate or a related body corporate.
(2) For the purposes of paragraph (1)(b), treat it as reasonable for a person to do a thing, or to omit to do a thing, in order to achieve a purpose unless no reasonable person in that person’s position would do the thing, or omit to do the thing, in order to achieve that purpose.
88 Exercise of Reserve Bank powers to give direction under section 83 not grounds for denial of obligations
(1) Subject to subsection (4), this section applies if a body corporate (the protected body corporate) is party to an arrangement, whether the proper law of the arrangement is:
(a) a law of the Commonwealth or of a State or Territory; or
(b) a law of a foreign country or a part of a foreign country.
(2) The protected body corporate being subject to the exercise of a power under section 83 by the Reserve Bank does not allow the arrangement, or a party to the arrangement (other than the protected body corporate), to do any of the following:
(a) deny any obligation under the arrangement;
(b) accelerate any debt under the arrangement;
(c) terminate or close out:
(i) the arrangement; or
(ii) any transaction relating to the arrangement;
(d) enforce any security under the arrangement.
Person must not act contrary to this section
(3) A party to the arrangement (other than the protected body corporate) must not:
(a) purport to do an act or thing that is not allowed to be done because of this section; or
(b) purport to do an act or thing that can be done only if the arrangement does a thing that the arrangement is not allowed to do because of this section; or
(c) omit to do an act or thing in circumstances where that omission would only be required or permitted if the arrangement did a thing that the arrangement is not allowed to do because of this section.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
Payment Systems and Netting Act 1998 prevails over this section
(4) If there is any inconsistency between:
(a) subsections (1) to (3) of this section; and
(b) the Payment Systems and Netting Act 1998;
that Act prevails to the extent of the inconsistency.
Arrangements to which this section does not apply
(5) This section does not apply to a kind of arrangement specified in an instrument made under subsection (6).
(6) The Reserve Bank may, by legislative instrument, make a determination specifying kinds of arrangements for the purposes of subsection (5).
Part 7—Crisis resolution
Division 1—Preliminary
89 Simplified outline of this Part
The Reserve Bank may take actions under this Part that are appropriate to manage or respond to a designated entity in crisis.
A designated entity is in crisis if certain conditions are met in relation to the entity (see section 90). These conditions relate to acts or events that are likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia.
Some of the conditions relate to related bodies corporate of the designated entity.
The actions the Reserve Bank may take include:
(a) placing the designated entity, or a related body corporate that is incorporated in Australia, under statutory management; and
(b) compulsorily transferring all or part of the shares of, or business of, the designated entity, or a related body corporate that is incorporated in Australia, to another body corporate; and
(c) directing the designated entity, or a related body corporate that is incorporated in Australia, to do or refrain from doing an act or thing.
If a body corporate is under statutory management or subject to a transfer or direction, a moratorium and stays apply to the body corporate.
The Minister, with the Finance Minister’s approval, may make an arrangement and authorise the payment of a specified amount if certain conditions are met in relation to the entity (see section 90) and it is for the purposes of ensuring the continuity of critical cash distribution services.
The Reserve Bank has powers to ensure compliance with this Part, to investigate non‑compliance and to enforce this Part. Enforcement mechanisms include civil and criminal penalties.
Division 2—Triggers for crisis powers
90 Reserve Bank may exercise crisis resolution powers if certain conditions are satisfied
The Reserve Bank may take action in accordance with this Part in relation to a designated entity if any of the following conditions are satisfied in relation to the designated entity:
(a) both:
(i) the designated entity requests the Reserve Bank to take action; and
(ii) the Reserve Bank reasonably believes that an event relating to the designated entity is likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(b) both:
(i) the designated entity contravenes a direction issued under Part 6 by the Reserve Bank; and
(ii) the Reserve Bank reasonably believes that the contravention is likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(c) the designated entity notifies the Reserve Bank that:
(i) the designated entity has ceased, intends to cease or is likely to cease providing one or more cash distribution services that are critical to the availability of cash in Australia; or
(ii) the designated entity is likely to be unable to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(d) the Reserve Bank reasonably believes that the designated entity is likely to be unable to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(e) both:
(i) the designated entity notifies the Reserve Bank, or the Reserve Bank reasonably believes, that the designated entity has reduced, intends to reduce or is likely to reduce the designated entity’s provision of one or more cash distribution services that are critical to the availability of cash in Australia; and
(ii) the Reserve Bank reasonably believes that the reduction has had, will have or is likely to have a material adverse effect on the availability of cash in Australia;
(f) the designated entity notifies the Reserve Bank that the designated entity’s financial viability is at risk or is likely to be at risk;
(g) the Reserve Bank reasonably believes that the designated entity’s financial viability is likely to be at risk;
(h) an external administrator of the designated entity has been appointed;
(i) the designated entity notifies the Reserve Bank that it is considering appointing an external administrator of the designated entity;
(j) the Reserve Bank reasonably believes that a person is seeking to have an external administrator of the designated entity appointed;
(k) both:
(i) an external administrator of a related body corporate of the designated entity has been appointed; and
(ii) the Reserve Bank reasonably believes that the appointment is likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(l) both:
(i) the Reserve Bank reasonably believes that a person is seeking to have an external administrator of a related body corporate of the designated entity appointed; and
(ii) the Reserve Bank reasonably believes that the appointment is likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia;
(m) both:
(i) the designated entity, or a related body corporate of the designated entity that is incorporated in Australia, is doing or not doing any act or thing; and
(ii) the Reserve Bank reasonably believes this is likely to pose a threat to the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia.
Division 3—Directions relating to managing or responding to crisis
91 Reserve Bank’s directions power—manage or respond to crisis
(1) The Reserve Bank may, in writing, give a person a direction to do, or refrain from doing, specified acts or things, if:
(a) the person:
(i) is a body corporate that is a designated entity; or
(ii) is a related body corporate of a designated entity and is incorporated in Australia; or
(iii) was a related body corporate of a designated entity before a transfer of business or shares under this Part and is incorporated in Australia; or
(iv) is an officer of a body corporate covered by subparagraph (i), (ii) or (iii); and
(b) the Reserve Bank reasonably believes that the direction is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the entity.
(2) The direction may deal with the time by which, or period during which, it is to be complied with.
Fault‑based offence
(3) A person commits an offence if:
(a) the person is given a direction under subsection (1); and
(b) the person fails to comply with the direction.
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.
(4) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (3) of this section.
Civil penalty provision
(5) A person is liable to a civil penalty if:
(a) the person is given a direction under subsection (1); and
(b) the person fails to comply with the direction.
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.
(6) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (5) of this section.
Compliance despite other laws etc.
(7) A person who is given a direction under subsection (1) may do, or refrain from doing, an act or thing to comply with the direction despite all of the following:
(a) this Act (other than subsection 200(3)) or any legislative instrument made under this Act;
(b) the Corporations Act 2001 or any legislative instrument made under that Act;
(c) the body corporate’s constitution;
(d) any arrangement to which the body corporate is party;
(e) any listing rules of a financial market in whose official list the body corporate is included.
92 Matters relating to Reserve Bank directions—manage or respond to crisis
Variation or revocation
(1) The Reserve Bank may, in writing, vary a direction given under subsection 91(1) if the Reserve Bank reasonably believes that the direction, as varied, would be appropriate to manage or respond to a condition in section 90 being satisfied in relation to the relevant designated entity.
(2) The Reserve Bank may revoke a direction given under subsection 91(1) if the Reserve Bank no longer reasonably believes that the direction is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the relevant designated entity, including because the condition is not satisfied.
(3) The variation or revocation must be given to the person in writing.
Directions are not legislative instruments
(4) A direction given under subsection 91(1), a variation under subsection (1) of this section or a revocation under subsection (2) of this section is not a legislative instrument.
Division 4—Statutory manager
Subdivision A—Statutory management of body corporate in relation to a designated entity in crisis
93 Statutory manager takes control of body corporate
(1) The Reserve Bank may take either or both of the actions in subsection (2), if the Reserve Bank reasonably believes that the action is appropriate to manage or respond to a condition in section 90 being satisfied in relation to a designated entity.
(2) The actions are:
(a) taking control of the business of the designated entity as statutory manager of the designated entity; and
(b) appointing one or more persons to take control of the business of the designated entity, as statutory manager of the designated entity.
Note: Section 109 deals with when there are 2 or more statutory managers of a body corporate (for example, when the Reserve Bank decides that both itself and another person are to take control as statutory manager).
(3) The Reserve Bank may take either or both of the actions in subsection (4), if:
(a) a statutory manager has taken control of the business of a designated entity, or the Reserve Bank intends that a statutory manager will take control of the business of a designated entity; and
(b) the Reserve Bank reasonably believes that the action is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the designated entity.
(4) The actions are:
(a) taking control of the business of a related body corporate of the designated entity, that is incorporated in Australia, as statutory manager of the related body corporate; and
(b) appointing one or more persons to take control of the business of a related body corporate of the designated entity, that is incorporated in Australia, as statutory manager of the related body corporate.
Note: Section 109 deals with when there are 2 or more statutory managers of a body corporate (for example, when the Reserve Bank decides that both itself and another person are to take control as statutory manager).
(5) If the Reserve Bank decides to take an action under subsection (1) or (3), the Reserve Bank must give the following, in writing, notice that a statutory manager will take, or is taking, control of the body corporate’s business:
(a) the body corporate;
(b) if the body is under external administration—the external administrator;
(c) the ACCC.
Note: The appointment of the external administrator is terminated when a statutory manager takes control of the body corporate’s business: see section 108.
Limits on individual exercise of powers
(6) At the time a statutory manager (other than the Reserve Bank) is appointed, the Reserve Bank may give the statutory manager a notice, in writing, specifying any limits or conditions on the manager performing functions or exercising powers individually.
(7) A notice under subsection (6) must also be given to each other statutory manager of the body corporate (other than the Reserve Bank) at that time.
Instruments are not legislative instruments
(8) An instrument made under this section is not a legislative instrument.
94 Termination of appointment of statutory manager
Termination of control by Reserve Bank
(1) The Reserve Bank may, in writing, decide to cease to be in control of the business of a body corporate as a statutory manager.
Note: The Reserve Bank may also decide under section 93 to appoint another statutory manager to take control of the body corporate’s business.
(2) The Reserve Bank must notify the body corporate in writing of the decision.
(3) If:
(a) the Reserve Bank has taken control of the business of a related body corporate of a designated entity under paragraph 93(4)(a) for the purpose of managing or responding to a condition in section 90 being satisfied in relation to the entity; and
(b) the designated entity ceases being under statutory management;
the Reserve Bank must decide under subsection (1) of this section to cease to be in control of the business of the related body corporate.
Termination of appointments of statutory managers
(4) The Reserve Bank may, in writing, terminate the appointment of a statutory manager of a body corporate.
Note: The Reserve Bank may also decide under section 93 to take control of the body corporate’s business or appoint another statutory manager to do so.
(5) The Reserve Bank must notify the body corporate and statutory manager in writing of the termination.
(6) If:
(a) the Reserve Bank appoints a statutory manager of a related body corporate of a designated entity under paragraph 93(4)(b) for the purpose of managing or responding to a condition in section 90 being satisfied in relation to the entity; and
(b) the designated entity ceases being under statutory management;
the Reserve Bank must, under subsection (4) of this section, terminate the appointment of the statutory manager of the related body corporate.
Notifying the ACCC
(7) A notice under subsection (2) or (5) must also be given by the Reserve Bank to the ACCC.
Instruments are not legislative instruments
(8) An instrument made under this section is not a legislative instrument.
95 When a statutory manager is in control
(1) A statutory manager takes control of a body corporate’s business:
(a) at the time specified in the notice given under subsection 93(5) as the time when the statutory manager takes control of the business (which must not be earlier than when the notice is given); or
(b) if the notice given under that subsection does not specify a time as the time when the statutory manager takes control of the business—at the time the notice is given.
(2) A statutory manager ceases to be in control of a body corporate’s business:
(a) if the statutory manager is the Reserve Bank and the Reserve Bank decides under subsection 94(1) to cease to be in control of the body corporate’s business:
(i) at the time specified in the notice given under subsection 94(2) as the time when the Reserve Bank ceases to be in control of the business (which must not be earlier than when the notice is given); or
(ii) if the notice given under subsection 94(2) does not specify a time as the time when the Reserve Bank ceases to be in control of the business—at the time the notice is given; or
(b) if the Reserve Bank terminates the appointment of the statutory manager under subsection 94(4):
(i) at the time specified in the notice given to the body corporate under subsection 94(5) as the time when the termination takes effect (which must not be earlier than when the notice is given); or
(ii) if the notice given to the body corporate under subsection 94(5) does not specify a time as the time when the termination takes effect—at the time the notice is given.
(3) While a statutory manager is in control of a body corporate’s business, the body corporate is under statutory management.
(4) To avoid doubt, a body corporate does not cease to be under statutory management when a statutory manager of the body corporate is replaced with another statutory manager.
(5) The Public Governance, Performance and Accountability Act 2013 does not apply to a body corporate under statutory management.
Subdivision B—Powers of statutory manager
96 Role of the statutory manager
(1) While a statutory manager of a body corporate is in control of the business of the body corporate the statutory manager:
(a) has control of the body corporate’s business, property and affairs; and
(b) may carry on that business and manage that property and those affairs; and
(c) at the direction of or with the written consent of the Reserve Bank:
(i) may terminate or dispose of all or part of that business; and
(ii) may dispose of any of that property; and
(d) may perform any other function, and exercise any other power, that the body corporate or any of its officers could perform or exercise if a statutory manager were not in control of the body corporate’s business.
(2) Nothing in subsection (1) limits the generality of anything else in it.
Limitations
(3) This section does not permit the statutory manager to:
(a) alter the body corporate’s constitution or other arrangements for governance other than in accordance with section 98; or
(b) recapitalise other than in accordance with section 99; or
(c) effect a transfer of all or part of the shares in the body corporate or a total or partial transfer of the business of the body corporate, other than in accordance with Division 5 (compulsory transfers).
97 Powers to remove director etc.
Without limiting section 96, the statutory manager of a body corporate has power to do any of the following:
(a) remove from office a director of the body corporate;
(b) appoint a person as such a director, whether to fill a vacancy or not;
(c) execute a document, bring or defend proceedings, or do anything else, in the body corporate’s name and on its behalf;
(d) whatever else is necessary for the purposes of this Part.
98 Power to alter body corporate’s constitution etc.
(1) The statutory manager of a body corporate may alter the body corporate’s constitution or other arrangements for governance if the alteration is reasonably necessary for enabling or facilitating:
(a) the performance of the statutory manager’s functions and duties under this Part in relation to the body corporate; or
(b) the exercise of the statutory manager’s other powers under this Part in relation to the body corporate.
This section does not permit transfers of shares or business
(2) This section does not permit the statutory manager to effect a transfer of all or part of the shares in the body corporate or a total or partial transfer of the business of the body corporate, other than in accordance with Division 5 (compulsory transfers).
Exercise of powers despite other laws etc.
(3) A statutory manager may do an act under subsection (1) despite all of the following:
(a) this Act (other than subsection 200(3)) or any legislative instrument made under this Act;
(b) the Corporations Act 2001 or any legislative instrument made under that Act;
(c) the body corporate’s constitution;
(d) any arrangement to which the body corporate is party;
(e) any listing rules of a financial market in whose official list the body corporate is included.
99 Powers to facilitate recapitalisation
(1) A statutory manager of a body corporate may do one or more of the following acts on terms determined by the statutory manager, at the direction of or with the written consent of the Reserve Bank:
(a) increase the body corporate’s level of share capital to a level specified in the determination;
(b) issue one or more classes of shares, or one or more specified classes of rights to acquire shares, in the body corporate, being a class or classes specified in the determination;
(c) issue capital instruments;
(d) acquire, cancel or sell:
(i) shares in the body corporate; or
(ii) rights to acquire shares in the body corporate;
(e) reduce the body corporate’s share capital;
(f) vary or cancel rights or restrictions attached to shares in a class of shares in the body corporate.
Notice to members
(2) As soon as practicable after the statutory manager does an act under subsection (1), the statutory manager must give a written notice:
(a) to the persons who were members of the body corporate just before the act; and
(b) that:
(i) identifies the act; and
(ii) explains the effect of the act on the members’ interests.
(3) A contravention of subsection (2) does not affect the validity of anything done under subsection (1).
This section does not permit transfers of shares or business
(4) This section does not permit the statutory manager to effect a transfer of all or part of the shares in the body corporate, or a total or partial transfer of the business of the body corporate, other than in accordance with Division 5 (compulsory transfers).
Exercise of powers despite other laws etc.
(5) A statutory manager may do an act under subsection (1) despite all of the following:
(a) this Act (other than subsection 200(3)) or any legislative instrument made under this Act;
(b) the Corporations Act 2001 or any legislative instrument made under that Act;
(c) the body corporate’s constitution;
(d) any arrangement to which the body corporate is party;
(e) any listing rules of a financial market in whose official list the body corporate is included.
100 Statutory manager may request information etc. to be given
(1) A statutory manager of a body corporate may, in writing, request a person to whom subsection (2) applies to:
(a) attend on the statutory manager; or
(b) give the statutory manager any information relating to the body corporate’s:
(i) business, assets and other property; and
(ii) affairs and financial circumstances;
that the statutory manager reasonably believes would assist the statutory manager in performing the statutory manager’s functions, or exercising the statutory manager’s powers; or
(c) allow the statutory manager to inspect and take copies of the body corporate’s books;
at the times and in the manner reasonably required by the statutory manager.
(2) This subsection applies to a person who:
(a) is an officer of the body corporate; or
(b) was an officer of the body corporate:
(i) at any time when the body corporate was under statutory management; or
(ii) any time occurring during the 3 years ending when the body corporate began to be under statutory management.
(3) A request to give information may include a request to produce books, accounts or documents.
(4) A person contravenes this subsection if:
(a) the person is given a request under subsection (1); and
(b) the person fails to comply with the request.
(5) Subsection (4) does not apply to the extent that the person is not capable of complying with the request because the information:
(a) is not within the knowledge or control of the person; or
(b) cannot reasonably be ascertained by the person.
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
(6) A person commits an offence if the person contravenes subsection (4).
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—600 penalty units; and
(b) for an individual—imprisonment for 12 months or 60 penalty units, or both.
Civil penalty provision
(7) A person is liable to a civil penalty if the person contravenes subsection (4).
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.
Information may be given to the Reserve Bank
(8) A statutory manager may give the Reserve Bank any information that the statutory manager receives under this Part.
Note: The secrecy provision in section 79A of the Reserve Bank Act 1959 applies to information and documents obtained by the Reserve Bank under this section (either as statutory manager under subsection (1) of this section or from a statutory manager under this subsection).
101 Statutory manager acts as body corporate’s agent
When performing a function, or exercising a power, as the statutory manager of a body corporate, the statutory manager is taken to be acting as the body corporate’s agent.
Subdivision C—Effect of statutory manager assuming control
102 Exercise of directors’ powers while body corporate under statutory management
(1) A person contravenes this subsection if:
(a) the person is a director of a body corporate; and
(b) the body corporate is under statutory management; and
(c) the person performs or exercises, or purports to perform or exercise, a function or power of a director.
(2) Subsection (1) does not apply to the extent that the director of the body corporate is acting with the written approval of the statutory manager of the body corporate or the Reserve Bank.
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).
Penalty: 30 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: The greater of:
(a) 5,000 penalty units; and
(b) if the court can determine the benefit derived and detriment avoided because of the contravention—that amount multiplied by 3.
Reserve Bank may revoke or vary the approval
(5) If a statutory manager (other than the Reserve Bank) gives written approval for the purposes of subsection (2), the statutory manager must immediately notify the Reserve Bank in writing.
(6) The Reserve Bank may decide to revoke or vary the approval. The Reserve Bank’s decision takes effect from the time the director is notified of the decision in writing.
Functions and powers of statutory manager prevail in case of conflict
(7) If:
(a) subsection (2) applies; and
(b) there is a conflict between:
(i) a function or power of the statutory manager of the body corporate; and
(ii) a function or power of the director in relation to the body corporate;
the statutory manager’s function or power prevails.
Effect of this section
(8) This section does not remove a director of a body corporate from office.
(9) Nothing in this section affects a secured creditor’s right to realise or otherwise deal with a security interest.
103 Effect of things done during statutory management of body corporate
A payment made, transaction entered into, or any other act or thing done, in good faith, by the statutory manager of a body corporate under statutory management or with the written consent of the statutory manager or the Reserve Bank:
(a) is valid and effectual for the purposes of this Act and the Corporations Act 2001; and
(b) is not liable to be set aside in a winding up of the body corporate.
104 Effect of statutory management on body corporate’s members
Transfer of shares
(1) A transfer of shares in a body corporate that is made during the statutory management of the body corporate is void except if:
(a) both:
(i) the statutory manager and the Reserve Bank gives written consent to the transfer; and
(ii) that consent is unconditional; or
(b) all of the following subparagraphs apply:
(i) the statutory manager and the Reserve Bank gives written consent to the transfer;
(ii) that consent is subject to one or more specified conditions;
(iii) those conditions have been satisfied; or
(c) the transfer is done to give effect to an action under section 99 (recapitalisation actions) by the statutory manager; or
(d) the transfer is done to give effect to a transfer under Division 5 (compulsory transfers).
Alteration in the status of members
(2) An alteration in the status of members of a body corporate that is made during the statutory management of the body corporate is void except if:
(a) both:
(i) the statutory manager and the Reserve Bank gives written consent to the alteration; and
(ii) that consent is unconditional; or
(b) all of the following subparagraphs apply:
(i) the statutory manager and the Reserve Bank gives written consent to the alteration;
(ii) that consent is subject to one or more specified conditions;
(iii) those conditions have been satisfied; or
(c) the alteration is done to give effect to an action under section 99 (recapitalisation actions) by the statutory manager; or
(d) the alteration is done to give effect to a transfer under Division 5 (compulsory transfers).
(3) As soon as practicable after an alteration in the status of members of a body corporate is made during the statutory management of the body corporate, the statutory manager must give a written notice:
(a) to the persons who were members of the body just before the alteration; and
(b) that:
(i) identifies the alteration; and
(ii) explains the effect of the alteration on the members’ interests.
(4) A contravention of subsection (3) does not affect the validity of the alteration.
Subdivision D—Additional duties of statutory manager
105 Reporting to Reserve Bank
Duty to report to the Reserve Bank on request
(1) If requested by the Reserve Bank, a statutory manager of a body corporate (other than the Reserve Bank) must give the Reserve Bank a written report showing how the control of the body corporate’s business is being carried out.
(2) The report must be given to the Reserve Bank within a reasonable time after the request.
Duty to report to the Reserve Bank on termination of appointment
(3) If the Reserve Bank terminates the appointment of a statutory manager of a body corporate, the statutory manager of the body corporate must give to the Reserve Bank a written report showing how the control of the body corporate’s business was carried out over the period the statutory manager was in control.
(4) The report must be given to the Reserve Bank within a reasonable time after the termination.
106 Reserve Bank’s directions power—directions to statutory manager
Duty to follow directions by the Reserve Bank
(1) The Reserve Bank:
(a) may give a statutory manager of a body corporate a direction relating to the control of the body corporate’s business; and
(b) may vary such a direction.
(2) A statutory manager who is given a direction, or a varied direction, under subsection (1) must:
(a) comply with the direction; or
(b) immediately:
(i) request the Reserve Bank to vary the direction; and
(ii) provide the Reserve Bank with information relating to the control of the body corporate’s business that is relevant to its request.
(3) If the Reserve Bank refuses to vary the direction, the statutory manager must comply with the direction.
107 Consent to take action that may affect functioning of cash distribution system
(1) This section applies if:
(a) a statutory manager of a body corporate (other than the Reserve Bank) proposes to take an action; and
(b) the statutory manager has reasonable grounds to believe that the action would likely pose a threat to the continuity of one or more cash distribution services that are critical to the availability of cash in Australia.
(2) The statutory manager must, before taking the action:
(a) notify the Reserve Bank in writing as soon as practicable; and
(b) obtain the Reserve Bank’s written consent.
Subdivision E—Other matters
108 Effect on external administration
Termination of existing external administrator
(1) The appointment of an external administrator of a body corporate is terminated when a statutory manager takes control of the body corporate’s business.
(2) Failure to give an external administrator notice under section 93 does not affect the operation of this section.
External administrator may only be appointed with approval during statutory management
(3) While a body corporate is under statutory management, an external administrator of the body corporate must not be appointed unless the Reserve Bank approves the appointment in writing.
Invalid acts
(4) If either of the following purports to act in relation to a body corporate’s business, those acts are invalid and of no effect:
(a) a person who ceased to be the external administrator of the body corporate under subsection (1);
(b) a purported external administrator of the body corporate appointed in contravention of subsection (3).
109 Appointment of 2 or more statutory managers of body corporate
If there are 2 or more statutory managers of a body corporate:
(a) the functions and powers of a statutory manager of the body corporate may be performed or exercised by any one of them, or by any 2 or more of them together, subject to any limits or conditions specified in notices given under subsection 93(6); and
(b) a reference in this Act to a statutory manager, or to the statutory manager, of the body corporate is a reference to whichever one or more of those statutory managers the case requires.
110 Costs of statutory management
(1) The Reserve Bank’s costs (including costs in the nature of remuneration and expenses) of:
(a) being in control of a body corporate’s business as statutory manager; or
(b) having a statutory manager in control of a body corporate’s business;
are payable from the body corporate’s funds and are a debt due to the Reserve Bank.
(2) Despite anything contained in this Act, the Corporations Act 2001 or any other law relating to the winding up of companies, debts due to the Reserve Bank by a body corporate under subsection (1) have priority in a winding‑up of the body corporate over all other unsecured debts.
111 Annual general meeting need not be held
Despite sections 250N and 601BR of the Corporations Act 2001, a body corporate need not hold an annual general meeting within a particular period if, at the end of that period, the body corporate is under statutory management.
112 Dealing with property subject to circulating security interests
Scope
(1) This section applies if a security interest in property (the secured property) of a body corporate under statutory management:
(a) was a circulating security interest when the interest arose; but
(b) has stopped being a circulating security interest because:
(i) in the case of a PPSA security interest—the property has stopped being a circulating asset; or
(ii) in the case of a security interest that was a floating charge when it arose—the floating charge has since become a fixed or specific charge.
Security interest in circulating asset
(2) Subject to section 113 in the case of a PPSA security interest, the statutory manager may deal with any of the secured property in any way the body corporate could deal with the secured property immediately before it stopped being a circulating asset.
Floating charge
(3) Subject to section 113, if the secured interest was a floating charge when it arose, the statutory manager may deal with any of the secured property as if the security interest were still a floating charge.
Note: Section 113 deals with the disposal of encumbered property by a statutory manager.
113 When statutory manager may dispose of encumbered property
(1) The statutory manager of a body corporate under statutory management must not dispose of:
(a) property of the body corporate that is subject to a security interest; or
(b) property (other than PPSA retention of title property) that is used or occupied by, or is in the possession of, the body corporate but of which someone else is the owner or lessor.
Note: PPSA retention of title property is subject to a PPSA security interest, and so is covered by paragraph (a) of this subsection: see the definition of PPSA retention of title property in section 51F of the Corporations Act 2001.
(2) Subsection (1) does not prevent a disposal:
(a) in the ordinary course of the body corporate’s business; or
(b) with the written consent of the secured party, owner or lessor, as the case may be; or
(c) at the direction of or with the written consent of the Reserve Bank.
(3) If:
(a) a body corporate is under statutory management; and
(b) property of the body corporate is subject to a security interest; and
(c) the statutory manager disposes of the property;
the disposal extinguishes the security interest.
(4) For the purposes of paragraph (2)(a), if:
(a) property is used or occupied by, or is in the possession of, a body corporate; and
(b) another person is the owner of the property; and
(c) either:
(i) the property is PPSA retention of title property; or
(ii) the property is subject to a retention of title clause under a contract; and
(d) the owner demands the return of the property;
a disposal of the property that occurs after the demand is made does not mean that the disposal is not in the ordinary course of the body corporate’s business.
114 Proceeds of sale of property
Property subject to a possessory security interest
(1) If:
(a) a body corporate is under statutory management; and
(b) property of the body corporate is subject to a possessory security interest; and
(c) the statutory manager of the body corporate disposes of the property by way of sale;
then:
(d) if the net proceeds of sale equals or exceeds the total of the debts secured by:
(i) the possessory security interest; and
(ii) any other security interest in the property, where the debt secured by the security interest has a priority that is equal to or higher than the priority of the debt secured by the possessory security interest;
the statutory manager of the body corporate must:
(iii) set aside so much of the net proceeds as equals the total of those debts; and
(iv) apply the amount so set aside in paying those debts; or
(e) if the net proceeds of sale fall short of the total of the debts secured by:
(i) the possessory security interest; and
(ii) any other security interest in the property, where the debt secured by the security interest has a priority that is equal to or higher than the priority of the debt secured by the possessory security interest;
then:
(iii) the statutory manager must set aside the net proceeds; and
(iv) the statutory manager must apply the amount so set aside in paying those debts in order of priority, on the basis that if the amount is insufficient to fully pay debts of the same priority, they must be paid proportionately; and
(v) if any of those debts is not fully paid—so much of the debt as remains unpaid may be recovered from the body corporate as an unsecured debt.
PPSA retention of title property
(2) Subsection (3) applies if the statutory manager of a body corporate disposes of PPSA retention of title property of the body corporate by way of sale.
(3) The statutory manager must apply the net proceeds of the sale in the same way as a secured party is required, under section 140 of the Personal Property Securities Act 2009, to apply an amount, personal property or proceeds of collateral received by the secured party as a result of enforcing a security interest in the property.
Note: PPSA retention of title property does not include property that is subject to a retention of title clause: see the definitions of PPSA retention of title property and retention of title clause. Subsection (4) deals with property that is subject to a retention of title clause.
Property subject to a retention of title clause
(4) If:
(a) a body corporate is under statutory management; and
(b) property is used or occupied by, or is in the possession of, the body corporate; and
(c) another person is the owner of the property; and
(d) the property is subject to a retention of title clause under a contract (the original contract); and
(e) the statutory manager disposes of the property by way of sale;
then:
(f) if the net proceeds of sale equals or exceeds the total of:
(i) so much of the purchase price, or other amount, under the original contract as remains unpaid; and
(ii) if there are one or more securities over the property—the debts secured by the securities;
the statutory manager must:
(iii) set aside so much of the net proceeds as equals that total; and
(iv) apply the amount so set aside in paying that total; or
(g) if the net proceeds of sale fall short of the total of:
(i) so much of the purchase price, or other amount, under the original contract as remains unpaid; and
(ii) if there are one or more securities over the property—the debts secured by the securities;
then:
(iii) the statutory manager must set aside the net proceeds; and
(iv) the statutory manager must apply the amount so set aside in paying those debts in order of priority, on the basis that if the amount is insufficient to fully pay debts of the same priority, they must be paid proportionately; and
(v) if any of those debts is not fully paid—so much of the debt as remains unpaid may be recovered from the body corporate as an unsecured debt.
Note: Property that is subject to a retention of title clause does not include PPSA retention of title property: see the definitions of PPSA retention of title property and retention of title clause. Subsections (2) and (3) deal with PPSA retention of title property.
115 Supply of essential services
(1) If:
(a) a statutory manager of a body corporate requests, or authorises someone else to request, a person or authority (the supplier) to supply an essential service to the body corporate in Australia; and
(b) the body corporate owes an amount to the supplier in respect of supply of the essential service before the effective day;
the supplier must not:
(c) refuse to comply with the request for the reason only that the amount is owing; or
(d) make it a condition of the supply of the essential service pursuant to the request that the amount is to be paid.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
(2) In this section:
effective day, in relation to a body corporate that is under statutory management, is the day the body corporate began to be under statutory management.
essential service means:
(a) an essential service within the meaning of the Corporations Act 2001; or
(b) a thing specified in an instrument under subsection (3).
(3) The Reserve Bank may, by legislative instrument, make a determination specifying a thing for the purposes of paragraph (b) of the definition of essential service in subsection (2).
116 Statutory manager has qualified privilege
(1) If a person who is or has been a statutory manager of a body corporate makes a statement, whether orally or in writing, in the course of performing or exercising any of the person’s functions and powers as a statutory manager of the body corporate, the person:
(a) has qualified privilege in proceedings for defamation in relation to that statement; and
(b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person in relation to that statement.
(2) For the purposes of paragraph (1)(b), malice includes ill will to the person concerned or any other improper motive.
(3) This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as defendant in proceedings, or an action, for defamation.
117 Protection of persons dealing with statutory manager
(1) Sections 128 and 129 of the Corporations Act 2001 apply in relation to a body corporate under statutory management as if:
(a) a reference in those sections to that Act were a reference to this Act; and
(b) a reference in those sections to the company, or to an officer of the company, included a reference to the statutory manager of the body corporate; and
(c) a reference in those sections to an assumption referred to in section 129 included a reference to an assumption that the statutory manager is:
(i) acting within the statutory manager’s functions and powers as statutory manager; and
(ii) in particular, complying with this Act.
(2) The effect that sections 128 and 129 of the Corporations Act 2001 have because of subsection (1) of this section is additional to, and does not prejudice, the effect that sections 128 and 129 of that Act otherwise have in relation to a body corporate under statutory management.
Division 5—Compulsory transfer of business or shares
Subdivision A—Compulsory transfer of business or shares of body corporate in relation to a designated entity in crisis
118 Compulsory transfer of shares in body corporate
Transfer of all or part of the shares in a designated entity
(1) The Reserve Bank may, in writing, make a determination that there is to be a transfer of all or part of the shares in a designated entity (the target body) to another body corporate (the receiving body) if:
(a) the Reserve Bank reasonably believes that the transfer is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the designated entity; and
(b) the Minister consents to the transfer in writing; and
(c) the Reserve Bank is satisfied that the board of the receiving body consents to the transfer.
Transfer of all or part of the shares in a related body corporate
(2) The Reserve Bank may, in writing, make a determination that there is to be a transfer of all or part of the shares in a body corporate (the target body) to another body corporate (the receiving body) if:
(a) the Reserve Bank has made, or intends to make, a determination under subsection (1) that there is to be a transfer of shares in a designated entity to another body corporate; and
(b) the Reserve Bank reasonably believes that the transfer to the receiving body is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the designated entity; and
(c) the Reserve Bank reasonably believes that the transfer is necessary to ensure the ability of the entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia; and
(d) the target body is, or before the transfer of shares from the designated entity referred to in paragraph (a) of this subsection was, a related body corporate of the designated entity; and
(e) the target body is incorporated in Australia; and
(f) the Minister consents to the transfer in writing; and
(g) the Reserve Bank is satisfied that the board of the receiving body consents to the transfer.
Determination
(3) A determination made under subsection (1) or (2) must include:
(a) particulars of the transfer, including:
(i) the names of the target body and the receiving body; and
(ii) whether it will be a transfer of all or part of the shares; and
(iii) if it will be a transfer of part of the shares—an indication of the shares that are to be transferred; and
(b) a statement of the reasons why the determination has been made.
(4) A determination made under subsection (1) or (2) is not a legislative instrument.
Notice
(5) The Reserve Bank must give a copy of a determination made under subsection (1) or (2) to the target body and the receiving body.
119 Compulsory transfer of business of body corporate
Total or partial transfer of business of designated entity
(1) The Reserve Bank may, in writing, make a determination that there is to be a total or partial transfer of business of a designated entity from the entity (the target body) to another body corporate (the receiving body) if:
(a) the Reserve Bank reasonably believes that the transfer is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the designated entity; and
(b) the Minister consents to the transfer in writing; and
(c) the Reserve Bank is satisfied that the board of the receiving body consents to the transfer.
Total or partial transfer of business of related body corporate
(2) The Reserve Bank may, in writing, make a determination that there is to be a total or partial transfer of business from a body corporate (the target body) to another body corporate (the receiving body) if:
(a) the Reserve Bank has made, or intends to make, a determination under subsection (1) that there is to be a total or partial transfer of business from a designated entity to another body corporate; and
(b) the Reserve Bank reasonably believes that the transfer to the receiving body is appropriate to manage or respond to a condition in section 90 being satisfied in relation to the designated entity; and
(c) the Reserve Bank reasonably believes that the transfer is necessary to ensure the ability of the designated entity to continue to provide one or more cash distribution services that are critical to the availability of cash in Australia; and
(d) the target body is, or before the transfer of business from the entity was, a related body corporate of the designated entity; and
(e) the target body is incorporated in Australia; and
(f) the Minister consents to the transfer in writing; and
(g) the Reserve Bank is satisfied that the board of the receiving body consents to the transfer.
Determination
(3) A determination made under subsection (1) or (2) must include:
(a) particulars of the transfer, including:
(i) the names of the target body and the receiving body; and
(ii) whether it will be a total or a partial transfer; and
(iii) if it will be a partial transfer—an indication of the part of the target body’s business that is to be transferred; and
(b) a statement of the reasons why the determination has been made.
(4) A determination made under subsection (1) or (2) is not a legislative instrument.
Notice
(5) The Reserve Bank must give a copy of a determination made under subsection (1) or (2) to the target body and the receiving body.
120 When consent of receiving body is in force
(1) The consent of the board of a receiving body referred to in paragraph 118(1)(c) or (2)(g) or 119(1)(c) or (2)(g) remains in force until it is withdrawn by the board with the written agreement of the Reserve Bank.
(2) The Reserve Bank may agree to the consent being withdrawn if the Reserve Bank reasonably believes that it is appropriate to allow the consent to be withdrawn, having regard to any of the following:
(a) circumstances that have arisen since the consent was given;
(b) circumstances that were in existence at or before the time when the consent was given but that were not known to the receiving body’s board when it gave its consent;
(c) any other relevant matter.
121 Agreement about how transfer is to be effected
(1) If a determination is made under section 118 or 119 that there is to be a transfer, the target body or the receiving body, or both of those bodies, may provide the Reserve Bank with a written statement specifying, or specifying a mechanism for determining, things that are to happen, or that are taken to be the case, in relation to:
(a) if the determination is made under section 118—some or all of the shares that are to be transferred; or
(b) if the determination is made under section 119—some or all of the assets and liabilities that are to be transferred.
(2) The Reserve Bank may, in writing, approve the statement before issuing the certificate of transfer if the Reserve Bank is satisfied that:
(a) the statement has been agreed to by the target body and the receiving body; and
(b) the matters specified in the statement are appropriate.
122 Determination may impose conditions
(1) A determination made under section 118 or 119 that there is to be a transfer may impose conditions of either or both of the following kinds:
(a) conditions to be complied with by the target body or the receiving body before a certificate of transfer is issued in relation to the transfer;
(b) conditions to be complied with by the target body or the receiving body after a certificate of transfer has been issued or has come into force in relation to the transfer.
(2) The Reserve Bank may, in writing, vary or revoke any condition of a determination if the Reserve Bank is satisfied that the variation or revocation is appropriate. Each body to which the condition applies must be given notice of the revocation or variation in writing.
(3) The target body or the receiving body may apply in writing to the Reserve Bank to have a condition of a determination that applies to it varied or revoked.
(4) The Reserve Bank may, by notice in writing given to the body that made the application, approve the variation or revocation if the Reserve Bank is satisfied that the variation or revocation is appropriate. A variation or revocation that is approved by the Reserve Bank has effect accordingly.
(5) A body corporate contravenes this subsection if:
(a) a condition is imposed on the body corporate under subsection (1) in relation to a transfer; and
(b) a certificate issued under section 125 that the transfer is to take effect is not in force; and
(c) the Reserve Bank has not issued a certificate under section 123 that the transfer is not to take effect; and
(d) the body corporate fails to comply with the condition.
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
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—2,000 penalty units; and
(b) for an individual—200 penalty units.
Civil penalty provision
(7) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
123 Certificate that transfer is not to take effect
(1) If:
(a) the Reserve Bank has made a determination under section 118 or 119 that there is to be a transfer; and
(b) the Reserve Bank has not issued a certificate under section 125 that the transfer is to take effect; and
(c) either:
(i) the consent of the board of the receiving body to the transfer has been withdrawn; or
(ii) the Reserve Bank decides under subsection (2) of this section that the transfer should not go ahead;
the Reserve Bank must, in writing, issue a certificate stating that the transfer is not to take effect.
(2) The Reserve Bank may decide that the transfer should not go ahead if the Reserve Bank no longer reasonably believes that the transfer is appropriate to manage or respond to the condition in section 90 being satisfied in relation to a designated entity, including because the condition is not satisfied in relation to the entity.
(3) The certificate is not a legislative instrument.
Notice
(4) The Reserve Bank must give a copy of the certificate to the target body and the receiving body.
124 Consultation
(1) Subject to subsection (2), the Reserve Bank must, before making a determination under subsection 118(1) or (2) or 119(1) or (2), consult with the ACCC.
(2) The Reserve Bank does not have to consult with the ACCC in relation to the making of a determination under subsection 118(1) or (2) or 119(1) or (2) if the ACCC has notified the Reserve Bank, in writing, that it does not wish to be consulted about:
(a) the transfer concerned; or
(b) a class of transfers that includes that transfer.
Subdivision B—Transfer process
125 Certificate of transfer
(1) If:
(a) the Reserve Bank has made a determination under section 118 or 119 that there is to be a transfer; and
(b) the Reserve Bank reasonably believes that the transfer should go ahead; and
(c) the consent of the board of the receiving body to the transfer remains in force;
the Reserve Bank must, in writing, issue a certificate stating that the transfer is to take effect.
(2) The certificate of transfer must:
(a) include the names of:
(i) the target body; and
(ii) the receiving body; and
(b) if the determination is made under section 118:
(i) state whether the transfer is a transfer of all or part of the shares; and
(ii) if the transfer is of part of the shares—include a list of the shares that are being transferred to the receiving body; and
(c) if the determination is made under section 119:
(i) state whether the transfer is a total or a partial transfer; and
(ii) if the transfer is a partial transfer—include, or have attached to it, a list of the assets and liabilities that are being transferred to the receiving body; and
(d) state when the certificate is to come into force (either by specifying a date as the date it comes into force, or by specifying that the date it comes into force is a date worked out in accordance with provisions of the certificate).
(3) The certificate comes into force in accordance with the statement included in the certificate as required by paragraph (2)(d).
(4) The certificate is not a legislative instrument.
Specification of things that are to happen on transfer etc.
(5) The certificate may include provisions specifying, or specifying a mechanism for determining, other things that are to happen, or that are taken to be the case, in relation to:
(a) if the determination is made under section 118—some or all of the shares that are to be transferred; or
(b) if the determination is made under section 119—some or all of the assets and liabilities that are to be transferred.
Note: For example, if the target body is the trustee of a trust, the certificate may specify how the trust is to be transferred.
Notice
(6) The Reserve Bank must:
(a) give a copy of the certificate to the target body and the receiving body; and
(b) publish the notice of the issue of the certificate on its website.
126 Time and effect of transfer of shares
(1) When a certificate issued under section 125 for a transfer of shares comes into force, the shares in the target body that are to be transferred, wherever those shares are located, become shares held by the receiving body without any transfer, conveyance or assignment.
(2) Those shares become shares held by the receiving body free from any trust, liability or other encumbrance.
Certificate provisions for things to happen on transfer etc. are taken to have happened etc.
(3) If the certificate includes provisions of a kind referred to in paragraph 125(5)(a), then:
(a) if the provisions specify that particular things are to happen or are taken to be the case—those things are, by force of this subsection, taken to happen, or to be the case, in accordance with those provisions; and
(b) if the provisions specify a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with the mechanism are, by force of this subsection, taken to happen, or to be the case, as determined in accordance with that mechanism.
Agreed provisions for things to happen on transfer etc. are taken to have happened etc.
(4) If the Reserve Bank has approved a statement under subsection 121(2) in relation to the transfer, then:
(a) if the statement specifies that particular things are to happen or are taken to be the case—those things are, by force of this subsection, taken to happen, or to be the case, in accordance with the statement; and
(b) if the statement specifies a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this subsection, taken to happen, or to be the case, as determined in accordance with that mechanism.
127 Time and effect of transfer of business
(1) When a certificate issued under section 125 for a transfer of business comes into force, the receiving body becomes the successor in law of the target body, to the extent of the transfer. In particular:
(a) if the transfer is a total transfer—all the assets and liabilities of the target body, wherever those assets and liabilities are located, become assets and liabilities of the receiving body (in the same capacity as they were assets and liabilities of the target body) without any transfer, conveyance or assignment; and
(b) if the transfer is a partial transfer—all the assets and liabilities included in the list referred to in subparagraph 125(2)(c)(ii), wherever those assets and liabilities are located, become assets and liabilities of the receiving body (in the same capacity as they were assets and liabilities of the target body) without any transfer, conveyance or assignment; and
(c) to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the target body apply to the receiving body.
Certificate provisions for things to happen on transfer etc. are taken to have happened etc.
(2) If the certificate includes provisions of a kind referred to in paragraph 125(5)(b), then:
(a) if the provisions specify that particular things are to happen or are taken to be the case—those things are, by force of this subsection, taken to happen, or to be the case, in accordance with those provisions; and
(b) if the provisions specify a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with the mechanism are, by force of this subsection, taken to happen, or to be the case, as determined in accordance with that mechanism.
Agreed provisions for things to happen on transfer etc. are taken to have happened etc.
(3) If the Reserve Bank has approved a statement under subsection 121(2) in relation to the transfer, then:
(a) if the statement specifies that particular things are to happen or are taken to be the case—those things are, by force of this subsection, taken to happen, or to be the case, in accordance with the statement; and
(b) if the statement specifies a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are, by force of this subsection, taken to happen, or to be the case, as determined in accordance with that mechanism.
Subdivision C—Other matters
128 Reserve Bank may provide information to receiving body
The Reserve Bank may, in connection with a determination or a possible determination under section 118 or 119 that there is to be a transfer, provide information (including personal information or confidential commercial information) to the receiving body, or to the possible or proposed receiving body, about:
(a) if the determination is, or would be, made under section 118:
(i) some or all of the shares that are to be, or that may be, transferred; and
(ii) the business of the target body; or
(b) if the determination is, or would be, made under section 119—some or all of the business that is to be, or that may be, transferred.
Note: Subsection 79A(7A) of the Reserve Bank Act 1959 allows conditions to be imposed on a body who is provided information under this section to be complied with by the body in relation to that information.
129 Certificates in relation to land and interests in land
If:
(a) a body corporate (the receiving body) becomes, under this Division, the owner of land, or of an interest in land, that is situated in a State or Territory; and
(b) there is lodged with the Registrar of Titles or other appropriate officer of the State or Territory in which the land is situated a certificate that:
(i) is issued by the Reserve Bank; and
(ii) identifies the land or interest; and
(iii) states that the receiving body has, under this Division, become the owner of that land or interest;
the officer with whom the certificate is lodged may:
(c) register the matter in the same manner as dealings in land or interests in land of that kind are registered; and
(d) deal with, and give effect to, the certificate.
130 Certificates in relation to other assets
(1) If:
(a) an asset (other than land or an interest in land) becomes, under this Division, an asset of a body corporate (the receiving body); and
(b) there is lodged with the person or authority who has, under a law of the Commonwealth, a State or a Territory, responsibility for keeping a register in respect of assets of that kind a certificate that:
(i) is issued by the Reserve Bank; and
(ii) identifies the asset; and
(iii) states that the asset has, under this Division, become an asset of the receiving body;
that person or authority may:
(c) register the matter in the same manner as transactions in relation to assets of that kind are registered; and
(d) deal with, and give effect to, the certificate.
(2) This section does not affect the operation of:
(a) other provisions of this Act or the Corporations Act 2001; or
(b) if the rules prescribe provisions of one or more other Acts—those provisions of those Acts.
131 Documents purporting to be certificates
A document purporting to be a certificate given under this Division is, unless the contrary is established, taken to be such a certificate and to have been properly given.
132 Construction of references in instruments to target body
If a certificate issued under section 125 for a transfer comes into force, a reference in an instrument of any kind to the target body in relation to:
(a) an asset or liability of the target body transferred under this Division; or
(b) a share in the target body transferred under this Division;
is taken to be a reference to the receiving body.
133 Income or other distribution received by target body
(1) A body corporate contravenes this subsection if:
(a) the body is the target body; and
(b) the body receives any income or other distribution after a certificate of transfer comes into force; and
(c) the income or distribution arises from assets transferred to the receiving body under this Division; and
(d) the target body fails to promptly account to the receiving body for the income or distribution.
Fault‑based offence
(2) A body corporate commits an offence if the body corporate 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—1,200 penalty units; and
(b) for an individual—imprisonment for 12 months or 120 penalty units, or both.
Civil penalty provision
(3) A body corporate is liable to a civil penalty if the body corporate 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.
134 Access to books
(1) A body corporate contravenes this subsection if:
(a) the body is the target body; and
(b) the receiving body requests the target body to give the receiving body access to all books in its possession that relate to assets or liabilities transferred under this Division; and
(c) the target body fails to comply with the request.
Fault‑based offence
(2) 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—1,200 penalty units; and
(b) for an individual—imprisonment for 12 months or 120 penalty units, or both.
Civil penalty provision
(3) 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.
135 Relationship of Division with other laws etc.
(1) Subject to subsections (3), (4), (5) and (6), this Division has effect despite all of the following:
(a) any other law of the Commonwealth or of a State or Territory;
(b) any contract, deed, undertaking, agreement or other instrument.
(2) Without limiting subsection (1), and subject to subsections (3), (4), (5) and (6), nothing done by or under this Division:
(a) places a body corporate or other person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong; or
(b) places a body corporate or other person in breach of:
(i) any law of the Commonwealth or of a State or Territory; or
(ii) any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or
(c) releases any surety, wholly or partly, from all or any of the surety’s obligations.
(3) Nothing in this Division limits the operation of:
(a) any of the provisions of the Privacy Act 1988; or
(b) any of the provisions of the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Competition and Consumer Act 2010
(4) Subject to paragraph (5)(b), nothing in this Division limits the operation of any of the provisions of the Competition and Consumer Act 2010.
(5) For the purposes of section 50 and related provisions of the Competition and Consumer Act 2010, and the acquisitions provisions (within the meaning of that Act):
(a) a transfer of shares or business that takes effect under this Division is taken to be:
(i) to the extent that the transfer is of shares in the capital of a body corporate—an acquisition of the shares by the receiving body; and
(ii) to the extent that the transfer is of other assets—an acquisition of those assets by the receiving body; and
(b) the acquisition is not required to be notified under Division 2 of Part IVA of the Competition and Consumer Act 2010.
Note: For the purposes of the acquisitions provisions, the receiving body is the principal party to the acquisition.
(6) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, the following things are specified and specifically authorised:
(a) a transfer of shares or business under this Division;
(b) anything done to enable or facilitate a transfer of shares or business under this Division (including an agreement referred to in section 121).
136 Reserve Bank’s rules may make special provision in relation to compulsory transfer
Compulsory transfer of shares
(1) The Reserve Bank may, by legislative instrument, make rules in relation to any of the following matters in relation to a transfer of shares, or proposed transfer of shares, under this Division:
(a) the payment to a holder of shares in a target body under this Division of a purchase price for those shares;
(b) the resolution of disputes involving a holder of shares in a target body under this Division (including the resolution of such disputes by the Federal Court);
(c) the publication, by the Reserve Bank, a target body and a receiving body, of information relating to a transfer of shares, or proposed transfer of shares, under this Division;
(d) the freeing of shares in a target body from any trust, liability or other encumbrance when they become shares held by a receiving body;
(e) any matter incidental to:
(i) a transfer of shares, or proposed transfer of shares, under this Division; or
(ii) any of the other matters mentioned in this subsection.
Compulsory transfer of business
(2) The Reserve Bank may, by legislative instrument, make rules in relation to any of the following matters in relation to a transfer of business, or proposed transfer of business, under this Division:
(a) the payment to a target body under this Division of a purchase price for a business;
(b) the resolution of disputes involving a target body under this Division (including the resolution of such disputes by the Federal Court);
(c) the publication, by the Reserve Bank, a target body and a receiving body, of information relating to a transfer of business, or proposed transfer of business, under this Division;
(d) the freeing of assets of a target body from any trust, liability or other encumbrance when they become assets of a receiving body;
(e) any matter incidental to:
(i) a transfer of business, or proposed transfer of business, under this Division; or
(ii) any of the other matters mentioned in this subsection.
Failure to comply with Reserve Bank’s rules
(3) A person contravenes this subsection if:
(a) a rule made by the Reserve Bank under this section applies to the person; and
(b) the person fails to comply with the rule.
Fault‑based offence
(4) A person commits an offence if the person contravenes subsection (3).
Penalty:
(a) for a body corporate—300 penalty units; and
(b) for an individual—30 penalty units.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (3).
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.
Division 6—Moratorium and stays during resolution
137 Circumstances in which moratorium and stays are relevant
(1) This section begins to apply to a body corporate if:
(a) the body corporate begins to be under statutory management; or
(b) the Reserve Bank makes a determination under section 118 that there is to be a transfer of shares in the body corporate; or
(c) the Reserve Bank makes a determination under section 119 that there is to be a transfer of business of the body corporate; or
(d) the Reserve Bank gives a direction to the body corporate under subsection 91(1).
(2) This section ceases to apply to a body corporate at the earliest time, occurring after this section begins to apply to the body corporate, at which:
(a) the body corporate is not under statutory management; and
(b) for each determination (if any) the Reserve Bank has made under section 118 that there is to be a transfer of shares in the body corporate, or under section 119 that there is to be a transfer of business of the body corporate:
(i) a certificate issued under section 125 that the transfer is to take effect is in force; or
(ii) a certificate issued under section 123 that the transfer is not to take effect is in force; and
(c) no direction (if any) given to the body corporate under subsection 91(1) remains in force.
(3) To avoid doubt, subsection (2) does not prevent this section from subsequently beginning to apply to the body corporate again under subsection (1).
138 Moratorium—court and tribunal proceedings
(1) Subject to subsections (2) and (5), a person must not begin or continue a proceeding in a court or tribunal covered by subsection (7) in respect of a body corporate if section 137 applies to the body corporate.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
(2) Subsection (1) does not apply if:
(a) the court or tribunal grants leave for the proceedings to be begun or continued on the ground that the person would be caused hardship if leave were not granted; and
(b) the beginning or continuing of the proceedings is in accordance with such terms (if any) as the court or tribunal imposes.
(3) A person intending to apply for leave of the court or tribunal under paragraph (2)(a) must give the Reserve Bank at least 10 days notice of the intention to apply (or a shorter period, if the court or tribunal considers that exceptional circumstances make this necessary).
(4) The Reserve Bank may apply to the court or tribunal to be joined as a party to the proceedings for leave. If the Reserve Bank is joined as a party, the court or tribunal must have regard to the Reserve Bank’s views in deciding:
(a) whether to grant leave under paragraph (2)(a); and
(b) if the court or tribunal decides to grant the leave—whether to impose terms as mentioned in paragraph (2)(b); and
(c) if the court or tribunal decides to impose such terms—the nature of those terms.
(5) Subsection (1) also does not apply if:
(a) the Reserve Bank consents in writing to the proceedings beginning or continuing; or
(b) for a body corporate under statutory management—the statutory manager, after considering the Reserve Bank’s views, consents to the proceedings beginning or continuing.
(6) The Reserve Bank (or the statutory manager) cannot revoke a consent given for the purposes of subsection (5).
(7) A proceeding in a court or tribunal is covered by this subsection in respect of a body corporate if it is any of the following:
(a) a proceeding against the body corporate (including a cross‑claim or third party claim against the body corporate);
(b) a proceeding in relation to property of the body corporate;
(c) a proceeding to enforce any security (including a mortgage or charge) granted by the body corporate, or by a related body corporate of the body corporate, over any property that the body corporate owns, uses, possesses, occupies or in which the body corporate otherwise has an interest.
(8) Subsection (7) does not cover a proceeding in respect of an offence or a contravention of a provision of a law for which a pecuniary penalty (however described) may be imposed.
(9) In this section, a reference to a tribunal includes a reference to the following:
(a) an industrial tribunal;
(b) an arbitral tribunal.
139 Moratorium—enforcement process regarding property
(1) Subject to subsections (2) and (5), a person must not begin or proceed with an enforcement process (within the meaning of the Corporations Act 2001) in relation to property of a body corporate if section 137 applies to the body corporate.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
(2) Subsection (1) does not apply if:
(a) the Federal Court grants leave for the process to be begun or continued on the ground that the person would be caused hardship if leave were not granted; or
(b) the beginning or continuing of the process is in accordance with such terms (if any) as the Federal Court imposes.
(3) A person intending to apply for leave of the Federal Court under paragraph (2)(a) must give the Reserve Bank at least 10 days notice of the intention to apply (or a shorter period, if the Federal Court considers that exceptional circumstances make this necessary).
(4) The Reserve Bank may apply to the Federal Court to be joined as a party to the proceedings for leave. If the Reserve Bank is joined as a party, the Federal Court must have regard to the Reserve Bank’s views in deciding:
(a) whether to grant leave under paragraph (2)(a); and
(b) if the Federal Court decides to grant the leave—whether to impose terms as mentioned in paragraph (2)(b); and
(c) if the Federal Court decides to impose such terms—the nature of those terms.
(5) Subsection (1) also does not apply if:
(a) the Reserve Bank consents to the process beginning or continuing; or
(b) for a body corporate under statutory management—the statutory manager consents to the process beginning or continuing.
(6) The Reserve Bank (or the statutory manager) cannot revoke a consent given for the purposes of subsection (5).
140 Moratorium—disposal of property
(1) A person must not dispose of property if:
(a) the property is owned by another person; and
(b) the other person is a body corporate; and
(c) section 137 applies to the body corporate.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
(2) Subsection (1) does not apply if:
(a) the Reserve Bank consents to the disposal; or
(b) for a body corporate under statutory management—the statutory manager consents to the disposal.
141 Moratorium—restrictions on exercise of third party property rights
(1) Section 440B of the Corporations Act 2001 applies during a period in which section 137 of this Act applies to a body corporate in the same way it applies during the administration of a company.
(2) For the purposes of this section, treat the reference in paragraph 440B(2)(a) of the Corporations Act 2001 to the administrator’s written consent as being a reference to:
(a) for a body corporate under statutory management—the statutory manager’s written consent; or
(b) the Reserve Bank’s written consent.
(3) A person must not purport to do an act that a restriction under section 440B of the Corporations Act 2001, as applied by this section, prevents the person from doing.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
(4) Section 441A of the Corporations Act 2001 does not apply in relation to a body corporate during a period in which section 137 of this Act applies to the body corporate.
(5) This section applies despite sections 138, 139 and 140.
Payment Systems and Netting Act 1998 prevails over this section
(6) If there is any inconsistency between:
(a) subsections (1) to (5) of this section; and
(b) the Payment Systems and Netting Act 1998;
that Act prevails to the extent of the inconsistency.
142 Exercise of Reserve Bank powers under this Part not grounds for denial of obligations
(1) Subject to subsection (6), this section applies if a body corporate (the protected body corporate) is party to an arrangement, whether the proper law of the arrangement is:
(a) a law of the Commonwealth or of a State or Territory; or
(b) a law of a foreign country or a part of a foreign country.
(2) None of the matters mentioned in subsection (3) allows the arrangement, or a party to the arrangement (other than the protected body corporate), to do any of the following:
(a) deny any obligation under the arrangement;
(b) accelerate any debt under the arrangement;
(c) terminate or close out:
(i) the arrangement; or
(ii) any transaction relating to the arrangement;
(d) enforce any security under the arrangement.
(3) The matters are as follows:
(a) the protected body corporate being subject to the exercise of a power under this Part by the Reserve Bank;
(b) a body corporate to which subsection (4) applies being subject to the exercise of a power under this Part by the Reserve Bank;
(c) if section 137 applies to a body corporate to which subsection (4) of this section applies—the financial position of:
(i) that body corporate; or
(ii) any other body corporate to which that subsection applies.
(4) For the purposes of paragraph (3)(b) or (c), this subsection applies to:
(a) a related body corporate of the protected body corporate; or
(b) a body corporate that was a related body corporate of the protected body corporate before a transfer of business or shares under this Part.
Person must not act contrary to this section
(5) A party to the arrangement (other than the protected body corporate) must not:
(a) purport to do an act or thing that is not allowed to be done because of this section; or
(b) purport to do an act or thing that can be done only if the arrangement does a thing that the arrangement is not allowed to do because of this section; or
(c) omit to do an act or thing in circumstances where that omission would only be required or permitted if the arrangement did a thing that the arrangement is not allowed to do because of this section.
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
Payment Systems and Netting Act 1998 prevails over this section
(6) If there is any inconsistency between:
(a) subsections (1) to (5) of this section; and
(b) the Payment Systems and Netting Act 1998;
that Act prevails to the extent of the inconsistency.
Arrangements to which this section does not apply
(7) This section does not apply to a kind of arrangement specified in an instrument made under subsection (8).
(8) The Reserve Bank may, by legislative instrument, make a determination specifying kinds of arrangements for the purposes of subsection (7).
143 Stay on enforcing rights merely because the body corporate is under statutory management or subject to a transfer determination
Stay on enforcing rights
(1) A right cannot be enforced against a body corporate for:
(a) the reason that:
(i) the body corporate has come or is under statutory management; or
(ii) the Reserve Bank makes or has made a determination under section 118 that there is to be a transfer of shares in the body corporate; or
(iii) the Reserve Bank makes or has made a determination under section 119 that there is to be a transfer of business of the body corporate; or
(iv) the Reserve Bank gives or has given a direction to the body corporate under subsection 91(1); or
(b) the reason of the body corporate’s financial position; or
(c) a reason that, in substance, is contrary to this subsection;
if the right arises for that reason by express provision (however described) of an arrangement.
Note: This result is subject to sections 144 and 145.
Example: A right to terminate a contract will not be enforceable to the extent that those rights are triggered by the body corporate coming under statutory management.
Period of the stay
(2) The right cannot be enforced as described in subsection (1) during the period (the stay period):
(a) starting when section 137 begins to apply to the body corporate; and
(b) ending at the latest of the following times:
(i) when section 137 ceases to apply to the body corporate;
(ii) if one or more orders are made under subsection (3) of this section for the body corporate as the result of an application made before section 137 ceases to apply to the body corporate—when the last made of those orders ceases to be in force.
(3) The Court:
(a) may order an extension of the period otherwise applying under subsection (2) for the body corporate if the Court is satisfied that the extension is appropriate having regard to the interests of justice; and
(b) before deciding an application for an order under paragraph (a), may grant an interim order, but must not require the applicant to give an undertaking as to damages as a condition for doing so.
Enforcing rights after the stay for reasons relating to earlier circumstances
(4) The right is unenforceable against the body corporate indefinitely after the end of the stay period to the extent that a reason for seeking to enforce the right:
(a) is the body corporate’s financial position before the end of the stay period; or
(b) is any of the following:
(i) the body corporate having come or been under statutory management before the end of the stay period;
(ii) the Reserve Bank having made, before the end of the stay period, a determination under section 118 that there is to be a transfer of shares in the body corporate;
(iii) the Reserve Bank having made, before the end of the stay period, a determination under section 119 that there is to be a transfer of business of the body corporate;
(iv) the Reserve Bank having given, before the end of the stay period, a direction to the body corporate under subsection 91(1); or
(c) is a reason referred to in paragraph (1)(c) of this section.
Note: This result is subject to section 144.
144 Exceptions
(1) Subsection 143(1) or (4) does not apply to enforcing a right against a body corporate if the right is a right under an arrangement entered into after the body corporate comes under statutory management.
(2) Subsection 143(1) or (4) does not apply to enforcing a right to the extent that the Reserve Bank consents in writing to the enforcement of the right.
(3) Subsection 143(4) does not apply to enforcing a right against a body corporate to the extent that a liquidator or provisional liquidator of the body corporate, appointed after the end of the stay period, consents in writing to the enforcement of the right.
145 Stay on body corporate’s right to new advance of money or credit
(1) If:
(a) one or more rights of an entity (within the meaning of the Corporations Act 2001) cannot be enforced against a body corporate for a period because of subsection 143(1); and
(b) the body corporate has a right under an arrangement against the entity for a new advance of money or credit;
that right of the body corporate cannot be enforced during the same period.
(2) Subsection (1) of this section does not apply to a right of a body corporate if:
(a) the body corporate is a related body corporate of the entity mentioned in paragraph (1)(a); and
(b) exercising the right:
(i) constitutes, or constitutes part of, default management; or
(ii) constitutes recovery action; or
(iii) constitutes a funding call on the entity.
146 Self‑executing provisions
(1) The object of subsection (2) is to ensure that a self‑executing provision:
(a) cannot start to apply against a body corporate for certain reasons; and
(b) can be the subject of a Court order providing that the provision can only start to apply against a body corporate with the leave of the Court, and in accordance with such terms (if any) as the Court imposes.
(2) Sections 143 to 145 apply in relation to a self‑executing provision in a corresponding way to the way those sections apply in relation to a right. For this purpose, assume those sections apply with such modifications as are necessary, including any modifications determined in an instrument made under subsection (3).
Note 1: This subsection achieves the object in subsection (1) by extending the application of all of the outcomes, exceptions and powers in sections 143 to 145.
Note 2: These modifications include, for example, treating:
(a) a reference that a right cannot be enforced (however described) as including a reference that a self‑executing provision cannot start to apply; and
(b) the words “if the right arises for that reason by express provision (however described) of an arrangement” as being omitted from subsection 143(1); and
(c) a reference that one or more rights are enforceable as including a reference that one or more self‑executing provisions can start to apply.
(3) The Reserve Bank may, by legislative instrument, determine modifications for the purposes of subsection (2).
(4) In this section:
self‑executing provision means a provision of an arrangement that can start to apply automatically:
(a) for one or more reasons; and
(b) without any party to the arrangement making a decision that the provision should start to apply.
147 Purported enforcement inconsistent with a stay under this Division
A person must not purport to enforce a right if the person is prevented from doing so because of section 143 or 145 (including as applied by section 146).
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
148 When other laws prevail—certain other Commonwealth Acts
If there is any inconsistency between sections 143 to 147 and one of the following Acts, that Act prevails to the extent of the inconsistency:
(a) the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006;
(b) the Autonomous Sanctions Act 2011;
(c) the International Interests in Mobile Equipment (Cape Town Convention) Act 2013;
(d) the Payment Systems and Netting Act 1998.
149 Winding up body corporate
(1) While section 137 applies to a body corporate, it cannot be wound up voluntarily.
(2) The Court is to adjourn the hearing of an application for an order to wind up a body corporate while section 137 applies to the body corporate.
(3) The Court is not to appoint a provisional liquidator of a body corporate while section 137 applies to the body corporate.
150 Reserve Bank and statutory manager not liable in damages for refusing consent
The Reserve Bank or a statutory manager of a body corporate is not liable to an action or other proceeding for damages in respect of a refusal to give consent for the purposes of this Division.
151 Duties of court officer in relation to property of a body corporate
(1) This section applies if an officer of a court (in this section called the court officer), being:
(a) a sheriff (within the meaning of the Corporations Act 2001); or
(b) the registrar or other appropriate officer of the court;
receives written notice of the fact that section 137 applies to a body corporate.
(2) While section 137 applies to a body corporate, the court officer cannot:
(a) take action to sell property of the body corporate under a process of execution; or
(b) pay to a person (other than the statutory manager (if any)):
(i) proceeds of selling property of the body corporate (at any time) under a process of execution; or
(ii) money of the body corporate seized (at any time) under a process of execution; or
(iii) money paid (at any time) to avoid seizure or sale of property of the body corporate under a process of execution; or
(c) take action in relation to the attachment of a debt due to the body corporate; or
(d) pay to a person (other than the statutory manager (if any)) money received because of the attachment of such a debt.
(3) If the body corporate is under statutory management, the court officer must:
(a) deliver to the statutory manager any property of the body corporate that is in the court officer’s possession under a process of execution (whenever begun); and
(b) pay to the statutory manager all proceeds or money of a kind referred to in paragraph (2)(b) or (d) that:
(i) are in the court officer’s possession; or
(ii) have been paid into the court and have not since been paid out.
(4) The costs of the execution or attachment are a first charge on property delivered under paragraph (3)(a) or proceeds or money paid under paragraph (3)(b).
(5) In order to give effect to a charge under subsection (4) on proceeds or money, the court officer may retain, on behalf of the person entitled to the charge, so much of the proceeds or money as the court officer thinks necessary.
(6) The Court may, if it is satisfied that it is appropriate to do so, permit the court officer to take action, or to make a payment, that subsection (2) would otherwise prevent.
(7) A person who buys property in good faith under a sale under a process of execution gets a good title to the property as against the body corporate and the statutory manager (if any), despite anything else in this section.
152 General power to make orders
(1) The Court may make such orders as it thinks appropriate about how this Division is to operate in relation to a particular body corporate.
(2) An order may be made subject to conditions.
(3) An order may be made on the application of:
(a) the body corporate; or
(b) a creditor of the body corporate; or
(c) a statutory manager of the body corporate; or
(d) the Reserve Bank; or
(e) any other interested person.
Division 7—Temporary suspension of termination rights
153 Application of this Division
(1) This Division applies to a body corporate if:
(a) the body corporate:
(i) is a designated entity; or
(ii) is a related body corporate of a designated entity and is incorporated in Australia; and
(b) a declaration under subsection (2) is in force in relation to the designated entity.
(2) For the purposes of paragraph (1)(b), the Reserve Bank may, by notifiable instrument, declare that this Division applies in relation to a designated entity if the Reserve Bank intends:
(a) to take either or both of the actions in subsection 93(2) in relation to the entity; or
(b) to make a determination under section 118 that there is to be a transfer of shares in the entity; or
(c) to make a determination under section 119 that there is to be a transfer of business of the entity; or
(d) to give a direction to the entity under subsection 91(1).
(3) The Reserve Bank must revoke a declaration made under subsection (2) in relation to a designated entity if:
(a) the entity begins to be under statutory management; or
(b) the Reserve Bank makes the determination mentioned in paragraph (2)(b) or (c); or
(c) the Reserve Bank gives the direction mentioned in paragraph (2)(d); or
(d) the Reserve Bank ceases intending to do the things mentioned paragraphs (2)(a) to (d).
Note: If paragraph (a), (b) or (c) of this subsection applies, Division 6 (moratorium and stays during resolution) will apply in relation to the entity.
(4) Subsection (3) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a declaration in force under subsection (2) of this section.
154 Stay on exercising termination rights
Stay on exercising termination rights
(1) Subject to subsections (2) and (3), a right to terminate:
(a) an arrangement; or
(b) an obligation under an arrangement;
that arises:
(c) by express provision (however described) of an arrangement; or
(d) because of anything done in accordance with a direction given under Division 3;
cannot be exercised if a body corporate to which this Division applies is a party to the arrangement.
Rights not subject to the stay
(2) Subsection (1) does not apply to the right if it is:
(a) a right that is exercisable only in particular circumstances (other than circumstances relating to the manner in which the right is exercised, such as a requirement relating to giving notice about exercising the right); or
(b) a right:
(i) under an arrangement entered into after this Division begins to apply to the body corporate; or
(ii) that arises because of anything done in accordance with a direction given, after this Division begins to apply to the body corporate, under Division 3.
(3) Subsection (1) does not apply to the exercise of a right if, before the exercise of the right:
(a) the Reserve Bank; or
(b) if a liquidator or provisional liquidator of the body corporate is appointed after this Division ceases to apply to the body corporate—the liquidator or provisional liquidator;
consents in writing to the exercise of the right.
155 Self‑executing provisions
(1) The object of subsection (2) is to ensure that a self‑executing provision:
(a) cannot start to apply for certain reasons; and
(b) can be the subject of a Court order providing that the provision can only start to apply with the leave of the Court, and in accordance with such terms (if any) as the Court imposes.
(2) Section 154 applies in relation to a self‑executing provision in a corresponding way to the way that section applies in relation to a right to terminate:
(a) an arrangement; or
(b) an obligation under an arrangement.
For this purpose, assume that section applies with such modifications as are necessary, including any modifications determined in an instrument made under subsection (3).
Note 1: This subsection achieves the object in subsection (1) by extending the application of all of the outcomes, exceptions and powers in section 154.
Note 2: These modifications include, for example, treating:
(a) a reference that a right cannot be exercised as including a reference that a self‑executing provision cannot start to apply; and
(b) a reference that one or more rights are exercisable as including a reference that one or more self‑executing provisions can start to apply.
(3) The Reserve Bank may, by legislative instrument, determine modifications for the purposes of subsection (2).
(4) In this section:
self‑executing provision means a provision of an arrangement that:
(a) can start to apply automatically:
(i) for one or more reasons; and
(ii) without any party to the arrangement making a decision that the provision should start to apply; and
(b) terminates:
(i) an arrangement; or
(ii) an obligation under an arrangement.
156 Purported exercise of rights inconsistent with a stay under this Division
A person must not purport to exercise a right if the person is prevented from doing so because of section 154 (including as applied by section 155).
Note: An injunction may be granted under Part 7 of the Regulatory Powers Act in respect of a contravention of this subsection: see section 186.
157 When other laws prevail—certain other Commonwealth Acts
If there is any inconsistency between sections 154 to 156 and one of the following Acts, that Act prevails to the extent of the inconsistency:
(a) the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006;
(b) the Autonomous Sanctions Act 2011;
(c) the International Interests in Mobile Equipment (Cape Town Convention) Act 2013;
(d) the Payment Systems and Netting Act 1998.
158 Circumstances where a transaction by statutory manager not voidable under section 588FE of the Corporations Act 2001
A transaction of a body corporate is not voidable under section 588FE of the Corporations Act 2001 merely because:
(a) the transaction was entered into at a time when this Division applied to the body corporate; and
(b) the transaction is:
(i) an uncommercial transaction (within the meaning of that Act) of the body corporate; or
(ii) an unfair preference (within the meaning of that Act) given by the body corporate to a creditor of the body corporate; or
(iii) an insolvent transaction (within the meaning of that Act) of the body corporate; or
(iv) a creditor‑defeating disposition (within the meaning of that Act) by the body corporate.
159 General power to make orders
(1) The Court may make such orders as it thinks appropriate about how this Division is to operate in relation to a particular body corporate.
(2) An order may be made subject to conditions.
(3) An order may be made on the application of:
(a) the body corporate; or
(b) a creditor of the body corporate; or
(c) a statutory manager of the body corporate; or
(d) the Reserve Bank; or
(e) any other interested person.
Division 8—Funding for crisis resolution
160 Authorising arrangements for the purposes of crisis resolution
Authorising the making of arrangements
(1) If one or more conditions in section 90 are satisfied in relation to a designated entity, the Minister may, by legislative instrument and with the Finance Minister’s written approval, authorise the making of arrangements by the Commonwealth for the purposes of ensuring the continuity of one or more cash distribution services that:
(a) are provided by the designated entity; and
(b) are critical to the availability of cash in Australia.
(2) Without limiting subsection (1), the arrangements may include grants, loans, indemnities, guarantees, warranties, investments of money or equity investments.
Limit on total amounts payable under authorised contracts etc.
(3) The authorisation must specify the amount (if any) the Commonwealth may pay under the authorised arrangements.
(4) The total of all the amounts specified under subsection (3) in authorisations (taking account of any amendments of those authorisations) in relation to the condition or conditions being satisfied must not exceed $400 million.
Note: See also section 71 of the Public Governance, Performance and Accountability Act 2013 (approval of proposed expenditure by a Minister).
Amending specification of amount
(5) The Minister may, by legislative instrument and with the Finance Minister’s written approval, amend an authorisation made under this section, but only to change the specification of an amount under subsection (3), within the limit set out in subsection (4).
Authorisation cannot be revoked
(6) The Minister cannot revoke an authorisation made under this section.
Authorisation or amendment not disallowable
(7) Section 42 (disallowance) of the Legislation Act 2003 does not apply to an authorisation or amendment made under this section.
When authorisation or amendment commences
(8) An authorisation or amendment made under this section commences at the time it is made.
(9) Section 12 of the Legislation Act 2003 does not apply to an authorisation or amendment made under this section.
161 Appropriation of Consolidated Revenue Fund
The Consolidated Revenue Fund is appropriated for the purposes of making a payment under an arrangement authorised under section 160.
Division 9—Other matters
Subdivision A—Other powers of the Reserve Bank
162 Reserve Bank may apply for body corporate to be wound up
(1) The Reserve Bank may apply under section 459P of the Corporations Act 2001 to the Court for an order that a body corporate be wound up in insolvency if:
(a) a condition in section 90 is satisfied in relation to a designated entity; and
(b) the body corporate:
(i) is the designated entity; or
(ii) is a related body corporate of the designated entity and is incorporated in Australia; or
(iii) was a related body corporate of the designated entity before a transfer of business or shares under this Part and is incorporated in Australia; and
(c) the Reserve Bank considers that the body corporate is insolvent and could not be restored to solvency within a reasonable period.
(2) If the Reserve Bank, in accordance with subsection (1), makes an application under section 459P of the Corporations Act 2001, the Reserve Bank must inform ASIC of the application as soon as possible.
Notification of proposal to apply for body corporate to be wound up
(3) Before making an application in accordance with subsection (1), the Reserve Bank must:
(a) notify the body corporate, in writing, that the Reserve Bank is proposing to make the application; and
(b) invite the body corporate to make submissions to the Reserve Bank within 10 business days after the notice is given regarding the proposal to make the application.
(4) The Reserve Bank must:
(a) consider any submissions made under paragraph (3)(b); and
(b) notify the body corporate, in writing, of whether the Reserve Bank intends to proceed with making the application.
Subdivision AA—Protections for employees
162A Powers must not be exercised to lessen employee entitlements
The Reserve Bank must not take action in accordance with this Part in relation to a designated entity if:
(a) the action would result in the entitlements of an employee of the designated entity being less beneficial than they were immediately before the action was taken; or
(b) each of the following are satisfied:
(i) there is an employee (the current employee) of the designated entity immediately before the action is taken;
(ii) the action would result in the engagement of a person (the new employee) to perform the same, or substantially the same, work as that performed by the current employee;
(iii) the entitlements of the new employee would be less beneficial than the entitlements of the current employee.
Subdivision B—Other matters
163 Expert report for acquisition or disposal of assets
(1) This section applies if:
(a) a statutory manager of a body corporate proposes to:
(i) take action under subsection 99(1) (recapitalisation actions); or
(ii) otherwise take action on behalf of the body corporate to dispose of a business of the body corporate; or
(iii) otherwise take action on behalf of the body corporate to acquire or dispose of an asset (excluding an action to be taken in the ordinary course of the body corporate’s business); or
(b) the Reserve Bank proposes to make:
(i) a determination under section 118 that there is to be a transfer of shares in the body corporate; or
(ii) a determination under section 119 that there is to be a transfer of business of the body corporate; or
(c) the Reserve Bank proposes to direct a body corporate under subsection 91(1):
(i) to recapitalise; or
(ii) to take other action to dispose of a business of the body corporate; or
(iii) to take other action to acquire or dispose of an asset (excluding an action to be taken in the ordinary course of the body corporate’s business);
or to vary a direction under subsection 92(1) such that, following the variation, the direction will include a direction of the kind mentioned in subparagraph (i), (ii) or (iii) of this paragraph.
Note: For example, a report may be required for some actions taken under section 96.
Expert report
(2) Before determining terms for an action referred to in subsection (1), the statutory manager or Reserve Bank (as the case may be) must obtain, and consider, a report from an expert (within the meaning of the Corporations Act 2001) on:
(a) if the action is an action referred to in paragraph (1)(a) or (c)—the fair value of the business or asset concerned; or
(b) if the action is an action referred to in paragraph (1)(b)—the fair value of the business, part of the business or shares to be transferred.
(3) The expert must not be an associate (within the meaning of the Corporations Act 2001) of:
(a) the body corporate; or
(b) if the action is to be taken by a statutory manager (other than the Reserve Bank)—the statutory manager.
Publication
(4) The Reserve Bank may publish on its website details of, or relating to, the report.
Exemption from obtaining expert report
(5) Despite subsection (2), the Reserve Bank need not obtain the report if the Reserve Bank reasonably believes that obtaining the report is likely to pose a threat to the continuity of one or more cash distribution services that are critical to the availability of cash in Australia.
Contravention does not invalidate act
(6) A contravention of subsection (2) or (3) does not affect the validity of anything referred to in subsection (1).
164 Protection from liability for acts or omissions in good faith
(1) An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person if:
(a) the person does the thing, or omits to do the thing, for the purpose of any of the following:
(i) complying with a direction or determination given under this Part by the Reserve Bank;
(ii) taking a measure, or an action, specified in such a direction or determination;
(iii) doing, or refraining from doing, anything in accordance with such a direction or determination; and
(b) it is reasonable for the person to do the thing, or to omit to do the thing, in order to achieve that purpose; and
(c) the person is any of the following:
(i) an officer or senior manager of the body corporate, or of a related body corporate or of a body corporate that was a related body corporate of a designated entity before a transfer of business or shares under this Part;
(ii) an employee or agent of the body corporate, or of a related body corporate or of a body corporate that was a related body corporate of a designated entity before a transfer of business or shares under this Part;
(iii) the body corporate, a related body corporate or a body corporate that was a related body corporate of a designated entity before a transfer of business or shares under this Part;
(iv) a person engaged to provide services (including advice) to the body corporate, a related body corporate, or a body corporate that was a related body corporate of a designated entity before a transfer of business or shares under this Part.
(2) For the purposes of paragraph (1)(b), treat it as reasonable for a person to do a thing, or to omit to do a thing, in order to achieve a purpose unless no reasonable person in that person’s position would do the thing, or omit to do the thing, in order to achieve that purpose.
Statutory managers
(3) An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person as the statutory manager of a body corporate.
Directors
(4) An action, suit or proceeding (whether criminal or civil) does not lie against a director of a body corporate in relation to anything done, or omitted to be done, in good faith by the director, to the extent that the director is acting with the written approval of the statutory manager of the body corporate or the Reserve Bank under subsection 102(2).
(5) An action, suit or proceeding (whether criminal or civil) for a contravention of:
(a) a duty owed under Part 2D.1 of the Corporations Act 2001; or
(b) a duty at common law or in equity that is equivalent to a duty owed under that Part;
does not lie against a director of a body corporate in relation to anything done, or omitted to be done, in good faith by the director while the body corporate is under statutory management.
Part 8—Powers relating to information and assistance
Division 1—Preliminary
165 Simplified outline of this Part
This Part contains provisions about the ACCC’s powers to make record‑keeping rules and gives the Reserve Bank information‑gathering powers and the power to make a secrecy determination.
The ACCC may make record‑keeping rules with regard to the object of this Act and to assist in the performance or exercise of its functions or powers. The ACCC must consult the Reserve Bank before making record‑keeping rules. The ACCC must also review the record‑keeping rules within certain periods. Enforcement mechanisms for the record‑keeping rules include civil penalties.
The Reserve Bank is given powers to direct information or documents to be provided to the Reserve Bank in relation to the performance or exercise of its functions or powers. The Reserve Bank may also make a determination that specified information obtained or generated in connection with Part 7 (crisis resolution) of this Act is prohibited from disclosure. Certain persons and circumstances are excepted from this prohibition. Enforcement mechanisms for these provisions include civil and criminal penalties.
This Part also outlines circumstances in which a person is required to provide assistance to the Reserve Bank or another person, as well as circumstances in which certain persons can use or disclose information obtained or generated in connection with the performance of functions or duties under this Act.
Division 2—Record‑keeping rules
166 ACCC may make record‑keeping rules
Making record‑keeping rules
(1) The ACCC may, by legislative instrument, make rules (the record‑keeping rules) for and in relation to requiring one or more specified designated entities to:
(a) keep and retain records; or
(b) prepare reports consisting of information contained in those records; or
(c) give any or all of the reports to the ACCC.
Note: Information and reports obtained by the ACCC under the record‑keeping rules are protected from disclosure under section 155AAA of the Competition and Consumer Act 2010.
(2) Without limiting subsection (1), the record‑keeping rules may do any or all of the following:
(a) specify the manner and form in which the records are to be kept;
(b) specify the manner and form in which reports are to be prepared;
(c) provide for:
(i) the preparation of reports as and when required by the ACCC; or
(ii) the preparation of periodic reports relating to such regular intervals as are specified in those rules;
(d) require or permit a report prepared in accordance with those rules to be given to the ACCC, in accordance with specified software requirements and specified authentication requirements:
(i) on a specified kind of data processing device (within the meaning of the Telecommunications Act 1997); or
(ii) by way of a specified kind of electronic transmission.
Procedural matters
(3) Before the ACCC makes record‑keeping rules, the ACCC must consult with the Reserve Bank.
(4) If record‑keeping rules apply to a designated entity, the ACCC must give the entity a copy of those rules.
(5) The ACCC must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to the operation of this Act.
Review of record‑keeping rules
(6) The ACCC must review record‑keeping rules at least once in each of the following periods:
(a) the period of 1 year after the commencement of those rules;
(b) the period of 5 years after the completion of the previous review of those rules.
(7) In reviewing record‑keeping rules under subsection (6), the ACCC must have regard to:
(a) the object of this Act; and
(b) whether the record‑keeping rules assist in the performance or exercise of the functions or powers of the ACCC under this Act.
Extension of time for giving report
(8) The ACCC may, by written notice given to a designated entity, allow the entity such further time as is specified in the notice to prepare and give a specified report required under the record‑keeping rules.
Civil penalty provisions
(9) A designated entity is liable to a civil penalty if:
(a) record‑keeping rules apply to the entity; and
(b) the entity fails to comply with those rules.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(10) A designated entity is liable to a civil penalty if:
(a) record‑keeping rules require the entity to make a record of any matter or thing; and
(b) the entity makes the record; and
(c) the record does not correctly record the matter or thing.
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—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
Other matters
(11) This section does not limit section 155 of the Competition and Consumer Act 2010 (which is about the general information‑gathering powers of the ACCC).
Division 3—Powers of the Reserve Bank relating to information
Subdivision A—Reserve Bank’s information gathering powers
167 Reserve Bank—directions to give information or documents relevant to designation under Part 2
(1) The Reserve Bank may, by written notice given to a person to whom subsection (2) applies, direct the person to give any of the following to the Reserve Bank:
(a) specified information;
(b) specified documents;
(c) documents containing specified information.
Note: The secrecy provision in section 79A of the Reserve Bank Act 1959 applies to information and documents obtained by the Reserve Bank under this section.
(2) This subsection applies to a person if:
(a) the Reserve Bank reasonably believes that the person is capable of giving the information or documents; and
(b) the Reserve Bank reasonably believes that the information or documents would assist the Reserve Bank in the performance or exercise of its functions or powers under Part 2 (about designating entities for the purposes of this Act).
(3) The direction:
(a) must specify a reasonable time by which, or a reasonable period during which, it is to be complied with; and
(b) may specify the form and manner in which the information or documents must be given.
(4) A person is liable to a civil penalty if:
(a) the person is given a notice under subsection (1); and
(b) the person fails to comply with the notice.
Civil penalty:
(a) for a body corporate—5,000 penalty units; and
(b) for an individual—1,000 penalty units.
(5) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (4) of this section.
168 Reserve Bank—directions to give information or documents relating to other powers
(1) The Reserve Bank may, by written notice given to a person to whom subsection (2) applies, direct the person to give any of the following to the Reserve Bank:
(a) specified information;
(b) specified documents;
(c) documents containing specified information.
Note: The secrecy provision in section 79A of the Reserve Bank Act 1959 applies to information and documents obtained by the Reserve Bank under this section.
(2) This subsection applies to a person if:
(a) the person:
(i) is a body corporate that is a designated entity; or
(ii) is a related body corporate of a designated entity and is incorporated in Australia; or
(iii) was a related body corporate of a designated entity before a transfer of business or shares under Part 7 and is incorporated in Australia; or
(iv) is an officer of a body corporate mentioned in subparagraph (i), (ii) or (iii); and
(b) the Reserve Bank reasonably believes that the person is capable of giving the information or documents; and
(c) the Reserve Bank reasonably believes that the information or documents would assist the Reserve Bank:
(i) for a body corporate mentioned in subparagraph (a)(i) or (ii) or an officer of such a body corporate—to perform its functions, or exercise its powers, under Part 6; or
(ii) in any case—to manage or respond to a condition in section 90 being satisfied in relation to the entity.
(3) The direction must specify a reasonable time by which, or a reasonable period during which, it is to be complied with.
(4) Without limiting subsection (1), the direction may:
(a) specify the form and manner in which the information or documents must be given; or
(b) direct a person to give information or documents over a specified period, or by reference to specified events or matters that occur or are anticipated to occur during a specified period.
(5) A person contravenes this subsection if:
(a) the person is given a direction under subsection (1); and
(b) the person fails to comply with the direction.
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
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.
(7) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (6) of this section.
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
(9) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (8) of this section.
169 Matters relating to Reserve Bank directions
Variation or revocation
(1) The Reserve Bank:
(a) may vary a direction given to a person under subsection 167(1) if paragraphs 167(2)(a) and (b) would apply to the direction as varied; or
(b) may vary a direction given to a person under subsection 168(1) if paragraphs 168(2)(b) and (c) would apply in relation to the direction as varied.
(2) The Reserve Bank may revoke a direction given to a person under subsection 167(1) or 168(1) if the Reserve Bank:
(a) for a direction given other than because of subparagraph 168(2)(c)(ii)—no longer reasonably believes that the person can give the Reserve Bank the specified information, the specified documents or documents containing the specified information; or
(b) for a direction given because of subparagraph 168(2)(c)(ii):
(i) no longer reasonably believes that the person can give the Reserve Bank the specified information, the specified documents or documents containing the specified information; or
(ii) no longer reasonably believes that the specified information, the specified documents or documents containing the specified information would assist the Reserve Bank to manage or respond to a condition in section 90 being satisfied in relation to the relevant designated entity, including because the condition is not satisfied.
(3) The variation or revocation must be given to the person in writing.
Directions are not legislative instruments
(4) A direction given under subsection 167(1) or 168(1), a variation under subsection (1) of this section or a revocation under subsection (2) of this section is not a legislative instrument.
170 Reserve Bank’s power to require expert report
Expert appointed by Reserve Bank
(1) The Reserve Bank may, by written notice given to a designated entity and a person (the expert), appoint the expert to provide the Reserve Bank with an expert report on specified matters relating to:
(a) the entity’s compliance with its obligations under Part 6 or 7; or
(b) the entity’s obligations under this Act, the rules or any other legislative instrument made under this Act, and the Reserve Bank performing functions or duties, or exercising powers, under or in connection with this Act, the rules, or any other legislative instrument made under this Act, in relation to those obligations.
Qualifications for appointment
(2) A person cannot be appointed under subsection (1) unless the Reserve Bank is satisfied that the person has the necessary skills or experience to provide the expert report.
Designated entity must assist expert
(3) The entity must give all information, explanation and assistance to the expert as the expert reasonably requests for the preparation and provision of the expert report.
(4) If the expert requests the entity to give the expert information, explanation or assistance under subsection (3), the Reserve Bank may, by written notice given to the entity, direct the entity to comply with the request by a specified day.
(5) A body corporate contravenes this subsection if:
(a) the body corporate is a designated entity; and
(b) the body corporate is given a direction under subsection (4); and
(c) the body corporate fails to comply with the direction.
Fault‑based offence
(6) A person commits an offence if the person contravenes subsection (5).
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.
(7) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (6) of this section.
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (5).
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.
(9) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (8) of this section.
171 Reserve Bank’s power to require special report
(1) The Reserve Bank may give a designated entity a written notice requiring the entity to give the Reserve Bank a special report within the time specified in the notice.
(2) The notice must specify the particular matters that the special report must address.
(3) The Reserve Bank may extend the time for complying with the notice by written notice given to the designated entity.
Failure to comply with notice
(4) A body corporate contravenes this subsection if:
(a) the body corporate is a designated entity; and
(b) the Reserve Bank gives the body corporate a notice under subsection (1); and
(c) the body corporate fails to comply with the notice.
(5) Subsection (4) does not apply to the extent that the notice requires the body corporate to include information or address matters in the special report that:
(a) are not within the knowledge or control of the body corporate; or
(b) cannot reasonably be ascertained by the body corporate.
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
(6) A person commits an offence if the person contravenes subsection (4).
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.
(7) Subsection 4K(2) (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence against subsection (6) of this section.
Civil penalty provision
(8) A person is liable to a civil penalty if the person contravenes subsection (4).
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.
(9) Subsection 93(2) (continuing contraventions) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (8) of this section.
Subdivision B—Secrecy determinations
172 Determinations that information is covered by secrecy provision
(1) The Reserve Bank may determine, in writing, that specified information is covered by this subsection if:
(a) the information is:
(i) information that reveals the fact that a specified direction given to a body corporate under subsection 91(1) was given; or
(ii) information that is, or is contained in a specified document, given to a body corporate covered by subsection (2) of this section by the Reserve Bank in the exercise of a power or the performance of a function under Part 7 (crisis resolution); and
(b) the Reserve Bank reasonably believes that the determination is appropriate to manage or respond to a condition in section 90 being satisfied in relation to a designated entity.
(2) A body corporate is covered by this section if it is incorporated in Australia and it:
(a) is a designated entity; or
(b) is a related body corporate of a designated entity; or
(c) was a related body corporate of a designated entity before a transfer of business or shares under Division 5 of Part 7; or
(d) is a body corporate to which information has been provided under section 128 in relation to a transfer.
(3) As soon as practicable after making the determination, the Reserve Bank must give the body corporate to which the determination relates a copy of the determination.
(4) As soon as practicable after the Reserve Bank gives the body corporate a copy of the determination under subsection (3), the body corporate must:
(a) take reasonable steps to discover who is covered by paragraphs 174(3)(b) and (c) in relation to the information specified in the determination; and
(b) if it is practicable to do so—give a copy of the determination to each person who the body corporate believes to be so covered.
(5) A body corporate contravenes this subsection if:
(a) the body corporate is given a copy of a determination under subsection (3); and
(b) the body corporate is required under subsection (4) to take action in relation to the determination; and
(c) the body corporate fails to comply with the requirement.
Fault‑based offence
(6) A body corporate commits an offence if the body corporate contravenes subsection (5).
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
(7) A body corporate is liable to a civil penalty if the body corporate contravenes subsection (5).
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.
Reserve Bank must consider other determinations
(8) If the Reserve Bank makes a determination under subsection (1), the Reserve Bank must consider whether to also make a determination under section 175 (determination that disclosure of specified information is not prohibited).
Determination not a legislative instrument
(9) A determination made under subsection (1) is not a legislative instrument.
173 Variation or revocation of determinations
(1) The Reserve Bank may, in writing, vary a determination made under subsection 172(1) if paragraphs 172(1)(a) and (b) would apply in relation to the determination as varied.
(2) The Reserve Bank may, in writing, revoke a determination made under subsection 172(1).
(3) As soon as practicable after making the variation or revocation, the Reserve Bank must give the body corporate to which the determination relates a copy of the variation or revocation.
(4) As soon as practicable after the Reserve Bank gives the body corporate a copy of the variation or revocation under subsection (3), the body corporate must:
(a) if it is practical to do so—give a copy of the variation or revocation to each person to whom the body corporate gave:
(i) a copy of the determination under paragraph 172(4)(b); or
(ii) a copy of an earlier variation of the determination (if any) under this paragraph; or
(iii) a copy of the determination as previously varied (if applicable) under paragraph (b) of this subsection; and
(b) in the case of a variation that results in additional information being specified in the determination:
(i) take reasonable steps to discover who is covered by paragraphs 174(3)(b) and (c) in relation to the additional information (and is not covered by paragraph (a) of this subsection); and
(ii) if it is practicable to do so—give a copy of the determination, as varied, to each person who the body corporate believes to be so covered.
(5) A body corporate contravenes this subsection if:
(a) the body corporate is given a copy of a variation or revocation under subsection (3); and
(b) the body corporate is required under subsection (4) to take action in relation to the variation or revocation; and
(c) the body corporate fails to comply with the requirement.
Fault‑based offence
(6) A body corporate commits an offence if the body corporate contravenes subsection (5).
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
(7) A body corporate is liable to a civil penalty if the body corporate contravenes subsection (5).
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.
Other matters
(8) A variation or revocation under this section is not a legislative instrument.
174 Prohibition on disclosing information covered by secrecy provision
Fault‑based offence
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is covered by a determination made under subsection 172(1); and
(c) the person is, or has been, covered by subsection (3) of this section in relation to the information; and
(d) the disclosure of the information prejudices, or could reasonably be expected to prejudice:
(i) the stability of the cash distribution system; or
(ii) the continuity of one or more cash distribution services that are critical to the availability of cash in Australia.
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
(2) A person is liable to a civil penalty if:
(a) the person discloses information; and
(b) the information is covered by a determination made under subsection 172(1); and
(c) the person is, or has been, covered by subsection (3) of this section in relation to the information.
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.
Relevant persons
(3) A person is covered by this subsection in relation to information covered by a determination made under subsection 172(1) if the person is:
(a) the body corporate to which the determination relates; or
(b) at or after the time when the Reserve Bank gave the direction or information, any of the following of the body corporate to which the determination relates:
(i) an officer;
(ii) an employee;
(iii) a contractor;
(iv) a statutory manager (other than the Reserve Bank); or
(c) a person who, because of the person’s employment or engagement, or in the course of that employment or engagement, has obtained information covered by the determination.
Exception
(4) Subsection (1) or (2) does not apply if:
(a) the disclosure is in relation to information that has already been lawfully made available to the public; or
(b) the disclosure is required by an order or direction of a court or tribunal; or
(c) the disclosure is made to a Royal Commission (within the meaning of the Royal Commissions Act 1902); or
(d) both of the following apply:
(i) the disclosure is covered by a determination made under section 175;
(ii) if the Reserve Bank has included any conditions in the determination—those conditions are satisfied; or
(e) the disclosure is made for the purposes of seeking review of the direction given under subsection 91(1) or a decision made in relation to the direction; or
(f) both of the following apply:
(i) the disclosure is to the person’s lawyer (within the meaning of the Corporations Act 2001);
(ii) the purpose of the person making the disclosure is for the lawyer to provide legal advice, or another legal service, in relation to the direction; or
(g) the disclosure is covered by section 176 or 177; or
(h) the disclosure is made in accordance with section 179; or
(i) the disclosure is made in circumstances (if any) specified in the rules; or
(j) the disclosure is made by a person (the relevant person) covered by subsection (3) of this section and all of the following apply:
(i) the relevant person is disclosing the information to another person covered by that subsection;
(ii) the information was disclosed to the relevant person for a particular purpose in circumstances where paragraph (d), (e), (f), (g), (h) or (i) of this subsection applies;
(iii) the disclosure by the relevant person is for the same purpose.
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).
175 Determination that disclosure of specified information is not prohibited
Determinations relating to specified persons
(1) For the purposes of paragraph 174(4)(d), the Reserve Bank may, in writing, make a determination covering a disclosure of information that:
(a) is made by a specified person who is covered by subsection 174(3) in relation to specified information or information that is in a specified class of information; and
(b) is of the specified information, the information that is in the specified class of information, or a specified part of such information.
(2) The Reserve Bank must give a copy of the determination, as soon as practicable after making it, to:
(a) the body corporate to which the determination made under subsection 172(1) relates; and
(b) the person specified, or each person specified, in the determination.
Determinations relating to specified classes of persons
(3) For the purposes of paragraph 174(4)(d), the Reserve Bank may, in writing, make a determination covering a disclosure of information that:
(a) is made by a person in a specified class of persons covered by subsection 174(3) in relation to specified information or information that is in a specified class of information; and
(b) is of the specified information, the information that is in the specified class of information, or a specified part of such information.
(4) The Reserve Bank must, as soon as practicable after making the determination under subsection (3):
(a) give a copy of the determination to the body corporate to which the determination made under subsection 172(1) relates; and
(b) take reasonable steps to discover who is in the class of persons specified in the determination; and
(c) if it is practicable to do so—give a copy of the determination to each person who the Reserve Bank believes to be in that class.
Conditions in determinations
(5) The Reserve Bank may include conditions in a determination made under subsection (1) or (3) that relate to any of the following:
(a) the kind of entities to which the disclosure may be made;
(b) the way in which the disclosure is to be made;
(c) any other matter that the Reserve Bank considers appropriate.
Determination not a legislative instrument
(6) A determination made under subsection (1) or (3) is not a legislative instrument.
176 Disclosure under the Reserve Bank Act
(1) For the purposes of paragraph 174(4)(g), a disclosure of information by a person is covered by this section if:
(a) the person is:
(i) an officer (within the meaning of subsection 79A(1) of the Reserve Bank Act 1959); or
(ii) a Commonwealth officer (within the meaning of the Crimes Act 1914) who acquired the information because of, or in the course of, the Commonwealth officer’s employment (other than employment with the body corporate to which the relevant determination made under subsection 172(1) of this Act relates); and
(b) the information is protected information (within the meaning of subsection 79A(1) of the Reserve Bank Act 1959); and
(c) the disclosure is not prohibited under subsection 79A(2) of the Reserve Bank Act 1959.
(2) For the purposes of subsection (1) of this section:
(a) treat a reference in the definition of protected information in subsection 79A(1) of the Reserve Bank Act 1959 to information disclosed or obtained in the course of, or for the purposes of, the performance or exercise of the functions or powers of the Reserve Bank under the cash distribution framework (as defined in that Act) as including a reference to information referred to in paragraph 172(1)(a) of this Act; and
(b) subparagraph (e)(i) of the definition of officer in subsection 79A(1) of the Reserve Bank Act 1959 applies, in relation to information that is protected information only because of paragraph (a) of this subsection, as if the reference in paragraph (e) of that definition to employment or engagement were a reference to employment or engagement:
(i) with the Reserve Bank; or
(ii) for the purposes of assisting the Reserve Bank in the performance or exercise of its functions or powers; and
(c) treat a reference in subsection 79A(2) of the Reserve Bank Act 1959 to a person who is or has been an officer as including a reference to a person to whom subparagraph (1)(a)(ii) of this section applies.
177 Disclosure under the Competition and Consumer Act
(1) For the purposes of paragraph 174(4)(g), a disclosure of information by a person is covered by this section if:
(a) the person is a Commission official (within the meaning of subsection 155AAA(21) of the Competition and Consumer Act 2010); and
(b) the information is protected information (within the meaning of subsection 155AAA(21) of the Competition and Consumer Act 2010); and
(c) the disclosure is not prohibited by section 155AAA of the Competition and Consumer Act 2010.
(2) For the purposes of subsection (1) of this section, treat a reference in the definition of protected information in subsection 155AAA(21) of the Competition and Consumer Act 2010 to information that was obtained by the ACCC under the cash distribution framework (as defined in that Act) as including a reference to information referred to in paragraph 172(1)(a) of this Act.
Division 4—Assisting the Reserve Bank and certain other persons
178 Obligation to assist the Reserve Bank and certain other persons
(1) A person (the relevant person) contravenes this subsection if:
(a) the relevant person is:
(i) a designated entity; or
(ii) an officer of a designated entity; and
(b) any of the following applies:
(i) the Reserve Bank reasonably requests the relevant person’s assistance in relation to the performance of the Reserve Bank’s functions under Part 6 or 7;
(ii) a statutory manager reasonably requests the relevant person’s assistance in relation to the performance of the statutory manager’s functions under Part 7;
(iii) a person engaged to prepare a report mentioned in subsection 163(2) (which deals with an expert report for acquisition or disposal of assets) reasonably requests the relevant person’s assistance in connection with preparing the report; and
(c) the relevant person fails to comply with the request.
(2) Without limiting paragraph (1)(b), such assistance may include showing the entity’s books or giving other information.
Fault‑based offence
(3) A person commits an offence if the person contravenes subsection (1).
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).
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.
Division 5—Use and disclosure of information
179 Use and disclosure of information
Use and disclosure—general
(1) A person covered by subsection (2) may use, make a record of or disclose information covered by subsection (3) in the course of or for the purposes of:
(a) performing functions or duties, or exercising powers, under or in connection with this Act; or
(b) assisting another person to perform functions or duties, or exercise powers, under or in connection with this Act.
Note: This section provides an authorisation for the purposes of the Privacy Act 1988 and other laws.
(2) This subsection covers the following persons:
(a) the Minister;
(b) the Secretary of the Department;
(c) an APS employee in the Department;
(d) the Finance Minister;
(e) the Secretary of the Department administered by the Finance Minister;
(f) an APS employee in the Department administered by the Finance Minister;
(g) the Reserve Bank;
(h) a person who is an officer within the meaning of subsection 79A(1) of the Reserve Bank Act 1959, except a person mentioned in paragraph (d) or (e) of the definition of officer in that subsection;
(i) the ACCC;
(j) a member of the Commission (within the meaning of the Competition and Consumer Act 2010);
(k) an associate member of the ACCC;
(l) a member of the staff of the ACCC;
(m) a person who, because of the person’s employment or engagement, or in the course of that employment or engagement, has obtained information or documents under, or for the purposes of, this Act.
(3) This subsection covers information obtained or generated by a person in the course of or for the purposes of:
(a) performing functions or duties, or exercising powers, under this Act; or
(b) assisting another person to perform functions or duties, or exercise powers, under this Act.
(4) A reference in this section to this Act includes a reference to:
(a) an instrument made under this Act; and
(b) the Regulatory Powers Act as it applies in relation to this Act.
Use and disclosure—cash‑related contractual chain orders
(5) Without limiting subsection (1), a person covered by subsection (2) may also use, make a record of or disclose information covered by subsection (3) in the course of or for the purposes of:
(a) considering cash‑related contractual chain orders, including proposed and draft orders; or
(b) dealing with interactions between this Act and such orders; or
(c) assisting the Fair Work Commission or the Fair Work Ombudsman to perform functions or duties, or exercise powers, under or in connection with the Fair Work Act 2009 that relate to cash‑related contractual chain orders.
Reserve Bank and ACCC may impose conditions on disclosed information
(6) The Reserve Bank may, by notice in writing given to a person who is to be a recipient of information disclosed by the Reserve Bank under subsection (1) or (5), impose conditions to be complied with by the recipient in relation to the disclosed information.
(7) The ACCC may, by notice in writing given to a person who is to be a recipient of information disclosed by the ACCC under subsection (1) or (5), impose conditions to be complied with by the recipient in relation to the disclosed information.
(8) An instrument under subsection (6) or (7) is not a legislative instrument.
Part 9—Compliance and enforcement
Division 1—Preliminary
180 Simplified outline of this Part
This Part applies the framework established by the Regulatory Powers Act in relation to certain compliance and enforcement matters.
Certain provisions are subject to monitoring under Part 2 of the Regulatory Powers Act.
Certain provisions are subject to investigation under Part 3 of the Regulatory Powers Act.
Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court in relation to contraventions of civil penalty provisions.
Infringement notices may be given under Part 5 of the Regulatory Powers Act for alleged contraventions of certain civil penalty provisions or a provision which constitutes an offence of strict liability.
Undertakings to comply with certain provisions may be accepted and enforced under Part 6 of the Regulatory Powers Act.
Injunctions under Part 7 of the Regulatory Powers Act may be used to restrain a person from contravening certain provisions in this Act.
Division 2—Regulatory powers
181 Monitoring powers
Provisions subject to monitoring
(1) The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
(a) a provision of Part 6 or 7, or Division 3 or 4 of Part 8, of this Act or subsection 194(1) or 195(1) of this Act;
(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to Part 6 or 7, or Division 3 or 4 of Part 8, of this Act.
Note 1: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.
Note 2: See also section 188 of this Act for the ACCC’s monitoring powers in relation to certain other provisions of this Act.
Information subject to monitoring
(2) Information given in compliance or purported compliance with this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2):
(a) there are no related provisions; and
(b) an inspector is an authorised applicant; and
(c) an inspector is an authorised person; and
(d) a magistrate is an issuing officer; and
(e) the Reserve Bank is the relevant chief executive; and
(f) each of the following courts is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit and Family Court of Australia (Division 2);
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Additional monitoring powers
(4) For the purposes of determining:
(a) whether a provision mentioned in subsection (1) has been, or is being, complied with; or
(b) the correctness of information mentioned in subsection (2);
the additional powers mentioned in subsection (5) are taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.
(5) The additional monitoring powers are substantiating information mentioned in subsection (2).
Person assisting
(6) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Extension to external Territories
(7) Part 2 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), extends to every external Territory.
182 Investigation powers
Provisions subject to investigation
(1) The following provisions are subject to investigation under Part 3 of the Regulatory Powers Act:
(a) an offence provision, or a civil penalty provision, of Part 6 or 7, or Division 3 or 4 of Part 8, of this Act, or subsection 194(1) or 195(1) of this Act;
(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to Part 6 or 7, or Division 3 or 4 of Part 8, of this Act.
Note 1: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Note 2: See also section 188 of this Act for the ACCC’s investigation powers in relation to certain other provisions of this Act.
Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) there are no related provisions; and
(b) an inspector is an authorised applicant; and
(c) an inspector is an authorised person; and
(d) a magistrate is an issuing officer; and
(e) the Reserve Bank is the relevant chief executive; and
(f) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit and Family Court of Australia (Division 2);
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Extension to external Territories
(4) Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
183 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act:
(a) the Reserve Bank is an authorised applicant in relation to each civil penalty provision of Part 6 or 7, Division 3 or 4 of Part 8, or subsection 194(1) or 195(1), of this Act; and
(b) the ACCC is an authorised applicant in relation to each other civil penalty provision of this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.
Liability of Crown
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not make the Crown liable to a pecuniary penalty.
184 Infringement notices
Provisions subject to an infringement notice
(1) A provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act if:
(a) it is:
(i) a civil penalty provision; or
(ii) a provision contravention of which constitutes an offence of strict liability; and
(b) it is not a provision of Part 6 (other than Division 3 of that Part) or Part 7 or Division 4 of Part 8.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act:
(a) the Reserve Bank is an infringement officer in relation to each civil penalty provision of Division 3 of Part 6 of this Act; and
(b) the ACCC is an infringement officer in relation to each other provision of this Act covered by subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive is:
(a) in relation to provisions mentioned in paragraph (2)(a)—the Reserve Bank; and
(b) in relation to provisions mentioned in paragraph (2)(b)—the ACCC.
Time limit for giving an infringement notice
(4) Despite subsection 103(2) of the Regulatory Powers Act, an infringement notice must be given under that subsection within 2 years (not 12 months) of the alleged contravention of a provision mentioned in subsection (1) of this section.
Single infringement notice may deal with more than one contravention
(5) Despite subsection 103(3) of the Regulatory Powers Act, a single infringement notice may be given to a person in respect of:
(a) 2 or more alleged contraventions of a provision mentioned in subsection (1) of this section; or
(b) alleged contraventions of 2 or more provisions mentioned in subsection (1) of this section.
However, the notice must not require the person to pay more than one amount in respect of the same conduct.
Amount payable under an infringement notice
(6) Despite subsections 104(2) and (3) of the Regulatory Powers Act, the amount to be stated in an infringement notice given to a person for the purposes of paragraph 104(1)(f) of that Act in relation to a provision mentioned in subsection (1) of this section is the lesser of:
(a) the amount equal to:
(i) if the notice relates to only one alleged contravention of the provision by the person—one‑fifth of the maximum penalty that a court could impose on the person for that contravention; or
(ii) if the notice relates to more than one alleged contravention of the provision by the person—one‑fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention; and
(b) 12 penalty units if the person is an individual, or 600 penalty units if the person is a body corporate.
Extension to external Territories
(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
Liability of Crown
(8) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), does not make the Crown liable to be given an infringement notice.
185 Enforceable undertakings
Enforceable provisions
(1) Each civil penalty provision of this Act is enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act:
(a) the Reserve Bank is an authorised person in relation to each civil penalty provision of Part 6 or 7, Division 3 or 4 of Part 8, or subsection 194(1) or 195(1) of this Act; and
(b) the ACCC is an authorised person in relation to each other civil penalty provision of this Act.
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Enforceable undertaking may be published
(4) The Reserve Bank may publish an undertaking accepted by the Reserve Bank on the Reserve Bank’s website.
(5) The ACCC may publish an undertaking accepted by the ACCC on the ACCC’s website.
Extension to external Territories
(6) Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned subsection (1), extends to every external Territory.
186 Injunctions
Enforceable provisions
(1) The following provisions of this Act are enforceable under Part 7 of the Regulatory Powers Act:
(a) each civil penalty provision;
(b) subsections 88(3), 115(1), 138(1), 139(1), 140(1), 141(3) and 142(5);
(c) sections 147 and 156.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act:
(a) the Reserve Bank is an authorised person in relation to:
(i) the civil penalty provisions of Part 6 or 7, Division 3 or 4 of Part 8, or subsection 194(1) or 195(1) of this Act; and
(ii) the provisions mentioned in paragraphs (1)(b) and (c) of this section; and
(b) the ACCC is an authorised person in relation to every other civil penalty provision of this Act.
Relevant court
(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(4) Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
Division 3—Other matters
187 Appointment of inspector
(1) The Reserve Bank may, in writing, appoint any of the following persons as an inspector for the purposes of this Part:
(a) a person appointed by the Reserve Bank under section 67 of the Reserve Bank Act 1959;
(b) a person engaged by the Reserve Bank under section 68 of that Act.
(2) The Reserve Bank must not appoint a person as an inspector unless the Reserve Bank is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.
(3) An inspector must, in exercising powers as such, comply with any directions of the Reserve Bank.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
188 ACCC monitoring, investigating and enforcing compliance
The functions and powers of the ACCC include monitoring, investigating and enforcing compliance with Parts 3, 4 and 5, the record‑keeping rules and section 166, and subsections 194(2) and 195(2).
Note: The ACCC has powers under section 155 of the Competition and Consumer Act 2010 that can be used to monitor and investigate in relation to the cash distribution framework.
Part 10—Miscellaneous
Division 1—Preliminary
189 Simplified outline of this Part
This Part deals with miscellaneous matters, including the following:
(a) the decisions made under this Act that are reviewable and the process by which the decision may be reconsidered;
(b) civil penalties applicable for a person providing false or misleading information or documents;
(ba) interactions with cash‑related contractual chain orders under the Fair Work Act 2009, to enable those orders to take precedence over competing obligations under this Act where appropriate;
(c) delegation and approved forms;
(d) the making of rules by the Minister.
Division 2—Review of decisions
190 Reviewable decisions and decision‑maker
(1) Each of the following is a reviewable decision:
(a) a decision to give a direction under subsection 66(1);
(b) a decision to grant, or to refuse to grant, an exemption under subsection 68(1);
(c) a decision to give a direction under subsection 82(1);
(d) a decision, under subsection 84(1), to vary or revoke a direction given under subsection 82(1).
(2) The decision‑maker for a reviewable decision is:
(a) for a reviewable decision mentioned in paragraph (1)(a) or (b)—the ACCC; or
(b) for a reviewable decision mentioned in paragraph (1)(c) or (d)—the Reserve Bank.
191 Internal review of decisions
(1) If a reviewable decision is made by a delegate of the decision‑maker for the reviewable decision, a person (the affected person) whose interests are affected by the decision may apply in writing to the decision‑maker for review (an internal review) of the decision.
(2) An application for an internal review must be made within 28 days after the day on which the decision first came to the notice of the applicant.
192 Reconsideration by decision‑maker
(1) Within 90 days after receiving an application under section 191 for internal review, the decision‑maker for the reviewable decision must:
(a) review the decision; and
(b) affirm, vary or revoke the decision; and
(c) if the decision‑maker revokes the decision—make such other decision (if any) that the decision‑maker thinks appropriate.
(2) The decision‑maker for the reviewable decision must, as soon as practicable after making a decision under subsection (1), give the applicant a written statement of the decision‑maker’s reasons for the decision.
(3) If the decision‑maker’s functions under this section are performed by a delegate of the decision‑maker for the reviewable decision, the delegate who makes the decision under subsection (1):
(a) must not have been involved in making the original reviewable decision; and
(b) must hold a position or perform duties of a higher level than the delegate who made the original reviewable decision.
193 Administrative Review Tribunal review of decisions
(1) An application may be made to the Administrative Review Tribunal for review of the following decisions:
(a) a reviewable decision that is made by the ACCC itself (not by a delegate);
(b) a reviewable decision that is made by the Reserve Bank itself (not by a delegate);
(c) an internal review decision made by the decision‑maker for the reviewable decision under subsection 192(1).
(2) Subsection 12(2) of the Administrative Review Tribunal Act 2024 does not apply to a decision covered by paragraph (1)(a) of this section.
Division 3—Civil penalties for false or misleading information or documents
194 False or misleading information
(1) A person is liable to a civil penalty if:
(a) the person gives information in compliance or purported compliance with a provision of Part 6 or 7 or Division 3 or 4 of Part 8; and
(b) the person does so knowing that the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is misleading.
Note: Parts 6 and 7 are about crisis readiness and crisis resolution. Divisions 3 and 4 of Part 8 are about powers of the Reserve Bank relating to information, and assisting the Reserve Bank and certain persons.
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.
(2) A person is liable to a civil penalty if:
(a) the person gives information in compliance or purported compliance with a provision of this Act, other than a provision of Part 6 or 7 or Division 3 or 4 of Part 8; and
(b) the person does so knowing that the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is misleading.
Note: Parts 6 and 7 are about crisis readiness and crisis resolution. Divisions 3 and 4 of Part 8 are about powers of the Reserve Bank relating to information, and assisting the Reserve Bank and certain persons.
Civil penalty: 1,000 penalty units.
(3) Subsection (1) or (2) does not apply as a result of subparagraph (1)(b)(i) or (2)(b)(i) if the information is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
(4) Subsection (1) or (2) does not apply as a result of subparagraph (1)(b)(ii) or (2)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
195 False or misleading documents
(1) A person is liable to a civil penalty if:
(a) the person produces a document to another person; and
(b) the person does so knowing that the document is false or misleading; and
(c) the document is produced in compliance or purported compliance with a provision of Part 6 or 7 or Division 3 or 4 of Part 8.
Note: Parts 6 and 7 are about crisis readiness and crisis resolution. Divisions 3 and 4 of Part 8 are about powers of the Reserve Bank relating to information, and assisting the Reserve Bank and certain persons.
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.
(2) A person is liable to a civil penalty if:
(a) the person produces a document to another person; and
(b) the person does so knowing that the document is false or misleading; and
(c) the document is produced in compliance or purported compliance with a provision of this Act, other than a provision of Part 6 or 7 or Division 3 or 4 of Part 8.
Note: Parts 6 and 7 are about crisis readiness and crisis resolution. Divisions 3 and 4 of Part 8 are about powers of the Reserve Bank relating to information, and assisting the Reserve Bank and certain persons.
Civil penalty: 1,000 penalty units.
(3) Subsection (1) or (2) does not apply if the document is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
(4) Subsection (1) or (2) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:
(a) stating that the document is, to the knowledge of the first‑mentioned person, false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first‑mentioned person, false or misleading.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see section 96 of the Regulatory Powers Act).
Division 3A—Interactions with contractual chain orders under the Fair Work Act 2009
195A Interactions with cash‑related contractual chain orders
Notifying the ACCC of interaction with cash‑related contractual chain order
(1) If:
(a) a cash‑related contractual chain order applies (within the meaning in section 536NR of the Fair Work Act 2009) to a designated entity, or will apply to a designated entity when the order comes into operation; and
(b) the designated entity has an obligation (the competing obligation) under any of the following civil penalty provisions of this Act:
(i) subsection 28(1) or (2) (which relate to entering into agreements on approved standard terms);
(ii) subsection 55(1) or (2) (which relate to entering into agreements in accordance with an arbitration determination);
(iii) subsection 67(1) (which relates to failing to comply with a service‑level standard);
(iv) subsection 67(3) (which relates to failing to comply with an ACCC direction to comply with a service‑level standard); and
(c) the designated entity reasonably believes that complying with the competing obligation would cause the designated entity to contravene a term of the cash‑related contractual chain order;
the designated entity must notify the ACCC, in writing, within a reasonable time after forming the belief.
(2) The notice must specify:
(a) the details of the relevant competing obligation and term of the cash‑related contractual chain order; and
(b) the reasons why compliance with the competing obligation would cause a contravention of the term of the order, and the conduct the designated entity considers it would not otherwise be able to engage in as a result; and
(c) the extent to which the designated entity intends not to comply with the competing obligation to prevent the contravention.
Exception to complying with competing obligation in certain circumstances
(3) If:
(a) a cash‑related contractual chain order applies (within the meaning in section 536NR of the Fair Work Act 2009) to a designated entity; and
(b) the designated entity has a competing obligation referred to in paragraph (1)(b); and
(c) complying with the competing obligation would cause the designated entity to contravene a term of the cash‑related contractual chain order; and
(d) the designated entity has given the ACCC a notice relating to the competing obligation and the cash‑related contractual chain order in accordance with subsections (1) and (2);
the competing obligation does not apply to the designated entity, but only to the extent necessary to prevent the contravention of the cash‑related contractual chain order.
Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).
Division 4—Other matters
196 Delegation—ACCC
(1) The ACCC may, in writing, delegate any or all of the ACCC’s functions or powers under this Act, the rules, the record‑keeping rules or any other legislative instrument made under this Act to:
(a) a member of the Commission (within the meaning of the Competition and Consumer Act 2010); or
(b) a member of the staff of the ACCC who is an SES employee or an acting SES employee.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) The functions or powers that may be delegated under subsection (1) include functions or powers the ACCC has as a relevant chief executive, an authorised applicant, an authorised person or an infringement officer for the purposes of a provision of the Regulatory Powers Act because of this Act.
(3) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the ACCC.
197 Delegation—Reserve Bank
(1) The Reserve Bank may, in writing, delegate all or any of its functions or powers under this Act, the rules, the notification rules or any other legislative instrument made under this Act to:
(a) the Governor of the Reserve Bank; or
(b) the Deputy Governor of the Reserve Bank; or
(c) an Assistant Governor of the Reserve Bank; or
(d) a Department Head of the Reserve Bank.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) The functions or powers that may be delegated under subsection (1) include functions or powers the Reserve Bank has as a relevant chief executive, an authorised applicant, an authorised person or an infringement officer for the purposes of a provision of the Regulatory Powers Act because of this Act.
(3) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Reserve Bank.
198 Protection from civil action
(1) This section applies to the following:
(a) a member of the Commission (within the meaning of the Competition and Consumer Act 2010);
(b) an associate member of the ACCC;
(c) a member of the staff of the ACCC.
(2) A person mentioned in subsection (1) is not liable to an action or other proceeding for damages for, or in relation to, an act done or omitted to be done in good faith by the person:
(a) in the performance, or purported performance, of any functions under this Act; or
(b) in the exercise, or purported exercise, of any powers under this Act.
Note: For protection from liability in relation to the Reserve Bank, see section 84A of the Reserve Bank Act 1959.
(3) A reference in this section to this Act includes a reference to:
(a) an instrument made under this Act; and
(b) the Regulatory Powers Act as it applies in relation to this Act.
199 Approved forms
(1) The Reserve Bank may, by notifiable instrument, approve a form for the purposes of a provision of this Act or the rules that refers to a thing being done in the approved form.
(2) If the Reserve Bank does so, the form is the approved form for the purposes of that provision.
200 Compensation for acquisition of property
(1) If:
(a) apart from this section, the operation of this Act would result in an acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the person who acquires the property is liable to pay a reasonable amount of compensation to the person from whom the property is acquired in respect of the acquisition.
(2) If the 2 people do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in the Federal Court for the recovery of such reasonable amount of compensation as the court determines from the other person.
(3) A function or power under this Act cannot be performed or exercised in such a way as to deprive a person of any compensation payable because of the operation of this section.
(4) Subsection (3) applies despite any other provision of this Act.
(5) Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that:
(a) is commenced under this section; and
(b) arises out of the same event or transaction.
(6) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
201 No giving of preference
A power conferred by this Act must not be exercised in such a way as to give preference to one State or any part thereof within the meaning of section 99 of the Constitution.
202 Physical elements of offences
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
203 Contravening an offence provision or a civil penalty provision
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
(2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
204 Revocation or variation of instruments
A provision of this Act that expressly authorises the revocation or variation of an instrument does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to other instruments under this Act.
205 Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;