Financial Sector Reform (New South Wales) Act 1999
In ForceNSW
Jurisdiction
New South Wales
Act Number
1 of 1999
Collection
act
Plain English Summary
7/10 complexity
This Act shifts supervision of building societies, credit unions and friendly societies into the Commonwealth framework by treating transferring institutions as companies under Corporations Law and by giving APRA and ASIC the powers and enforcement roles formerly exercised under NSW Codes. It also provides legal mechanics for transferring assets, liabilities, staff and ongoing proceedings, and dissolves the NSW supervisory bodies.
Who pays and who decides: affected institutions and their members have legal status and asset allocation changed; the Minister, APRA and ASIC gain decision-making and implementation roles.
This Act implements a state-level framework for transitioning New South Wales building societies, credit unions and friendly societies from state Codes and supervisory authorities to federal regimes and agencies, and for winding up two state regulatory bodies. Mechanically, the Act does the following.
Transfers registration status of covered entities so that, on the transfer date, each "transferring financial institution" is taken to be registered as a company under the Corporations Law, without creating a new legal entity (s 5(1)-(3)). The Act relies on the transfer date defined by the Commonwealth Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (FSR Act), see the definitions and the defined term transfer date.
Confers functions and powers on the Australian Prudential Regulation Authority and the Australian Securities and Investments Commission, giving each organisation the powers expressed to be conferred by or under the Act and the capacity to act in New South Wales in relation to corresponding laws of other jurisdictions (ss 6-7, 44).
Facilitates transfers of business for authorised deposit‑taking institutions and life insurers under the Commonwealth Financial Sector (Transfers of Business) Act 1999 (FS(TB) Act), treating receiving bodies as legal successors for assets, liabilities and rights to the extent of a transfer and providing mechanisms for certificates and prescribed statements to evidence transfers (ss 8-16, 10-11, 12-15).
Provides for the dissolution of the New South Wales Financial Institutions Commission (FINCOM) and vesting or transfer of its funds and assets, including specific distributions from the Supervision Fund and the Credit Unions Contingency Fund (ss 17, 28-31).
Preserves and applies, as necessary, selected offence and administrative provisions of the former AFIC Code, the Financial Institutions Code and the Friendly Societies Code in relation to conduct before the transfer date, and confers on APRA and ASIC enforcement powers equivalent to those previously exercised by AFIC or FINCOM (ss 39-43).
Current sections
Direct links to the current provisions in Financial Sector Reform (New South Wales) Act 1999.
APRA employee means a person appointed under section 45 of the APRA Act.
ASIC means the Australian Securities and Investments Commission.
authorised APRA officer, in a provision of Part 4, means a person authorised under section 9 to perform or exercise the functions or powers of an authorised APRA officer under that provision.
employee, in relation to AFIC or FINCOM, includes a person engaged by AFIC or FINCOM on a contract for services.
enforcement power means a function or power relating to:
(a) the investigation of an offence, or
(b) the institution and carrying on of a prosecution for an offence, or
(c) matters relating to an investigation or prosecution of an offence.
Financial Institutions Code means the Financial Institutions (NSW) Code.
financial institutions legislation has the same meaning as in the AFIC Code.
Financial Institutions (NSW) Code means the provisions applying before the transfer date because of section 8 of the Financial Institutions (New South Wales) Act 1992, and includes the Financial Institutions (NSW) Regulations.
FINCOM means the New South Wales Financial Institutions Commission.
FINCOM employee means a member of the staff of FINCOM employed under section 18 of the Financial Institutions Commission Act 1992, and includes the Chief Executive of FINCOM.
fiscal bodies legislation has the same meaning as in section 3 of the AFIC Code.
Friendly Societies Code means the Friendly Societies (NSW) Code.
Friendly Societies (NSW) Code means the provisions applying before the transfer date because of section 5 of the Friendly Societies (New South Wales) Act 1997, and includes the Friendly Societies (NSW) Regulations.
transfer date means the date that, under section 3 (16) of the FSR Act, is specified as the transfer date for the purposes of that Act.
4
Act to bind Crown
4 Act to bind Crown
4 Act to bind Crown
(1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
(2) Nothing in this section makes the Crown in any of its capacities liable to be prosecuted for an offence.
Part 2
Registration of certain entities as companies
Part 2 Registration of certain entities as companies
Part 2 Registration of certain entities as companies
5
Transferring financial institutions
5 Transferring financial institutions
5 Transferring financial institutions
(1) On the transfer date, each transferring financial institution of this jurisdiction is taken, in accordance with Schedule 4 to the Corporations Law of New South Wales, to become registered as a company under that Law under the name under which the institution was registered under the previous governing Code immediately before the transfer date.
(2) Subsection (1) applies even if the institution is an externally-administered body corporate immediately before the transfer date.
(3) Registration under the Corporations Law of New South Wales of a transferring financial institution of this jurisdiction as a company does not create a new legal entity.
(4) In this section, previous governing Code and transferring financial institution of this jurisdiction have the same respective meanings as they have in Schedule 4 to the Corporations Law.
Part 3
Conferral of functions and powers on APRA and ASIC
Part 3 Conferral of functions and powers on APRA and ASIC
Part 3 Conferral of functions and powers on APRA and ASIC
6
Conferral of functions and powers on APRA
6 Conferral of functions and powers on APRA
6 Conferral of functions and powers on APRA
(1) APRA has the functions and powers conferred or expressed to be conferred on it by or under this Act.
(2) APRA has power to do acts in New South Wales in the performance or exercise of any function or power conferred or expressed to be conferred on APRA by or under a law of another jurisdiction corresponding to this Act.
(3) Without limiting the operation of section 31 of the Interpretation Act 1987, this section does not purport to impose a duty on APRA to perform any function or exercise any power conferred or expressed to be conferred on it by or under this Act if the imposition of the duty would be beyond the legislative power of the Parliament of the State.
s 6: Am 2001 No 34, Sch 6.3 [1].
7
Conferral of functions and powers on ASIC
7 Conferral of functions and powers on ASIC
7 Conferral of functions and powers on ASIC
(1) ASIC has the functions and powers conferred or expressed to be conferred on it by or under this Act.
(2) ASIC has power to do acts in New South Wales in the performance or exercise of any function or power conferred or expressed to be conferred on ASIC by or under a law of another jurisdiction corresponding to this Act.
(3) Without limiting the operation of section 31 of the Interpretation Act 1987, this section does not purport to impose a duty on ASIC to perform any function or exercise any power conferred or expressed to be conferred on it by or under this Act if the imposition of the duty would be beyond the legislative power of the Parliament of the State.
s 7: Am 2001 No 34, Sch 6.3 [2].
Part 4
Authorised deposit-taking institutions and life insurance companies: transfer of business
Part 4 Authorised deposit-taking institutions and life insurance companies: transfer of business
Part 4 Authorised deposit-taking institutions and life insurance companies: transfer of business
8
Words defined in FS(TB) Act
8 Words defined in FS(TB) Act
8 Words defined in FS(TB) Act
Unless the contrary intention appears, words defined in the FS(TB) Act have the same respective meanings in this Part.
9
Authorised APRA officer
9 Authorised APRA officer
9 Authorised APRA officer
(1) APRA may, in writing, authorise a person who is an APRA board member, or an APRA staff member, to perform or exercise the functions or powers of an authorised APRA officer under a particular provision of this Part.
(2) The functions and powers necessary for the purposes of this section are conferred on APRA.
10
Voluntary transfers
10 Voluntary transfers
10 Voluntary transfers
(1) The purpose of this section is to facilitate voluntary transfers of business under Part 3 of the FS(TB) Act for regulated bodies.
(2) This section applies when a certificate of transfer issued under section 18 of the FS(TB) Act comes into force under Division 3 of Part 3 of that Act.
(3) The receiving body is taken to be the successor in law to the transferring body, to the extent of the transfer.
(4) In particular:
(a) if the transfer is a total transfer, all the assets and liabilities of the transferring body become respectively the assets and liabilities of the receiving body without any transfer, conveyance or assignment, and
(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body included in the list of assets and liabilities specified in the statement of detail become respectively assets and liabilities of the receiving 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 transferring body apply to the receiving body.
(5) If there is an approved section 20 statement in relation to the transfer that specifies:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with the statement, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
11
Compulsory transfers
11 Compulsory transfers
11 Compulsory transfers
(1) The purpose of this section is to facilitate compulsory transfers of business under Part 4 of the FS(TB) Act for regulated bodies.
(2) This section applies when a certificate of transfer issued under section 33 of the FS(TB) Act comes into force under Division 3 of Part 4 of that Act.
(3) The receiving body is taken to be the successor in law to the transferring body, to the extent of the transfer.
(4) In particular:
(a) if the transfer is a total transfer, all the assets and liabilities of the transferring body become respectively the assets and liabilities of the receiving body without any transfer, conveyance or assignment, and
(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body included in the list, referred to in section 33 (2) (c) of the FS(TB) Act, included in, or attached to, the certificate of transfer become respectively assets and liabilities of the receiving 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 transferring body apply to the receiving body.
(5) If the certificate of transfer includes provisions of a kind referred to in section 33 (3) of the FS(TB) Act specifying:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with those provisions, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
(6) If there is an approved section 30 statement in relation to the transfer that specifies:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with the statement, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
12
Certificates evidencing operation of Part
12 Certificates evidencing operation of Part
12 Certificates evidencing operation of Part
(1) An authorised APRA officer may, by a certificate in writing signed by the officer, certify any matter in relation to the operation or effect of this Part, and, in particular, may certify that:
(a) a particular asset of a transferring body has become a transferred asset of a receiving body, or
(b) a particular liability of a transferring body has become a transferred liability of a receiving body.
(2) For all purposes and in all proceedings, a certificate under subsection (1) is evidence of the matters certified.
13
Certificates in relation to land and interests in land
13 Certificates in relation to land and interests in land
13 Certificates in relation to land and interests in land
If:
(a) a receiving body becomes, under this Part, the owner of land, or of an interest in land, that is situated in New South Wales, and
(b) there is lodged with the Registrar-General a certificate that:
(i) is signed by an authorised APRA officer, and
(ii) identifies the land or interest, and
(iii) states that the receiving body has, under this Part, become the owner of that land or interest,
the Registrar-General may:
(c) register or record the matter in the same manner as dealings in land or interests in land of that kind are registered or recorded, and
(d) deal with, and give effect to, the certificate.
14
Certificates in relation to other assets
14 Certificates in relation to other assets
14 Certificates in relation to other assets
(1) If:
(a) an asset (other than land or an interest in land) becomes, under this Part, an asset of a receiving body, and
(b) there is lodged with the person or authority who has, under the law, responsibility for keeping a register or record in respect of assets of that kind a certificate that:
(i) is signed by an authorised APRA officer, and
(ii) identifies the asset, and
(iii) states that the asset has, under this Part, become an asset of the receiving body,
that person or authority may:
(c) register or record the matter in the same manner as transactions in relation to assets of that kind are registered or recorded, and
(d) deal with, and give effect to, the certificate.
(2) This section does not affect the operation of the Corporations Law.
15
Documents purporting to be certificates
15 Documents purporting to be certificates
15 Documents purporting to be certificates
A document purporting to be a certificate given under this Part is, unless the contrary is established, taken to be such a certificate and to have been properly given.
16
Relationship of Part with other instruments
16 Relationship of Part with other instruments
16 Relationship of Part with other instruments
(1) This Part has effect despite anything in a contract, deed, undertaking, agreement or other instrument.
(2) Nothing done under this Part:
(a) places a receiving body, a transferring body or another person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong, or
(b) places a receiving body, a transferring body or another person in breach of:
(i) a law of the State, or
(ii) a contractual provision prohibiting, restricting or regulating the assignment or transfer of an asset or liability or the disclosure of information, or
(c) releases a surety, wholly or in part, from all or any of the surety’s obligations.
(3) Without limiting subsection (1), if, apart from this section, the advice or consent of a person would be necessary in a particular respect, the advice is taken to have been obtained or the consent is taken to have been given.
(2) While AFIC continues in existence under the Financial Sector Reform (Queensland) Act 1999 of Queensland, AFIC has power:
(a) to do any act in New South Wales that AFIC considers necessary or expedient to do for any of the purposes for which it continues in existence, and
(b) to do any act in respect of a society that is or was registered under the Financial Institutions Code or the Friendly Societies Code that AFIC considers necessary or expedient to do for any of the purposes for which it continues in existence, and
(c) to do any act that it is authorised to do by or under this Act.
19
Delegation of AFIC’s powers
19 Delegation of AFIC’s powers
19 Delegation of AFIC’s powers
(1) AFIC’s board may delegate any of AFIC’s powers under section 18 to an appropriately qualified employee of AFIC.
(2) In subsection (1), appropriately qualified has the same meaning as in the Financial Sector Reform (Queensland) Act 1999 of Queensland.
pt.5-div.2-sdiv.2
Provisions about AFIC’s staff
pt.5-div.2-sdiv.2 Provisions about AFIC’s staff
Subdivision 2 Provisions about AFIC’s staff
20
Definition
20 Definition
20 Definition
In this Subdivision:
employees of AFIC includes the executive director of AFIC.
21
Transfer of staff to APRA under transfer agreement
21 Transfer of staff to APRA under transfer agreement
21 Transfer of staff to APRA under transfer agreement
(1) The Queensland Minister administering the Financial Sector Reform (Queensland) Act 1999 of Queensland may enter into a transfer agreement under Division 2 of Part 1 of Schedule 8 to the FSR Act, that determines, or provides for determining, that particular employees of AFIC become APRA employees on a particular date, not being a date before the transfer date.
(2) The transfer agreement has effect according to its terms.
22
Effect of transfer to APRA or Australian Public Service
22 Effect of transfer to APRA or Australian Public Service
22 Effect of transfer to APRA or Australian Public Service
(1) This section applies if a person becomes an APRA employee under section 21.
(2) This section also applies if:
(a) a person is appointed to the Australian Public Service under section 81B (1) of the Public Service Act 1922 of the Commonwealth on or after the transfer date, and
(b) immediately before the appointment, the person was an employee of AFIC.
(3) If the person is the executive director of AFIC, the executive director’s appointment under the AFIC Code immediately ends.
(4) If the person is another employee of AFIC, the employee’s employment with AFIC immediately ends.
(5) A person is not entitled to receive any payment or other benefit, whether under a contract or otherwise, because the person’s appointment or employment ends under this section.
23
Statement of accrued benefits and other details
23 Statement of accrued benefits and other details
23 Statement of accrued benefits and other details
(1) Before an employee of AFIC becomes an APRA employee under section 21 or is appointed to the Australian Public Service as mentioned in section 22 (2), AFIC must give the person, and APRA or the Commonwealth Public Service Commissioner, a written statement.
(2) The statement must state particulars of the benefits to which the person has an accrued entitlement, the person’s remuneration and the person’s length of service with AFIC.
pt.5-div.2-sdiv.3
Information may be given to APRA or ASIC
pt.5-div.2-sdiv.3 Information may be given to APRA or ASIC
Subdivision 3 Information may be given to APRA or ASIC
24
Giving of information
24 Giving of information
24 Giving of information
(1) This section applies to:
(a) a director of AFIC’s board, and
(b) an employee of AFIC, and
(c) a person appointed by AFIC to carry out duties under the fiscal bodies legislation, and
(d) a person who has been a person mentioned in paragraph (a), (b) or (c).
(2) A person to whom this section applies may disclose to APRA or ASIC information the person acquired while engaged in the administration of the fiscal bodies legislation.
(3) This section applies despite section 155 of the AFIC Code and section 477 of the Friendly Societies Code.
pt.5-div.2-sdiv.4
Transfer of AFIC’s assets and liabilities
pt.5-div.2-sdiv.4 Transfer of AFIC’s assets and liabilities
Subdivision 4 Transfer of AFIC’s assets and liabilities
25
Transfer of assets and liabilities
25 Transfer of assets and liabilities
25 Transfer of assets and liabilities
(1) The Queensland Minister administering the Financial Sector Reform (Queensland) Act 1999 of Queensland may enter into a transfer agreement under Division 3 of Part 1 of Schedule 8 to the FSR Act connected with the transfer of AFIC’s assets or liabilities to APRA or ASIC.
(2) The transfer agreement has effect according to its terms.
pt.5-div.2-sdiv.5
Proceedings involving AFIC
pt.5-div.2-sdiv.5 Proceedings involving AFIC
Subdivision 5 Proceedings involving AFIC
26
Continuation and preservation of certain civil proceedings involving AFIC
26 Continuation and preservation of certain civil proceedings involving AFIC
26 Continuation and preservation of certain civil proceedings involving AFIC
(1) This section applies to a proceeding:
(a) whether or not it arose or arises under the fiscal bodies legislation, and
(b) regardless of where it arose or arises.
(2) For the purposes of a proceeding commenced before the transfer date to which AFIC was a party immediately before that date, the State of Queensland is substituted for AFIC as a party to the proceeding.
(3) For the purposes of a proceeding not commenced before the transfer date and which could if commenced after that date be brought against AFIC, or but for the commencement of section 17 (1) and the dissolution of AFIC, could have been brought against AFIC, the proceeding may instead be brought against the State of Queensland.
(4) For the purposes of this section, evidence that would have been admissible for or against AFIC is admissible for or against the State of Queensland.
(5) This section does not apply to a proceeding for an offence.
27
Continuation of certain offence proceedings
27 Continuation of certain offence proceedings
27 Continuation of certain offence proceedings
(1) This section applies to a proceeding for an offence brought under section 63 of the AFIC Code by AFIC, or a person authorised in writing by AFIC, that commenced before the transfer date but that was not completed before that date.
(2) On and after the transfer date, the proceeding may continue to be prosecuted by either APRA or ASIC in place of AFIC or the person authorised by AFIC; and APRA or ASIC may be substituted in the proceeding for AFIC or the person.
(3) The functions and powers necessary for this section are conferred on APRA and ASIC.
Division 3
Provisions relating to FINCOM
Division 3 Provisions relating to FINCOM
Division 3 Provisions relating to FINCOM
pt.5-div.3-sdiv.1
Dissolution of FINCOM
pt.5-div.3-sdiv.1 Dissolution of FINCOM
Subdivision 1 Dissolution of FINCOM
28
Dissolution of FINCOM
28 Dissolution of FINCOM
28 Dissolution of FINCOM
(1) FINCOM and its Board are dissolved.
(2) The members of the Board of FINCOM cease to hold office, and are not entitled to any compensation for loss of office.
pt.5-div.3-sdiv.2
General
pt.5-div.3-sdiv.2 General
Subdivision 2 General
29
Supervision Fund
29 Supervision Fund
29 Supervision Fund
(1) FINCOM must pay the money standing to the credit of the Supervision Fund established under section 94 of the Financial Institutions Code to such entities, in such amounts and at such times as the Minister determines.
(2) Before making a determination under this section, the Minister must consult such representatives of the financial institutions industry and other persons as the Minister considers appropriate.
30
Credit Unions Contingency Fund
30 Credit Unions Contingency Fund
30 Credit Unions Contingency Fund
(1) On the day before the transfer date, FINCOM must, under section 99A of the Financial Institutions Code, distribute the whole of retained earnings to the contribution accounts of credit unions.
(2) For the purposes of subsection (1), section 99A (3) of the Financial Institutions Code does not apply.
(3) On or as soon as practicable after the transfer date, FINCOM must pay to each credit union the amount standing to the credit union’s credit in the Credit Unions Contingency Fund immediately before the transfer date, subject to any necessary adjustments.
(4) Subsection (3) applies despite section 103 of the Financial Institutions Code.
(5) In this section:
contribution accounts of credit unions means the parts of the Credit Unions Contingency Fund that, under section 98 (10) of the Financial Institutions Code, are treated as a deferred asset in the accounts of the credit unions.
credit union means a credit union under the Financial Institutions Code.
retained earnings has the same meaning as in section 99A of the Financial Institutions Code.
31
Transitional arrangements regarding final report and audit of FINCOM
31 Transitional arrangements regarding final report and audit of FINCOM
31 Transitional arrangements regarding final report and audit of FINCOM
(1) The purpose of this section is to make provision for reports, financial statements and auditing concerning FINCOM’s affairs in relation to the period beginning with the transfer date and ending with the date on which FINCOM is dissolved.
(2) The regulations may make provision for or with respect to the preparation and submission of a report of FINCOM’s operations, the preparation and submission of financial statements relating to FINCOM, and the auditing of those statements and of the accounts to which they relate.
Transfer of staff to APRA under transfer agreement
32 Transfer of staff to APRA under transfer agreement
32 Transfer of staff to APRA under transfer agreement
(1) The Minister may enter into a transfer agreement under Division 2 of Part 1 of Schedule 8 to the FSR Act that determines, or provides for determining, that particular FINCOM employees become APRA employees on a particular date.
(2) The transfer agreement has effect according to its terms.
33
Effect of transfer to APRA or Australian Public Service
33 Effect of transfer to APRA or Australian Public Service
33 Effect of transfer to APRA or Australian Public Service
(1) This section applies:
(a) if a person becomes an APRA employee under section 32, or
(b) if:
(i) a person is appointed to the Australian Public Service under section 81B (1) of the Public Service Act 1922 of the Commonwealth on or after the transfer date, and
(ii) immediately before the appointment, the person was a FINCOM employee.
(2) The employee’s employment with FINCOM immediately ends.
(3) A person is not entitled to receive any payment or other benefit, whether under a contract or otherwise, because the person’s appointment or employment ends under this section.
34
Statement of accrued benefits and other details
34 Statement of accrued benefits and other details
34 Statement of accrued benefits and other details
(1) Before a FINCOM employee becomes an APRA employee under section 32 or is appointed to the Australian Public Service as mentioned in section 33 (1) (b) (i), FINCOM must give the person, and APRA or the Commonwealth Public Service Commissioner, a written statement.
(2) The statement must state particulars of:
(a) the person’s remuneration, and
(b) the person’s accrued benefits and entitlements in respect of service with FINCOM and prior service recognised by FINCOM, and
(c) the person’s length of service with FINCOM and the length of prior service recognised by FINCOM.
pt.5-div.3-sdiv.4
Information may be given to APRA or ASIC
pt.5-div.3-sdiv.4 Information may be given to APRA or ASIC
Subdivision 4 Information may be given to APRA or ASIC
35
Giving of information
35 Giving of information
35 Giving of information
(1) This section applies to:
(a) a member of the Board of FINCOM, and
(b) a FINCOM employee, and
(c) a person appointed by FINCOM for the purpose of carrying out duties under the fiscal bodies legislation, and
(d) a person who has been a person mentioned in paragraph (a), (b) or (c).
(2) A person to whom this section applies may disclose to APRA or ASIC information the person acquired while engaged in the administration of the fiscal bodies legislation.
(3) This section applies despite section 410 of the Financial Institutions Code and section 477 of the Friendly Societies Code.
pt.5-div.3-sdiv.5
Transfer of FINCOM’s assets and liabilities
pt.5-div.3-sdiv.5 Transfer of FINCOM’s assets and liabilities
Subdivision 5 Transfer of FINCOM’s assets and liabilities
36
Transfer of assets and liabilities
36 Transfer of assets and liabilities
36 Transfer of assets and liabilities
(1) The Minister may enter into transfer agreements under Division 3 of Part 1 of Schedule 8 to the FSR Act connected with the transfer of FINCOM’s assets or liabilities to APRA or ASIC.
(2) The transfer agreement has effect according to its terms.
pt.5-div.3-sdiv.6
Proceedings involving FINCOM
pt.5-div.3-sdiv.6 Proceedings involving FINCOM
Subdivision 6 Proceedings involving FINCOM
37
Continuation and preservation of civil proceedings involving FINCOM
37 Continuation and preservation of civil proceedings involving FINCOM
37 Continuation and preservation of civil proceedings involving FINCOM
(1) For the purposes of a proceeding commenced before the transfer date to which FINCOM was a party immediately before that date, the State is substituted for FINCOM as a party to the proceeding.
(2) For the purposes of a proceeding not commenced before the transfer date and which could, if commenced after that date, be brought against FINCOM, or but for the commencement of section 17 (2), could have been brought against FINCOM, the proceeding may instead be brought against the State.
(3) For the purposes of this section, evidence that would have been admissible for or against FINCOM is admissible for or against the State.
(4) This section does not apply to a proceedings for an offence.
38
Continuation of certain offence proceedings
38 Continuation of certain offence proceedings
38 Continuation of certain offence proceedings
(1) This section applies to a proceeding for an offence brought under section 404 of the Financial Institutions Code or section 471 of the Friendly Societies Code by FINCOM, or a person authorised in writing by FINCOM, that commenced before the transfer date but was not completed before that date.
(2) On and after the transfer date, the proceeding may continue to be prosecuted by either APRA or ASIC in place of FINCOM or the person authorised by FINCOM; and APRA or ASIC may be substituted in the proceeding for FINCOM or the person.
(3) The functions and powers necessary for this section are conferred on APRA and ASIC.
Division 4
APRA’s and ASIC’s functions and powers under Codes
Division 4 APRA’s and ASIC’s functions and powers under Codes
Division 4 APRA’s and ASIC’s functions and powers under Codes
39
Conferral of functions and powers relating to building societies, credit unions and friendly societies
39 Conferral of functions and powers relating to building societies, credit unions and friendly societies
39 Conferral of functions and powers relating to building societies, credit unions and friendly societies
(1) Either relevant Commonwealth body has the same enforcement powers relating to anything done or omitted to be done under a Code before the transfer date as AFIC or FINCOM had immediately before that date.
(2) For the purposes of subsection (1), a Code applies with all necessary changes.
(3) In this section:
Code means the AFIC Code, Financial Institutions Code or Friendly Societies Code.
40
AFIC Code provisions
40 AFIC Code provisions
40 AFIC Code provisions
(1) Part 8 of the AFIC Code (other than sections 50, 51, 55 and 58) and the other provisions of the Code relevant to that Part, continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 17 (1) had not commenced.
(2) Despite subsection (1), a provision, or part of a provision, applying under that subsection that creates an offence is not limited in its application to anything done or omitted to be done before the transfer date.
(3) For the purposes of the application mentioned in subsection (1):
(a) a reference in the Code to AFIC is taken to be a reference to either relevant Commonwealth body, and
(b) a reference in the Code to a financial institution is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a financial institution under the Code, and
(c) in section 52 (1) of the Code, the words “the financial institutions scheme” are taken to be omitted and the words “investigating whether an offence against the fiscal bodies legislation has been committed” are taken to be substituted, and
(d) a reference in section 52 (1) (a) or (b) of the Code to an employee of AFIC or of a State supervisory authority is taken to be a reference to an employee of either relevant Commonwealth body, and
(e) section 52 (5) of the Code is taken to be omitted, and
(f) a reference in section 53 (1) or (2) of the Code to the executive director is taken to be a reference to either relevant Commonwealth body, and
(g) a reference in section 53 (5) of the Code to officers and employees of the State supervisory authorities is taken to be a reference to officers and employees of either relevant Commonwealth body, and
(h) section 63 (1A) and (1B) of the Code are taken to be omitted, and
(i) a reference in section 63 (2) of the Code to the Ministerial Council is taken to be a reference to the Minister administering this Act, and
(j) the Code applies with all other necessary changes.
(4) This section does not limit section 39.
41
Financial Institutions Code provisions
41 Financial Institutions Code provisions
41 Financial Institutions Code provisions
(1) Subdivision 1A of Division 2 of Part 2 (other than sections 75, 79 and 82), Part 10 and sections 392, 397, 398 and 404 of the Financial Institutions Code, and the other provisions of the Code relevant to that Subdivision, that Part and those sections, continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 17 (1) had not commenced.
(2) Despite subsection (1), a provision, or part of a provision, applying under that subsection that creates an offence is not limited in its application to anything done or omitted to be done before the transfer date.
(3) For the purposes of the application mentioned in subsection (1):
(a) a reference in the Code to the SSA is taken to be a reference to either relevant Commonwealth body, and
(b) a reference in the Code to a financial body is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a financial body under the Code, and
(c) a reference in the Code to a society is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a society under the Code, and
(d) in section 76 (1) of the Code, the words “the financial institutions legislation” are taken to be omitted and the words “investigating whether an offence against the financial institutions legislation has been committed” are taken to be substituted, and
(e) a reference in section 76 (1) (a) or (b) of the Code to an employee of the SSA is taken to be a reference to an employee of either relevant Commonwealth body, and
(f) section 76 (5) of the Code is taken to be omitted, and
(g) in the definition of financial body to which this section applies in section 397 (1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(h) section 397 (2) of the Code is taken to be omitted, and
(i) in the definition of financial body to which this section applies in section 398 (1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(j) in the definition of prescribed person in section 398 (1) of the Code, paragraphs (a) and (b) are taken to be omitted, and
(k) section 398 (2) of the Code is taken to be omitted, and
(l) a reference in section 404 (2) of the Code to the Minister is taken to be a reference to the Minister administering this Act, and
(m) the Code applies with all other necessary changes.
(4) This section does not limit section 39.
42
Financial Institutions Code provisions as applied under section 40 of AFIC Code
42 Financial Institutions Code provisions as applied under section 40 of AFIC Code
42 Financial Institutions Code provisions as applied under section 40 of AFIC Code
(1) The following provisions continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 17 (1) had not commenced:
(a) section 40 of the AFIC Code to the extent it applies the relevant provisions,
(b) the relevant provisions as applied under section 40 of the AFIC Code,
(c) the other provisions of the AFIC Code and the Financial Institutions Code relevant to section 40 of the AFIC Code and the relevant provisions.
(2) Despite subsection (1), a provision, or part of a provision, applying under that subsection that creates an offence is not limited in its application to anything done or omitted to be done before the transfer date.
(3) For the purposes of the application mentioned in subsection (1):
(a) a reference in section 40 of the AFIC Code or in section 5 of the AFIC Regulations to a special services provider is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a special services provider under that Code, and
(b) a reference in section 40 of the AFIC Code or in section 5 of the AFIC Regulations to AFIC is taken to be a reference to either relevant Commonwealth body, and
(c) in section 76 (1) of the Financial Institutions Code, the words “the financial institutions legislation” are taken to be omitted and the words “investigating whether an offence against the financial institutions legislation has been committed” are taken to be substituted, and
(d) section 76 (5) of the Financial Institutions Code is taken to be omitted, and
(e) in the definition of financial body to which this section applies in section 397 (1) of the Financial Institutions Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(f) section 397 (2) of the Financial Institutions Code is taken to be omitted, and
(g) in the definition of financial body to which this section applies in section 398 (1) of the Financial Institutions Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(h) in the definition of prescribed person in section 398 (1) of the Financial Institutions Code, paragraphs (a) and (b) are taken to be omitted, and
(i) section 398 (2) of the Financial Institutions Code is taken to be omitted, and
(j) a reference in section 404 (2) of the Financial Institutions Code to the Minister is taken to be a reference to the Minister administering this Act, and
(k) the AFIC Code and the Financial Institutions Code apply with all other necessary changes.
(4) This section does not limit section 39.
(5) In this section:
relevant provisions means Subdivision 1A of Division 2 of Part 2 (other than sections 75, 79 and 82), Part 10 and sections 392, 397, 398 and 404 of the Financial Institutions Code.
43
Friendly Societies Code provisions
43 Friendly Societies Code provisions
43 Friendly Societies Code provisions
(1) Subdivision 2 of Division 2 of Part 2 (other than sections 31, 35 and 38), Divisions 3 and 4 of Part 4A, Part 10 and sections 460, 465, 466 and 471 of the Friendly Societies Code, and the other provisions of the Code relevant to that Subdivision, those Divisions, that Part or those sections, continue to apply on and after the transfer date in relation to anything done or omitted to be done before that date as if section 17 (1) had not commenced.
(2) Despite subsection (1), a provision, or part of a provision, applying under that subsection that creates an offence is not limited in its application to anything done or omitted to be done before the transfer date.
(3) For the purposes of the application mentioned in subsection (1):
(a) a reference in the Code to the SSA is taken to be a reference to either relevant Commonwealth body, and
(b) a reference in the Code to a society is taken to be a reference to an entity that on the transfer date is a company under the Corporations Law and that, immediately before that date, was a society under the Code, and
(c) in section 32 (1) of the Code, the words “the friendly societies legislation” are taken to be omitted and the words “investigating whether an offence against the friendly societies legislation has been committed” are taken to be substituted, and
(d) a reference in section 32 (1) (a) or (b) of the Code to an employee of the SSA is taken to be a reference to an employee of either relevant Commonwealth body, and
(e) section 32 (4) of the Code is taken to be omitted, and
(f) in the definition of society to which this section applies in section 465 (1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(g) section 465 (2) of the Code is taken to be omitted, and
(h) in the definition of society to which this section applies in section 466 (1) of the Code, paragraphs (a), (b), (d), (e) and (f) are taken to be omitted, and
(i) in the definition of prescribed person in section 466 (1) of the Code, paragraphs (a) and (b) are taken to be omitted, and
(j) section 466 (2) of the Code is taken to be omitted, and
(k) a reference in section 471 (2) of the Code to the Minister is taken to be a reference to the Minister administering this Act, and
(l) the Code applies with all other necessary changes.
(4) This section does not limit section 39.
44
Conferral of functions and powers
44 Conferral of functions and powers
44 Conferral of functions and powers
The functions and powers necessary for the purposes of this Division are conferred on APRA and ASIC.
Division 5
Miscellaneous
Division 5 Miscellaneous
Division 5 Miscellaneous
45
Dormant accounts
45 Dormant accounts
45 Dormant accounts
(1) This section applies if:
(a) before the transfer date a society transferred an amount from a person’s deposit account with the society to another account under section 138A (4) (c) of the Financial Institutions Code, and
(b) immediately before the transfer date the amount had not been lawfully totally paid out as mentioned in section 138A (6) (b) of that Code.
(2) Immediately before the transfer date the amount remaining in the other account for the person is taken to have been transferred back to the person’s deposit account as if it had never been classified as a dormant account or closed under section 138A of the Financial Institutions Code.
46
Withdrawable shares in building societies
46 Withdrawable shares in building societies
46 Withdrawable shares in building societies
(1) A person who, immediately before the transfer date, was entitled to a withdrawable share of a building society, is deemed to have become immediately before that date the holder of a deposit with the building society of an amount equal to the amount paid up on the share.
(2) The holder of the deposit continues to have the same voting or other rights (if any) as the holder of the withdrawable share had.
(3) Any withdrawable shares of a building society on issue immediately before the transfer date and converted to deposit under subsection (1) are deemed to have been cancelled.
(4) This section applies subject to such standards or rules about the conversion of withdrawable shares to deposits as are determined by FINCOM.
(5) In this section:
building society means a transferring financial institution of this jurisdiction (within the meaning of Part 1 of Schedule 4 to the Corporations Law) authorised under the Financial Institutions Code to operate as a building society immediately before the transfer date.
withdrawable share means a withdrawable share within the meaning of the Financial Institutions Code.
47
Matters in relation to dissolved or deregistered societies
47 Matters in relation to dissolved or deregistered societies
47 Matters in relation to dissolved or deregistered societies
(1) This section applies if, before the transfer date, a society’s registration has been cancelled under:
(g) the provisions of any other law prescribed by the regulations.
(2) If property vested in ASIC under section 36 was held by a society whose registration has been cancelled as mentioned in subsection (1) and was so held on trust, ASIC may:
(a) continue to act as trustee, or
(b) apply to a court for the appointment of a new trustee.
(3) If a society referred to in subsection (2) had property that it did not hold on trust, ASIC may:
(a) dispose of or deal with the property as it sees fit, and
(b) apply any money it so receives:
(i) to defray expenses incurred by ASIC in exercising its powers in relation to the society, and
(ii) to make payments authorised by subsection (4),
and must deal with the rest (if any) under Part 9.7 of the Corporations Act 2001 of the Commonwealth as applying under this section.
(3A) Money received by ASIC on a disposal of, or dealing with property of a society under subsection (3) (a) that is not applied under subsection (3) (b) is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 9.7 of the Corporations Act 2001 of the Commonwealth as if the society had been a company.
Note—
Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.
(4) The property remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in ASIC.
(5) ASIC’s obligation under subsection (4) is limited to satisfying the liabilities out of the society’s property to the extent that the property is properly available to satisfy those liabilities.
(6) ASIC must keep:
(a) a record of property that it knows is vested in it under section 36, and
(b) a record of its dealings with that property, and
(c) account of all money received from those dealings, and
(d) all accounts, vouchers, receipts and papers relating to the property and that money.
(7) ASIC may do an act on behalf of the society or the society’s liquidator if ASIC is satisfied the society or liquidator would be bound to do the act if the society still existed.
(8) A person may recover from an insurer of the society an amount that was payable to the society under the insurance contract if:
(a) the society had a liability to the person, and
(b) the insurance contract covered the liability immediately before the cancellation of the registration.
(9) ASIC may establish a society as a company if ASIC is satisfied that the society’s registration should not have been cancelled.
(10) A court may make an order that ASIC establish a society as a company if:
(a) an application for so establishing a society is made to the court:
(i) by a person aggrieved by the cancellation of the society’s registration, or
(ii) by a former liquidator of the society, and
(b) the court is satisfied that it is just that the society be so established.
(11) If the court makes an order under subsection (10), it may:
(a) validate anything done between the cancellation of the society’s registration and its establishment as a company, and
(b) make any other order it considers appropriate.
(12) ASIC must give notice of the establishment of a company in the Commonwealth of Australia Gazette and, if it exercises its power under subsection (9) in response to an application by a person, it must also give notice to the applicant.
(13) If a society is established as a company, the society is taken to have continued in existence until the transfer date and to be a transferring financial institution of this jurisdiction as referred to in Part 2.
(14) A person who was a director of a society immediately before its registration was cancelled becomes a director of the company as which it is established under this section as from the time when ASIC or a court so establishes it.
(15) Any property of the society that is still vested in ASIC revests in the company so established and, if the society held particular property subject to a security or other interest or claim, the society takes the property subject to that interest or claim.
(16) The functions and powers that are necessary for the purposes of this section are conferred on ASIC.
(17) In this section:
society means an entity that was:
(a) a society under the Financial Institutions Code or the Friendly Societies Code, or
(e) an entity of a prescribed class or description.
s 47: Am 2001 No 34, Sch 6.3 [3] [4].
48
Mergers and transfers of engagements commenced under Financial Institutions (NSW) Code
48 Mergers and transfers of engagements commenced under Financial Institutions (NSW) Code
48 Mergers and transfers of engagements commenced under Financial Institutions (NSW) Code
(1) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Financial Institutions (NSW) Code and immediately before that date has not been completed, or been given effect.
(2) The transfer of engagements or merger may be completed, or be given effect, under Part 7 of the Financial Institutions (NSW) Code on or after the transfer date and, for that purpose, that Part, and other provisions of the Code relevant to that Part, continue to apply as if section 17 (1) had not commenced.
(3) For the purpose of the application mentioned in subsection (2):
(a) a reference in the Financial Institutions (NSW) Code to the SSA is taken to be a reference to either relevant Commonwealth body, and
(b) a reference in the Financial Institutions (NSW) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body, and
(c) the Financial Institutions (NSW) Code applies with all other necessary changes.
(4) For the purposes of this section, a transfer of engagements was commenced before the transfer date under Part 7 of the Financial Institutions (NSW) Code if, before that date:
(a) one of the following conditions was satisfied in relation to each society or foreign society involved:
(i) the transfer was approved by a special resolution of the society or foreign society, in accordance with the relevant Financial Institutions Code,
(ii) the relevant SSA made a determination, under the relevant Financial Institutions Code, that the transfer may be approved by the board of the society or foreign society, or
(b) in a case where each entity involved in the transfer is a society, FINCOM gave a direction, under the Financial Institutions (NSW) Code, requiring the transfer.
(5) For the purposes of this section, a merger was commenced before the transfer date if, before that date, one of the following conditions was satisfied in relation to each society or foreign society involved:
(a) the merger was approved by a special resolution of the society or foreign society, in accordance with the relevant Financial Institutions Code,
(b) the relevant SSA made a determination, under the relevant Financial Institutions Code, that the merger may be approved by the board of the society or foreign society.
(6) The functions and powers of the SSA that are necessary for the purposes of this section are conferred on each relevant Commonwealth body.
(7) In this section:
financial institutions agreement has the same meaning as in section 3 of the AFIC Code.
foreign society means a body corporate that, before the transfer date, was a society under the financial institutions legislation of another participating State, whether or not it was registered as a foreign society under Part 11 of the Financial Institutions (NSW) Code.
participating State means a State that, immediately before the transfer date, was a party to the financial institutions agreement and in which, immediately before that date, the foreign society was incorporated.
relevant Financial Institutions Code means:
(a) in relation to a society, the Financial Institutions (NSW) Code, or
(b) in relation to a foreign society, the law of another participating State corresponding to the Financial Institutions (NSW) Code.
relevant SSA means:
(a) in relation to a society, FINCOM, or
(b) in relation to a foreign society, the State supervisory authority under the financial institutions legislation of the other participating State.
society means an entity that, immediately before the transfer date, was a society under the Financial Institutions (NSW) Code.
49
Mergers and transfers of engagements commenced under Friendly Societies (NSW) Code
49 Mergers and transfers of engagements commenced under Friendly Societies (NSW) Code
49 Mergers and transfers of engagements commenced under Friendly Societies (NSW) Code
(1) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Friendly Societies (NSW) Code and immediately before that date has not been completed, or been given effect.
(2) The transfer of engagements or merger may be completed, or be given effect, under Part 7 of the Friendly Societies (NSW) Code on or after the transfer date and, for that purpose, that Part, and other provisions of the Code relevant to that Part, continue to apply as if section 17 (1) had not commenced.
(3) For the purposes of the application mentioned in subsection (2):
(a) a reference in the Friendly Societies (NSW) Code to the SSA is taken to be a reference to either relevant Commonwealth body, and
(b) a reference in the Friendly Societies (NSW) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body, and
(c) the Friendly Societies (NSW) Code applies with all other necessary changes.
(4) For the purposes of this section, a transfer of engagements was commenced before the transfer date under Part 7 of the Friendly Societies (NSW) Code if, before that date:
(a) one of the following conditions was satisfied in relation to each society or foreign society involved:
(i) the transfer was approved by a special resolution of the society or foreign society, in accordance with the relevant Friendly Societies Code,
(ii) the relevant SSA made a determination, under the relevant Friendly Societies Code, that the transfer may be approved by the board of the society or foreign society, or
(b) in a case where each entity involved in the transfer is a society, FINCOM gave a direction, under the Friendly Societies (NSW) Code, requiring the transfer.
(5) For the purposes of this section, a merger was commenced before the transfer date if, before that date, one of the following conditions was satisfied in relation to each society or foreign society involved:
(a) the merger was approved by a special resolution of the society or foreign society, in accordance with the relevant Friendly Societies Code,
(b) the relevant SSA made a determination, under the relevant Friendly Societies Code, that the merger may be approved by the board of the society or foreign society.
(6) The functions and powers of the SSA that are necessary for the purposes of this section are conferred on each relevant Commonwealth body.
(7) In this section:
financial institutions agreement has the same meaning as in section 3 of the AFIC Code.
foreign society means a body corporate that, before the transfer date, was a society under the friendly societies legislation of another participating State, whether or not it was registered as a foreign society under Part 11 of the Friendly Societies (NSW) Code.
friendly societies legislation has the same meaning as in section 8A of the AFIC Code.
participating State means a State which, immediately before the transfer date, was a party to the financial institutions agreement and in which, immediately before that date, the foreign society was incorporated.
relevant Friendly Societies Code means:
(a) in relation to a society, the Friendly Societies (NSW) Code, or
(b) in relation to a foreign society, the law of another participating State corresponding to the Friendly Societies (NSW) Code.
relevant SSA means:
(a) in relation to a society, FINCOM, or
(b) in relation to a foreign society, the State supervisory authority under the friendly societies legislation of the other participating State.
society means an entity that, immediately before the transfer date, was a society under the Friendly Societies (NSW) Code.
50
Australian Financial Institutions Appeals Tribunal
50 Australian Financial Institutions Appeals Tribunal
50 Australian Financial Institutions Appeals Tribunal
(1) This section applies on the transfer date.
(2) The Australian Financial Institutions Appeals Tribunal established under section 8 of the AFIC Act ceases to exist by reason of the Financial Sector Reform (Queensland) Act 1999 of Queensland.
(3) All applications made to the Australian Financial Institutions Appeals Tribunal under a Code for review of a decision that have not been decided are taken to have been withdrawn.
(4) In this section:
Code means the AFIC Code, Financial Institutions Code or Friendly Societies Code.
Division 6
State taxes
Division 6 State taxes
Division 6 State taxes
51
Exemption from State taxes
51 Exemption from State taxes
51 Exemption from State taxes
(1) No duty or other tax is chargeable under any Act in respect of anything effected by or done under this Act.
(2) Subsection (1) does not apply to Part 4.
Division 7
References to building societies, credit unions and friendly societies
Division 7 References to building societies, credit unions and friendly societies
Division 7 References to building societies, credit unions and friendly societies
52
Building societies and credit unions
52 Building societies and credit unions
52 Building societies and credit unions
Unless the contrary intention appears and subject to the regulations, a reference in an Act (other than this Act) or a statutory instrument to a building society or credit union has effect, on and after the transfer date, as a reference to an authorised deposit-taking institution.
53
Friendly societies
53 Friendly societies
53 Friendly societies
Unless the contrary intention appears and subject to the regulations, a reference in an Act (other than this Act) or a statutory instrument to a friendly society has effect, on and after the transfer date, as reference to:
(a) a body that, immediately before the transfer date, was a society within the meaning of the Friendly Societies Code, or
(b) a body that is a friendly society for the purposes of the Life Insurance Act 1995 of the Commonwealth.
Division 8
Savings or transitional regulations
Division 8 Savings or transitional regulations
Division 8 Savings or transitional regulations
54
Savings or transitional regulations
54 Savings or transitional regulations
54 Savings or transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Without limiting subsection (1), any such regulation may make provision for or with respect to the construction of references in any Act, statutory instrument or other document of any kind to:
(a) any Act repealed by this Act or any provision of any such Act, or
(b) the AFIC Code, the AFIC (NSW) Code, the AFIC (NSW) Regulations or any provision of any such Code or Regulations, or
(c) the Financial Institutions Code, the Financial Institutions (NSW) Code, the Financial Institutions (NSW) Regulations or any provision of any such Code or Regulations, or
(d) the Friendly Societies Code, the Friendly Societies (NSW) Code, the Friendly Societies (NSW) Regulations or any provision of any such Code or Regulations, or
(e) a previous law that corresponds with any such Act, Code or Regulations, or
(f) a law of another State or Territory that corresponds with any such Act, Code or Regulations, or
(g) AFIC or FINCOM, or
(h) building societies, credit unions or friendly societies, or
(i) any other entity referred to in any such Act, Code or Regulations, or
(j) any similar matters.
Part 6
Amendments
Part 6 Amendments
Part 6 Amendments
55
55
55 (Repealed)
Part 7
Miscellaneous
Part 7 Miscellaneous
Part 7 Miscellaneous
56
Delegation
56 Delegation
56 Delegation
The Minister may delegate his or her functions or powers under this Act to any person, other than this power of delegation.
57
Regulations
57 Regulations
57 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule 1
Schedule 1
Schedules 1, 2 (Repealed)
sch 1: Rep 2003 No 82, Sch 3.
sch 2: Rep 2003 No 82, Sch 3.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act and purposes
1 Name of Act and purposes
1 Name of Act and purposes
(1) This Act is the Financial Sector Reform (New South Wales) Act 1999.
(c) to wind up the New South Wales Financial Institutions Commission, and
(d) to enact transitional and ancillary provisions.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation.
(2) Different days may be appointed for the repeal of different provisions of any Act repealed by this Act.
3 Definitions
3 Definitions
3 Definitions
In this Act:
AFIC means the Australian Financial Institutions Commission established by the AFIC Act.
AFIC Act means the Australian Financial Institutions Commission Act 1992 of Queensland.
AFIC Code means the AFIC (NSW) Code.
AFIC (NSW) Code means the provisions applying before the transfer date because of section 5 of the Financial Institutions (New South Wales) Act 1992, and includes the AFIC (NSW) Regulations.
AFIC (NSW) Regulations means the provisions applying before the transfer date because of section 6 of the Financial Institutions (New South Wales) Act 1992.
AFIC Regulations means the AFIC (NSW) Regulations.
Deals with staff transfers and accrued entitlements where AFIC or FINCOM employees become APRA employees or are appointed to the Australian Public Service, including requirements to provide written statements of accrued benefits (ss 21-23, 32-34).
Enables specified registrations and recordings (land, other assets) to be made on the lodgement of written certificates signed by authorised APRA officers; such certificates are prima facie evidence (ss 12-15, 13-14).
Repeals the state Codes and the Financial Institutions Commission Act 1992 (s 17), but preserves specific transitional, savings and continuing application provisions in relation to past conduct and unresolved processes such as mergers and transfers of engagements commenced before the transfer date (ss 40-49, 54).
The Act leaves the timing of commencement to proclamation (s 2) and delegates regulatory detail and savings or transitional measures to regulations (ss 54, 57). It also contains a declared exemption from state duties and taxes for things effected under the Act, except for Part 4 transfers (s 51). The Act binds the Crown (s 4(1)) but does not make the Crown liable to be prosecuted for an offence (s 4(2)).
The statute therefore operates as a structurally conservative transition instrument: it re-designates the legal form of certain entities under the Corporations Law, reallocates enforcement authority from state supervisory bodies to Commonwealth regulators, preserves continuity of rights and liabilities for transfers of business, and sets out specific administrative steps for recording those transfers.
Main concepts
The Act organises its mechanics around a small set of recurring legal concepts; understanding them is necessary for identifying who decides, who pays and what behaviour changes.
Transfer date as legal hinge. The transfer date is the single organising temporal point. The Act repeatedly treats rights, liabilities, registrations and continuing obligations as measured against that date: entities become companies under the Corporations Law on the transfer date (s 5); many continuation provisions apply to anything done or omitted to be done before that date (ss 40-43, 42); specific staff, asset and litigation transitions operate from that date (e.g. ss 21-23, 25-27, 32-38). The transfer date is defined by the Commonwealth FSR Act (definition in s 3 of this Act and cross-reference to the FSR Act).
"Transferring financial institution" and non‑creation of entities. The Act treats a transferring financial institution as becoming a registered company by operation of law without creating a new legal person (s 5(1)-(3)). That has consequences for continuity of contracts, property and liabilities because the Act expressly states registration does not create a new entity (s 5(3)).
Conferral and substitution of enforcement authority. APRA and ASIC are expressly conferred the functions, powers and enforcement powers that AFIC and FINCOM had or that are necessary for the Act's operation (ss 6-7, 39, 44). The Act also provides that a Code applies "with all necessary changes" and gives examples of textual substitutions (for instance, references to AFIC or SSA are taken to be references to either relevant Commonwealth body) in the transitional application of Code provisions (ss 40-43).
Transfer of business mechanics via certificates. For voluntary and compulsory transfers under the FS(TB) Act, the receiving body is "taken to be the successor in law" for the assets and liabilities "to the extent of the transfer" (ss 10(3)-(4), 11(3)-(4)). Authorised APRA officers may sign certificates certifying the change; those certificates are prima facie evidence and can be lodged with land registries or other registrars to enable or record transfers (ss 12-15, 13-14).
Continuity of offences and proceedings. The Act preserves the application of certain sections of the former Codes to things done or omitted before the transfer date and provides that where prosecutions commenced before the transfer date were being pursued by AFIC or FINCOM, APRA or ASIC may continue those prosecutions or be substituted as a party (ss 26-27, 37-38, 40-43). It also emphasises that the preserved application of some Code provisions is not confined to pre‑transfer conduct where those provisions create offences (ss 40(2), 41(2), 42(2), 43(2)).
Staff and benefits transitions. The Queensland Minister or the NSW Minister may enter into transfer agreements under the Commonwealth FSR Act schedules to provide for AFIC or FINCOM employees to become APRA employees on specified dates (ss 21, 32). The Act stipulates that employment with AFIC or FINCOM ends immediately on transfer (ss 22(4), 33(2)) and requires that written statements of accrued benefits be provided before transfer (ss 23(1)-(2), 34(1)-(2)). The Act also states that employees are not entitled to payments or other benefits because of the termination under these sections (ss 22(5), 33(3)).
Preservation and treatment of society property. Where ASIC holds property vested under section 36 (e.g. property formerly of a society), ASIC has specified powers to act as trustee, to dispose of property not held on trust and to apply proceeds to expenses and authorised payments; detailed record keeping is required (s 47(2)-(6), (9)-(16)). The Act connects such disposals to Commonwealth corporate insolvency processes by declaring money received to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 in relation to the Corporations Act Part 9.7 (s 47(3A) and note).
Overrides and statutory supplants. The Act declares that Part 4 has effect despite anything in contracts, deeds or other instruments, and that actions under that Part do not place recipients in breach of contract, confidentiality obligations or laws, and that consents or advice otherwise required are taken to have been obtained (s 16). That construct converts statutory transfer certificates into instruments that operate outside ordinary private law impediments.
Savings, transitional regulations and delegated detail. The Act leaves many of the transitional adjustments to regulations, and permits savings or transitional regulations to have retroactive effect from assent or an earlier date subject to non‑prejudicial limits (s 54). The Governor is empowered to make regulations (s 57) and the Minister may delegate functions (s 56).
Each of these concepts specifies who decides and how rights and obligations move. The Act centralises decision-making for transfers and enforcement in APRA and ASIC while providing administrative devices (certificates, transfer agreements, regulation‑making powers, and Ministerial determinations) to operationalise the transition.
Who it affects
The Act identifies and affects a defined set of actors. Mapping them clarifies distribution of authority, who pays and how incentives change.
Transferring financial institutions. Defined by reference to Schedule 4 of the Corporations Law and the prior Codes, these include building societies, credit unions and friendly societies that were registered under the state Codes before the transfer date. On the transfer date such entities are taken to be companies under the Corporations Law (s 5(1)-(3)). These bodies face a change in regulatory regime, legal form recognition, potential changes in voting and capital structures (e.g. withdrawable shares conversion s 46), and exposure to Commonwealth regulators and applicable Commonwealth corporate law.
APRA and ASIC. The two Commonwealth regulators are primary decision makers under the Act. APRA and ASIC are conferred functions and powers by the Act (ss 6-7) and are given enforcement powers equivalent to those AFIC and FINCOM had under the former Codes (s 39). They may substitute for AFIC or FINCOM in existing prosecutions (ss 27, 38) and administer continuing Code provisions with necessary textual changes (ss 40-43). APRA may authorise officers to sign certificates under Part 4 (s 9), and authorised APRA officers may sign certificates certifying transfers (s 12).
AFIC and FINCOM and their employees. AFIC continues to have certain powers while it exists under the Queensland reform legislation and may do acts in New South Wales for those purposes (s 18). FINCOM is dissolved (s 28), but steps dealing with its funds, staff transfers and final reporting are required (ss 29-31, 32-34). AFIC and FINCOM employees are affected by potential transfers to APRA (ss 21-23, 32-34), including termination of prior appointment and requirements to receive statements of accrued benefits (ss 23, 34).
Ministers and the State. The Minister administering the Act retains decision rights in several provisions. The Minister determines distribution of the Supervision Fund money (s 29) after consultation; the Minister may enter into transfer agreements in relation to FINCOM under s 36 and may delegate functions (s 56). The State is substituted for AFIC or FINCOM in civil proceedings commenced before the transfer date where AFIC or FINCOM were parties (ss 26, 37).
Registrars and record‑keepers. The Registrar‑General and other persons or authorities with statutory registers are required to register or record matters on lodgement of APRA certificates identifying land or other assets as having been transferred to receiving bodies (ss 13-14). Those registrars therefore become responsible for acting on the basis of APRA certifications treated as evidence by the Act (ss 12-15).
Account holders, depositors, withdrawable shareholders, insurers and creditors. The Act treats withdrawable shares in building societies as converted to deposits immediately before the transfer date, preserving voting or other rights where applicable and cancelling the shares (s 46). Dormant accounts reclassified under former Code rules are reclassified back immediately before the transfer date in defined circumstances (s 45). Insurers and creditors dealing with societies whose registrations were cancelled pre‑transfer are affected by s 47 provisions on ASIC’s handling of property, obligations and potential claims against insurers (s 47(3)-(8)).
Courts and litigants. The Act affects ongoing and potential litigation where AFIC or FINCOM were parties. It substitutes the State for AFIC or FINCOM in civil proceedings commenced before the transfer date (ss 26(2), 37(1)), allows APRA or ASIC to continue criminal prosecutions commenced by AFIC or FINCOM (ss 27, 38), and validates evidence admissibility for substituted parties (ss 26(4), 37(3)). The Australian Financial Institutions Appeals Tribunal ceases to exist on the transfer date and any pending appeals are treated as withdrawn (s 50).
Entities engaged in mergers/transfers already in progress. Transfers of engagements or mergers begun under Parts 7 of the state Codes but not completed before the transfer date may be completed and given effect under the relevant Code provisions, applied with necessary changes and with the relevant Commonwealth body standing in for the State supervisory authority (ss 48-49).
Who pays and who benefits. The Act centralises enforcement and administrative authority in APRA and ASIC; those bodies gain powers and procedural tools. Regulated institutions bear the compliance cost of moving to company registration under the Corporations Law (s 5) and of responding to APRA/ASIC processes. The State bears the administrative burden of winding up FINCOM and making Ministerial determinations such as distributions from the Supervision Fund (s 29). Depositors and creditors generally retain rights because the Act carries assets, liabilities and duties across to receiving bodies (ss 10-11, 16), but the precise treatment of particular rights (for example, withdrawable shares) is prescribed and may require administrative procedures determined by FINCOM pre‑transfer (s 46(4)).
Key duties and rights
The Act imposes particular duties on State actors, former supervisory bodies, registrars and regulated institutions and preserves or transfers certain rights of third parties. The duties and rights are mainly administrative and transitional.
Duties imposed on APRA and ASIC
Exercise of conferred functions and powers. APRA and ASIC have the functions and powers conferred by the Act and may act in New South Wales in performing functions corresponding to the Act (ss 6-7). The functions necessary for the Division 4 transitional arrangements are conferred on APRA and ASIC (s 44). Those functions include enforcement powers equivalent to AFIC/FINCOM under the former Codes (s 39).
Prosecution and substitution powers. APRA and ASIC may continue prosecutions commenced by AFIC or FINCOM and be substituted in proceedings as the prosecuting or plaintiff authority (ss 27, 38).
Certification and evidentiary duties. APRA (through authorised officers) may certify matters under Part 4 and those certificates are evidence of matters certified; registrars and authorities may give effect to certificates when lodged (ss 12-15, 13-14).
Duties imposed on the Minister and State bodies
Distribution of Supervision Fund money. FINCOM must pay the Supervision Fund money to such entities and in such amounts as the Minister determines (s 29(1)); the Minister must consult industry representatives and other persons considered appropriate before making a determination (s 29(2)).
Transfer agreements. The Queensland Minister (for AFIC) and the NSW Minister (for FINCOM) may enter into transfer agreements under the FSR Act schedules to determine staff and assets transferred to APRA or ASIC (ss 21, 25, 32, 36).
Delegation. The Minister may delegate functions or powers under the Act, except the power of delegation itself (s 56).
Duties imposed on AFIC and FINCOM staff and on transferring employees
Staff transfers and statements. AFIC and FINCOM must provide written statements of accrued benefits, remuneration and length of service before employees transfer to APRA or to the Australian Public Service (ss 23(1)-(2), 34(1)-(2)).
Ending employment on transfer. When employees become APRA employees or are appointed to the Australian Public Service, their AFIC or FINCOM employment immediately ends and they are not entitled to payments because of the termination under these sections (ss 22(3)-(5), 33(2)-(3)).
Duties on registrars, record keepers and ASIC where societies dissolved or deregistered
Registration following certificates. When a receiving body becomes owner of land under this Part, the Registrar‑General may register or record the matter on lodgement of a certificate signed by an authorised APRA officer (s 13(c)-(d)). Similarly, persons or authorities with registers for other assets may register changes on lodgement of APRA certificates (s 14).
ASIC’s duties with society property. ASIC must keep a record of property vested in it under s 36, keep records of dealings and accounts of money received and deal with such property as provided (s 47(6)). ASIC may act as trustee or apply to a court for appointment of a trustee where property was held on trust (s 47(2)), and may establish a company for a society if satisfied registration should not have been cancelled (s 47(9)-(11)).
Rights preserved and transferred
Successor in law rights for receiving bodies. Receiving bodies in voluntary or compulsory transfers are taken to be successors in law to the extent of the transfer; assets, liabilities and duties specified in transfers become assets, liabilities and duties of receiving bodies without further transfer or assignment (ss 10(3)-(4), 11(3)-(4)). Approved section 20 or section 30 statements or certificate provisions may specify particular outcomes or mechanisms and those effects follow the statements or certificates (ss 10(5), 10(5)(a)-(b); 11(5)-(6)).
Preservation of rights of depositors and shareholders. Withdrawable shares in building societies immediately before the transfer date are deemed converted to deposits with the same voting or other rights where applicable; the deposit holder continues to hold the same rights, and the shares are cancelled (s 46(1)-(3)). Dormant account transfers that had occurred under the Financial Institutions Code are reversed in specified circumstances (s 45).
Preservation of civil remedies and admissibility of evidence. For proceedings commenced before the transfer date to which AFIC or FINCOM were parties, the State is substituted and evidence admissible for or against AFIC or FINCOM is admissible for or against the State (ss 26(2)-(4), 37(1)-(3)). Prosecutions begun by AFIC/FINCOM may continue by APRA or ASIC (ss 27, 38).
Limitations and exclusions
Crown immunity from prosecution. While the Act binds the Crown (s 4(1)), it does not make the Crown liable to be prosecuted for an offence (s 4(2)). That limits enforcement actions directly against the Crown under the Act.
Tax exemptions with an exception. No duty or other tax is chargeable under any Act in respect of anything effected by or done under this Act (s 51(1)), but the tax exemption does not apply to Part 4 transfers (s 51(2)).
Procedural duties
Consultation obligations. The Minister must consult "such representatives of the financial institutions industry and other persons as the Minister considers appropriate" before determining distributions from the Supervision Fund (s 29(2)). The duty is procedural rather than mandatory in terms of naming specific consultees.
Regulation‑driven savings and transitional measures. The regulations may make savings or transitional provisions and may backdate where permitted subject to protections against prejudicing private persons (s 54(1)-(3)).
These duties and rights are mainly administrative and transitional. The Act transfers regulatory authority to Commonwealth bodies while preserving rights and remedies for third parties and giving administrative tools (certificates and transfer agreements) to effect transfers of business, staff, assets and liabilities.
Penalties and enforcement
The Act itself is largely a transitional and administrative statute; it does not invent detailed new criminal penalties but it preserves and re‑allocates enforcement capacity, and it provides evidentiary and procedural mechanisms that facilitate enforcement and registration.
Enforcement structure
Conferral of enforcement powers to APRA and ASIC. The Act expressly confers on the relevant Commonwealth bodies the same enforcement powers relating to anything done or omitted under a Code before the transfer date as AFIC or FINCOM had immediately before that date (s 39(1)). It also provides that APRA and ASIC have the functions and powers conferred by or under the Act (ss 6-7) and that the necessary functions and powers for the Division 4 transitional arrangements are conferred on APRA and ASIC (s 44). Those conferrals give APRA and ASIC the legal authority to investigate and prosecute matters arising under the Codes insofar as the Act preserves their application.
Preservation of Code offences and their prosecutorial ambit. Selected provisions of the AFIC Code, the Financial Institutions Code and the Friendly Societies Code continue to apply in relation to conduct before the transfer date and, where those provisions create offences, their application is not limited to pre‑transfer conduct (ss 40(1)-(3), 41(1)-(3), 42(1)-(3), 43(1)-(3)). The statutory text includes specific textual substitutions so that references to AFIC or the State supervisory authority are taken to be references to the relevant Commonwealth body (for example, s 40(3)(a)-(b), s 41(3)(a)-(c), s 43(3)(a)-(b)).
Continuation of pending prosecutions. Where AFIC or FINCOM had commenced prosecution under specified Code provisions before the transfer date and the prosecution was not completed, APRA or ASIC may continue the prosecution and may be substituted as the prosecuting party (ss 27(1)-(3), 38(1)-(3)). The Act confers the necessary functions and powers on APRA and ASIC to enable that substitution (ss 27(3), 38(3)).
Evidential devices and administrative enforcement tools
Certificates by authorised APRA officers. An authorised APRA officer may sign a certificate certifying that particular assets or liabilities have become transferred assets or liabilities of a receiving body (s 12(1)(a)-(b)). A certificate is evidence of the matters certified in any proceedings (s 12(2)). Documents purporting to be such certificates are, unless contrary is established, taken to be valid (s 15).
Registration on lodgement of certificates. Where land or other assets become the property of receiving bodies under the Part, registrars with statutory responsibility (Registrar‑General for land, other registers for other assets) may register or record the change and "give effect to the certificate" on lodgement (ss 13(c)-(d), 14(1)(c)-(d)). The Act therefore creates an administrative pathway for asset transfers that operates independently of private assignments or conveyances (s 16(1)).
Override of private law impediments. The Act states that Part 4 has effect despite anything in contracts, deeds, undertakings or other instruments and that actions done under the Part do not place receiving bodies or other persons in breach of contract, confidence or other civil wrongs (s 16(1)-(2)). That reduces the risk of private law defences obstructing statutory transfers and simplifies enforcement of the statutory transfer regime.
Limitations on enforcement reach
Crown non‑prosecution. Section 4(2) expressly provides that nothing in the section makes the Crown liable to be prosecuted for an offence. That is an explicit limit on the reach of prosecutorial powers as they might otherwise apply to Crown acts under the Act.
No new penalty schedules within the Act text. The Act itself does not list monetary penalties, imprisonment terms or other specific sanctions in its text; instead, it preserves and applies offences from the previous Codes or other laws and hands enforcement jurisdiction to APRA and ASIC (ss 39-43). Practitioners must therefore consult the AFIC Code, Financial Institutions Code, Friendly Societies Code and relevant Commonwealth legislation for specific penalty provisions.
Administrative enforcement consequences
Registrars and recording authorities act on certificates. Registrars’ statutory power to register on lodgement of a certificate (ss 13-14) makes those certificates a practical enforcement tool for effecting third party changes of title and recording transfers, reducing costs of individual conveyancing steps.
ASIC’s property and trustee functions. In relation to societies dissolved or deregistered before transfer, ASIC has powers to act as trustee or to dispose of property not held on trust, to apply proceeds to expenses and authorized payments and to establish companies for societies where appropriate (s 47(2)-(4), (9)-(11)). ASIC must keep records and accounts of such dealings (s 47(6)). These are administrative enforcement and remedial tools for dealing with residual assets and liabilities.
Procedural and regulatory enforcement
Regulation‑making and delegated powers. The Governor may make regulations necessary or convenient to carry out the Act (s 57). The Minister may delegate functions (s 56). These regulatory devices create enforcement levers and compliance obligations to be fleshed out by subordinate instruments, including savings or transitional regulations that can be backdated subject to the non‑prejudicial constraints in s 54.
In short, the Act moves enforcement and prosecutorial capability from state supervisory bodies to Commonwealth regulators, preserves the criminal and civil reach of selected Code provisions, and supplies administrative mechanisms (certificates, registrar obligations, ASIC trustee powers) for effecting and enforcing transfers. The Act does not itself specify new penalty amounts but preserves existing offences and confers power to investigate and prosecute them on APRA and ASIC.
How it interacts with other laws
The Act is a transitional instrument that stitches together state Codes, Commonwealth reform Acts and the Corporations Law and related corporate legislation. Interactions are explicit and numerous in the text; below are the principal cross‑references and the mechanical consequences they create.
Interaction with Commonwealth reform Acts
Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (FSR Act). The Act relies on the FSR Act for the definition of the transfer date (definition in s 3), for the schedule mechanisms authorising transfer agreements relating to staff and assets (ss 21, 25, 32, 36 refer to Division 2 and Division 3 of Part 1 of Schedule 8 to the FSR Act), and more generally for the Commonwealth reform architecture referenced throughout.
Financial Sector (Transfers of Business) Act 1999 (FS(TB) Act). Part 4 of this Act explicitly implements transfers under the FS(TB) Act. Sections 10 and 11 operate when a certificate of transfer under sections 18 or 33 of the FS(TB) Act comes into force and treat the receiving body as successor in law to the transferring body to the extent of the transfer (ss 10(2)-(4), 11(2)-(4)).
Australian Prudential Regulation Authority Act 1998 (APRA Act). The Act references the APRA Act for definitions (APRA employee defined by reference to s 45 of the APRA Act in s 3) and to provide that APRA may authorise persons to exercise functions in this Act (s 9). APRA’s conferral of functions and power to act in New South Wales is governed by this Act’s text and the APRA Act’s appointment provisions.
Interaction with existing Codes and state statutes
AFIC Code, Financial Institutions (NSW) Code and Friendly Societies (NSW) Code. The Act repeals the Financial Institutions (NSW) Act 1992 and Friendly Societies (NSW) Act 1997 (s 17), dissolves FINCOM (s 28) and winds up AFIC’s functions in New South Wales to the extent provided (s 18). Nevertheless, the Act preserves the application of specific parts and provisions of the AFIC Code, the Financial Institutions Code and the Friendly Societies Code in respect of acts done or omitted before the transfer date and, in some cases, continues their enforceability beyond that date where they create offences (ss 40-43). The Act supplies textual substitutions so that references to AFIC, the SSA or the Minister in those Codes are taken to be references to the relevant Commonwealth bodies or the Minister administering this Act (for example, s 40(3)(a), s 41(3)(a), s 43(3)(a)).
Corporations Law and Corporations Act 2001. The Act treats transferring financial institutions as becoming companies under the Corporations Law on the transfer date and expressly states that registration does not create a new legal entity (s 5). Where ASIC handles property of deregistered societies and disposes of assets, money received is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to Part 9.7 of the Corporations Act 2001 (s 47(3A) and accompanying note). The Act therefore links state vesting and asset disposition powers to federal corporate insolvency and winding up machinery.
Public Service Act 1922 and appointments. The Act contemplates appointments to the Australian Public Service under s 81B(1) of the Public Service Act 1922 as a mechanism by which AFIC or FINCOM employees may become APS appointees post‑transfer; the Act draws consequences for the ending of prior employment and statements of entitlements (ss 22(2), 33(1)(b)(i)).
Life Insurance Act 1995. The Act provides that a reference in other Acts to a friendly society may, after the transfer date, be a reference to a body that is a friendly society for the purposes of the Life Insurance Act 1995 (s 53(b)). That creates a pathway for Commonwealth treatment of friendly societies within the life insurance regulatory framework.
Interaction with registries and property law
Registrations and certificates. For land and other assets transferred under Part 4, the Registrar‑General and other authorities responsible for registers are authorised to register or record the change on lodgement of an APRA certificate (ss 13-14). Section 16(1) states that Part 4 has effect despite anything in contracts or other instruments, and s 16(2) clarifies that things done under Part 4 do not constitute breaches of contract, confidentiality obligations or laws, thereby operating as a statutory override of private law impediments to registration and transfer.
Interaction with state tax law
Exemption from state duties and taxes. Section 51(1) provides that no duty or other tax is chargeable under any Act in respect of anything effected by or done under this Act, but expressly excludes Part 4 from that exemption (s 51(2)). Practically, the exemption removes stamp duty and similar state charges for most operations done under the Act but preserves state tax exposure for transfers of business under Part 4.
Regulatory and subordinate law interactions
Regulation‑making powers and savings regulations. The Act delegates many transitional constructions and reference conversions to regulations (s 54(1)), permitting retroactive operation from assent subject to limits protecting private persons (s 54(3)). The Governor may make regulations necessary or convenient to give effect to the Act (s 57). Those subordinate instruments will determine many practical cross‑law interactions, including the construction of references in other state Acts to former Codes or enactments (s 54(4)(a)-(j)).
Operational consequences of interactions
Where the Act preserves parts of Codes and alters references, the substantive content of those Code provisions and the timing of their continued application will need to be considered alongside Commonwealth Acts mentioned in the text. The Act often operates by substitution (for example, references to AFIC or SSA read as references to APRA or ASIC) and by conferring power to continue prosecutions or civil proceedings with the State or a Commonwealth body standing in for the former regulator (ss 26-27, 37-38, 40-43). Practitioners will therefore need to read the preserved Code provisions with the textual substitutions the Act prescribes.
Overall, the Act is an integration instrument rather than an isolated statute. Its legal effect depends on linked Commonwealth legislation, the pre‑existing Code provisions it preserves, registries’ administrative rules and regulations made under the Act. For compliance and advice, reading the Act alongside the referenced Commonwealth Acts, the Corporations Law provisions and any regulations made under s 57 and s 54 will be necessary.
Amendment history
The provided text contains a small number of recorded amendments and repeals set out in footnotes in the statutory text. The Act’s amendment record as shown in the source is as follows.
Amendments noted in 2001. Sections 6 and 7 carry annotations indicating amendment by 2001 No 34, Schedule 6.3: s 6 annotated "Am 2001 No 34, Sch 6.3 [1]" and s 7 annotated "Am 2001 No 34, Sch 6.3 [2]". Section 47 is similarly annotated "Am 2001 No 34, Sch 6.3 [3] [4]". The annotations identify the amending instrument as 2001 No 34 and the schedule that effected the amendment, but the source text does not reproduce the amending words; it merely records that the sections were amended.
Repeals in 2003. Section 55 is recorded as repealed by 2003 No 82, Schedule 3: the text gives "s 55: Rep 2003 No 82, Sch 3." Schedules 1 and 2 are also recorded as repealed by 2003 No 82, Schedule 3 ("sch 1: Rep 2003 No 82, Sch 3." and "sch 2: Rep 2003 No 82, Sch 3."). The source text therefore records these subsequent repeals and indicates that parts of the Act’s schedules were removed.
Original repeals within the Act. The Act itself repealed New South Wales legislation on enactment: it repealed the Financial Institutions (New South Wales) Act 1992 and the Friendly Societies (New South Wales) Act 1997 in s 17(1), and repealed the Financial Institutions Commission Act 1992 in s 17(2). Those repeals are part of the Act’s original text rather than later amendments.
Commencement. The Act’s commencement is by proclamation (s 2(1)), with a power to appoint different days for the repeal of different provisions of any Act repealed by this Act (s 2(2)). This means the Act was designed to come into force in phases as proclaimed.
Delegation and regulation powers retained. Sections 56 and 57 allow for Ministerial delegation and for regulations consistent with the Act. Section 54 authorises savings or transitional regulations, and s 54(2) permits those regulations to take effect from assent or an earlier date subject to the protections in s 54(3). These are continuing statutory powers that enable subordinate law to make further transitional changes and may have been used in amending practice.
Cross‑references to Commonwealth amendments. The Act’s operation depends on Commonwealth Acts (FSR Act, FS(TB) Act, APRA Act, Corporations Act and Corporations (Ancillary Provisions) Act 2001). Some of the annotations (for example, those referring to the Corporations (Ancillary Provisions) Act 2001 in s 47) indicate later Commonwealth enactments that affect how the Act’s provisions operate in practice. These are recorded in the source text as notes and cross‑references.
The source does not provide a full historical statute book of amendments, nor does it reproduce the exact textual changes in the 2001 and 2003 instruments. The annotations are the only amendment history given in the provided text. For a comprehensive legislative history practitioners would need to consult the official NSW legislation database and the Commonwealth instruments referenced, particularly the 2001 No 34 and 2003 No 82 amending instruments cited in the footnotes.
Litigation history
The provided Act text does not contain any judicial decisions, case names or a descriptive litigation history. The statute itself creates mechanisms that affect litigation and prosecutions, and it prescribes how pending and potential proceedings are to be handled; these procedural provisions are set out in the Act and therefore become the primary source for any litigation arising from the transitional arrangements. The key litigation‑affecting provisions in the Act are these.
Substitution of the State for AFIC or FINCOM in civil proceedings. For proceedings commenced before the transfer date to which AFIC or FINCOM were parties, the State of Queensland (for AFIC matters) or the State (for FINCOM matters) is substituted as a party for AFIC or FINCOM respectively (ss 26(2), 37(1)). For proceedings that could have been brought against AFIC or FINCOM but were not commenced before the transfer date, the proceeding may instead be brought against the State (ss 26(3), 37(2)). The Act also permits evidence admissible for or against AFIC or FINCOM to be admissible for or against the State (ss 26(4), 37(3)). These substitution and evidence provisions are likely to have been relied on in any litigation involving AFIC or FINCOM post‑transfer, but the source contains no case law.
Continuation and substitution in offence prosecutions. Where AFIC or FINCOM or a person authorised by them commenced prosecutions under specified Code provisions before the transfer date and they were not completed before that date, APRA or ASIC may continue the prosecution and be substituted as the prosecuting authority (ss 27(1)-(3), 38(1)-(3)). The Act confers necessary functions and powers on APRA and ASIC to permit this continuation. Any litigation on the propriety of substitutions or continuations would need to address these statutory substitutions, but again, the source contains no judicial authorities or outcomes.
Withdrawal of appeals to the Australian Financial Institutions Appeals Tribunal. The Act provides that the Australian Financial Institutions Appeals Tribunal ceases to exist on the transfer date and that all applications made to it under a Code for review of a decision that had not been decided are taken to have been withdrawn (s 50(2)-(3)). Litigation arising from withdrawal of appeals could invoke procedural fairness or jurisdictional questions, but the Act treats the applications as withdrawn; the source does not record subsequent legal challenges.
Provisions validating actions and overriding contracts. Section 16 declares that Part 4 has effect despite contracts or other instruments and states that things done under the Part do not place receiving bodies, transferring bodies or other persons in breach of contract, duty of confidence or civil wrong. That statutory override will be central to litigation scenarios where private law claims are raised against transfers done under the Part. The Act itself forecloses breach claims arising solely from operation of Part 4, but the provided text contains no cases testing those clauses.
ASIC’s power to establish companies and deal with property. Section 47 gives ASIC powers to establish a society as a company where registration was cancelled, validate acts and make orders following such establishment, and to deal with society property. These powers could be the subject of judicial review or litigation testing the exercise of discretion. The Act sets procedures and record‑keeping obligations (s 47(6)), but the source contains no litigation history.
In sum, the Act substantially reconfigures the procedural posture for litigation involving AFIC and FINCOM and the entities previously regulated under the state Codes. The Act supplies substitution rules, continuation powers for prosecutions and statutory overrides of private law obstacles. The legislative text itself is the record of the rules that would govern litigation originating in the transition period. The provided source contains no reported judicial decisions or case references. To determine whether litigation occurred or how courts interpreted specific provisions, practitioners must consult case law databases and subsequent judicial reports outside the Act.
Gotchas
This Act is administrative and transitional in design but contains multiple provisions that create practical traps and consequential administrative outcomes. Below are concrete items to watch, each grounded in the Act.
Transfer date dependence and staggered commencement. The Act hinges on the transfer date as defined in the Commonwealth FSR Act and the NSW commencement is by proclamation (s 2). Different provisions may be proclaimed on different days (s 2(2)). The practical consequence is timing uncertainty until proclamation dates and the Commonwealth transfer date are known; contracts, corporate actions and staff transitions that occur in the window immediately before proclamation require careful timing analysis.
Registration as company does not create a new entity, but legal form and regulatory regime change. Section 5 takes each transferring financial institution to be registered as a company under the Corporations Law and states registration does not create a new legal entity (s 5(1)-(3)). That ensures continuity of identity but moves the entity into a different corporate and regulatory regime (Corporations Law) which brings different compliance obligations. Practitioners must not assume a fresh incorporation; instead authorities, contracts and registers will need to be updated to reflect the company form as of the transfer date.
Certificates as conclusive administrative devices. Authorised APRA officers may sign certificates certifying that particular assets or liabilities have become transferred assets or liabilities (s 12). Those certificates are admissible evidence and documents purporting to be such certificates are taken to be valid unless rebutted (s 15). Registrars are empowered to act on lodgement of the certificate (ss 13-14). This is an administrative shortcut that can be difficult to overturn once registered and may cut across prior private agreements that would otherwise require consent or notice.
Statutory override of private impediments. Part 4 has effect despite anything in contracts or other instruments, and things done under that Part do not place persons in breach of contract or confidentiality or other civil wrongs; advice or consent otherwise necessary is taken to have been obtained (s 16(1)-(3)). That protects transfers from private law claims but may surprise counterparties expecting to rely on contractual transfer restrictions.
Crown immunity from prosecution. Section 4(2) says nothing in the section makes the Crown liable to be prosecuted for an offence. This creates an asymmetry in enforcement: the Act binds the Crown (s 4(1)) but does not expose the Crown to criminal prosecution under the Act. Practitioners should be alert to potential limits on remedies where the State is substituted for AFIC or FINCOM.
Employee termination on transfer without payment. The Act explicitly ends AFIC and FINCOM employment immediately on transfer and states employees are not entitled to receive any payment or other benefit because their appointment or employment ends under these sections (ss 22(4)-(5), 33(2)-(3)). That is a stark contractual consequence: affected employees’ remedies and entitlements will depend on the terms and any transfer agreement.
Statements of accrued benefits required but not a guarantee of payment. AFIC and FINCOM must provide written statements of accrued benefits and other details before staff transfers (ss 23, 34). The Act requires disclosure of entitlements but separately states transferred employees are not entitled to payment by virtue of the termination under the Act (ss 22(5), 33(3)). The statement is informational rather than a guarantee of a cash remedy under the Act itself.
Conversion of withdrawable shares to deposits subject to FINCOM standards. Withdrawable shares in building societies are deemed converted into deposits and cancelled, but the conversion applies "subject to such standards or rules about the conversion of withdrawable shares to deposits as are determined by FINCOM" (s 46(4)). Post‑transfer, the details of conversion and any accompanying rights are therefore dependent on administrative standards set by FINCOM pre‑transfer. Practitioners should confirm what standards exist and whether they were applied.
Tax exemption with a narrow exclusion. The Act provides that no duty or other tax is chargeable in respect of anything effected by the Act (s 51(1)). However, that protection does not apply to Part 4 transfers (s 51(2)). Transfers of business under Part 4 may therefore attract stamp duty or other charges; parties should not assume blanket tax immunity.
Continuation of Code offences beyond transfer date. The Act preserves the operation of certain Code provisions and states that where a preserved provision creates an offence, its application is not confined to pre‑transfer conduct (ss 40(2), 41(2), 42(2), 43(2)). Entities and individuals need to check which offences are preserved and consider exposure to prosecution by APRA or ASIC under the same textual provisions but with new enforcement bodies.
ASIC’s powers and record‑keeping obligations for dissolved societies. Where a society’s registration was cancelled before the transfer date, ASIC may dispose of property not held on trust and apply proceeds to expenses and authorised payments and must keep records of property and dealings (s 47(3)-(6)). Disposal may affect creditors and claimants; the Act also allows ASIC to establish a company for such a society (s 47(9)-(12)). Practitioners should track ASIC’s administration of such property and ensure claims are lodged promptly.
Statutory withdrawal of appeals and cessation of tribunal. The Australian Financial Institutions Appeals Tribunal ceases to exist on the transfer date and pending appeal applications are taken to have been withdrawn (s 50(2)-(3)). Individuals or entities with matters before that tribunal must re‑assess available review pathways.
Dependence on regulations and delegated instruments. Many transitional and interpretive issues are left to regulation (s 54) and Ministerial or transfer agreements (ss 21, 25, 32, 36). The Act’s practical operation therefore depends on subordinate instruments and agreements which may create uncertainty where not yet finalised.
Each of these is a concrete operational issue, not an abstract criticism. The Act’s text creates the outcomes described; practitioners must seek the accompanying transfer agreements, any FINCOM standards and the regulations made under the Act to resolve the detailed practical consequences.
How to comply
Compliance under this Act is primarily about preparing for the transfer date, supplying required statements and records, facilitating certificate processes, and understanding the new enforcement landscape. Below is a practical checklist and action steps tied to specific sections.
For transferring financial institutions (building societies, credit unions, friendly societies)
Prepare for company registration under the Corporations Law. On the transfer date the institution is taken to be registered as a company under the Corporations Law without the creation of a new entity (s 5). Ensure corporate registers, ASIC filings, and board records are aligned to reflect company status, and prepare corporate governance changes required by company law.
Review capital instruments and member rights. If the society or building society had withdrawable shares, identify holders and apply the FINCOM‑determined standards on conversion to deposits (s 46(1)-(4)). Confirm how voting or other rights are carried forward and document cancellations of shares.
Dormant accounts and account re‑classification. If before the transfer date a society moved funds to dormant accounts under section 138A(4)(c) of the Financial Institutions Code, determine whether the reversal in s 45 applies and update account records accordingly.
Check ongoing mergers and transfers. For mergers and transfers of engagements commenced under state Codes before the transfer date, confirm whether they may be completed post‑transfer under the state Code provisions applied with necessary substitutions (ss 48-49). Liaise with the relevant Commonwealth body standing in for the SSA as the Act prescribes.
For APRA, ASIC and authorised APRA officers
Establish authorisations and delegation. APRA must authorise persons in writing to perform the functions or powers of authorised APRA officers under particular provisions of Part 4 (s 9). Implement internal authorisation instruments and clearly identify who can sign transfer certificates (s 12).
Prepare certificates for transfers and registrars. Prepare standardised certificate forms and procedures for lodging certificates with the Registrar‑General and other registers (ss 12-14). Ensure certification processes include asset and liability identification, authentication by authorised APRA officers and proper lodging with registrars.
Maintain records and compliance files. Where ASIC holds property vested under section 36, it must keep records of property, dealings and accounts of money received and related vouchers and papers (s 47(6)). Implement record‑keeping protocols that meet those statutory requirements.
For AFIC and FINCOM and their staff
Prepare transfer agreements and staff statements. Coordinate with the Queensland Minister or NSW Minister as appropriate to enter into transfer agreements under the FSR Act schedule provisions to transfer staff to APRA (ss 21, 32). Ensure AFIC or FINCOM prepares and delivers written statements of accrued benefits, remuneration and length of service to employees and to APRA or the Commonwealth Public Service Commissioner before transfers occur (ss 23(1)-(2), 34(1)-(2)).
Manage end of employment consequences. Notify staff that employment with AFIC or FINCOM will end immediately on transfer and that the Act provides no entitlement to payment solely because employment ends under the relevant sections (ss 22(4)-(5), 33(2)-(3)). Collate documentation to support future claims and ensure confidentiality and records obligations are met.
For registrars and authorities keeping asset registers
Accept and give effect to APRA certificates. Registrars with responsibility for land and other assets must be prepared to accept certificates signed by authorised APRA officers, register or record the matter and "give effect to" the certificate (ss 13(c)-(d), 14(1)(c)-(d)). Review statutory powers and internal procedures to ensure timely registration on lodgement.
Implement rebuttal procedures for certificates purporting to be valid. The Act treats documents purporting to be certificates as valid unless the contrary is established (s 15). Registrars should design administrative checks to detect forged or defective certificates but should also be aware of the statutory evidentiary presumption.
For Ministers and the State
Make determinations for the Supervision Fund. FINCOM must pay money standing to the credit of the Supervision Fund to entities and in amounts as the Minister determines; before making determinations the Minister must consult appropriate industry representatives (s 29(1)-(2)). Maintain consultation records and communicate criteria for distributions.
Coordinate transfer agreements and asset transfers. The Minister may enter into transfer agreements under the FSR Act schedule provisions for AFIC or FINCOM assets and staff (ss 21, 25, 32, 36). Ensure agreements are executed in a timely way and that they specify dates for staff transitions and asset vesting.
For creditors, depositors and third parties
Assert rights and make claims where necessary. Where a society’s property is vested in ASIC and ASIC disposes of or deals with the property, any money received must be applied to expenses and authorised payments first, with the remainder dealt with under Corporations Act Part 9.7 as applied (s 47(3)-(5)). Creditors and claimants should register claims and follow ASIC’s notice and claiming procedures. For insurers, s 47(8) provides for recovery from insurers in specified circumstances which claimants should pursue as appropriate.
Monitor for registrations driven by APRA certificates. Third parties should monitor land and asset registers for lodgement of APRA certificates changing registered ownership; title and property interests may be affected by nunc pro tunc administrative lodgements (ss 12-15, 13-14).
Regulatory compliance and review
Map preserved offences and compliance obligations. Examine each Code provision preserved and the textual substitutions the Act requires (ss 40-43) to identify continuing criminal or civil exposure and update compliance programmes accordingly. Note that the preserved application of provisions that create an offence is not limited to pre‑transfer conduct (s 40(2), s 41(2), s 42(2), s 43(2)).
Track subordinate instruments. The Act authorises savings and transitional regulations (s 54) and general regulations (s 57), which will likely determine many practical compliance details. Regularly check the NSW Gazette and relevant government portals for regulations, transfer agreements and FINCOM standards that finalise operational details.
Engage with APRA and ASIC. Given APRA and ASIC replace AFIC and FINCOM for enforcement and supervisory functions, affected entities should establish or update liaison channels with the relevant Commonwealth body and ensure they meet records, reporting and prudential requirements consistent with the new regulators’ expectations.
Practical documentation to prepare
Updated corporate registers and constitutions reflecting company status under Corporations Law (s 5).
Statements of accrued benefits, remuneration and length of service for any AFIC/FINCOM employees transferring to APRA or the APS (ss 23, 34).
Templates for APRA certificates and internal controls for authorised APRA officers (ss 9, 12-15).
Records for Supervision Fund distributions, including consultation logs (s 29).
Files tracking any continuing proceedings, substitutions, or prosecutions that may be continued by APRA or ASIC (ss 26-27, 37-38).
In practice, compliance requires coordination among corporate, employment, property and regulatory teams, and close monitoring of regulations and transfer agreements that supplement the Act. The Act provides the high‑level legal framework; the subordinate instruments and agency processes implement the practical steps required.
Part 2Registration of certain entities as companies
APRA employee means a person appointed under section 45 of the APRA Act.
ASIC means the Australian Securities and Investments Commission.
authorised APRA officer, in a provision of Part 4, means a person authorised under section 9 to perform or exercise the functions or powers of an authorised APRA officer under that provision.
employee, in relation to AFIC or FINCOM, includes a person engaged by AFIC or FINCOM on a contract for services.
enforcement power means a function or power relating to:
(a) the investigation of an offence, or
(b) the institution and carrying on of a prosecution for an offence, or
(c) matters relating to an investigation or prosecution of an offence.
Financial Institutions Code means the Financial Institutions (NSW) Code.
financial institutions legislation has the same meaning as in the AFIC Code.
Financial Institutions (NSW) Code means the provisions applying before the transfer date because of section 8 of the Financial Institutions (New South Wales) Act 1992, and includes the Financial Institutions (NSW) Regulations.
Financial Institutions (NSW) Regulations means the provisions applying before the transfer date because of section 9 of the Financial Institutions (New South Wales) Act 1992.
FINCOM means the New South Wales Financial Institutions Commission.
FINCOM employee means a member of the staff of FINCOM employed under section 18 of the Financial Institutions Commission Act 1992, and includes the Chief Executive of FINCOM.
fiscal bodies legislation has the same meaning as in section 3 of the AFIC Code.
Friendly Societies Code means the Friendly Societies (NSW) Code.
Friendly Societies (NSW) Code means the provisions applying before the transfer date because of section 5 of the Friendly Societies (New South Wales) Act 1997, and includes the Friendly Societies (NSW) Regulations.
Friendly Societies (NSW) Regulations means the provisions applying before the transfer date because of section 6 of the Friendly Societies (New South Wales) Act 1997.
transfer date means the date that, under section 3 (16) of the FSR Act, is specified as the transfer date for the purposes of that Act.
4 Act to bind Crown
4 Act to bind Crown
4 Act to bind Crown
(1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
(2) Nothing in this section makes the Crown in any of its capacities liable to be prosecuted for an offence.
Part 2 Registration of certain entities as companies
Part 2 Registration of certain entities as companies
Part 2 Registration of certain entities as companies
5 Transferring financial institutions
5 Transferring financial institutions
5 Transferring financial institutions
(1) On the transfer date, each transferring financial institution of this jurisdiction is taken, in accordance with Schedule 4 to the Corporations Law of New South Wales, to become registered as a company under that Law under the name under which the institution was registered under the previous governing Code immediately before the transfer date.
(2) Subsection (1) applies even if the institution is an externally-administered body corporate immediately before the transfer date.
(3) Registration under the Corporations Law of New South Wales of a transferring financial institution of this jurisdiction as a company does not create a new legal entity.
(4) In this section, previous governing Code and transferring financial institution of this jurisdiction have the same respective meanings as they have in Schedule 4 to the Corporations Law.
Part 3 Conferral of functions and powers on APRA and ASIC
Part 3 Conferral of functions and powers on APRA and ASIC
Part 3 Conferral of functions and powers on APRA and ASIC
6 Conferral of functions and powers on APRA
6 Conferral of functions and powers on APRA
6 Conferral of functions and powers on APRA
(1) APRA has the functions and powers conferred or expressed to be conferred on it by or under this Act.
(2) APRA has power to do acts in New South Wales in the performance or exercise of any function or power conferred or expressed to be conferred on APRA by or under a law of another jurisdiction corresponding to this Act.
(3) Without limiting the operation of section 31 of the Interpretation Act 1987, this section does not purport to impose a duty on APRA to perform any function or exercise any power conferred or expressed to be conferred on it by or under this Act if the imposition of the duty would be beyond the legislative power of the Parliament of the State.
s 6: Am 2001 No 34, Sch 6.3 [1].
7 Conferral of functions and powers on ASIC
7 Conferral of functions and powers on ASIC
7 Conferral of functions and powers on ASIC
(1) ASIC has the functions and powers conferred or expressed to be conferred on it by or under this Act.
(2) ASIC has power to do acts in New South Wales in the performance or exercise of any function or power conferred or expressed to be conferred on ASIC by or under a law of another jurisdiction corresponding to this Act.
(3) Without limiting the operation of section 31 of the Interpretation Act 1987, this section does not purport to impose a duty on ASIC to perform any function or exercise any power conferred or expressed to be conferred on it by or under this Act if the imposition of the duty would be beyond the legislative power of the Parliament of the State.
s 7: Am 2001 No 34, Sch 6.3 [2].
Part 4 Authorised deposit-taking institutions and life insurance companies: transfer of business
Part 4 Authorised deposit-taking institutions and life insurance companies: transfer of business
Part 4 Authorised deposit-taking institutions and life insurance companies: transfer of business
8 Words defined in FS(TB) Act
8 Words defined in FS(TB) Act
8 Words defined in FS(TB) Act
Unless the contrary intention appears, words defined in the FS(TB) Act have the same respective meanings in this Part.
9 Authorised APRA officer
9 Authorised APRA officer
9 Authorised APRA officer
(1) APRA may, in writing, authorise a person who is an APRA board member, or an APRA staff member, to perform or exercise the functions or powers of an authorised APRA officer under a particular provision of this Part.
(2) The functions and powers necessary for the purposes of this section are conferred on APRA.
10 Voluntary transfers
10 Voluntary transfers
10 Voluntary transfers
(1) The purpose of this section is to facilitate voluntary transfers of business under Part 3 of the FS(TB) Act for regulated bodies.
(2) This section applies when a certificate of transfer issued under section 18 of the FS(TB) Act comes into force under Division 3 of Part 3 of that Act.
(3) The receiving body is taken to be the successor in law to the transferring body, to the extent of the transfer.
(4) In particular:
(a) if the transfer is a total transfer, all the assets and liabilities of the transferring body become respectively the assets and liabilities of the receiving body without any transfer, conveyance or assignment, and
(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body included in the list of assets and liabilities specified in the statement of detail become respectively assets and liabilities of the receiving 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 transferring body apply to the receiving body.
(5) If there is an approved section 20 statement in relation to the transfer that specifies:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with the statement, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
11 Compulsory transfers
11 Compulsory transfers
11 Compulsory transfers
(1) The purpose of this section is to facilitate compulsory transfers of business under Part 4 of the FS(TB) Act for regulated bodies.
(2) This section applies when a certificate of transfer issued under section 33 of the FS(TB) Act comes into force under Division 3 of Part 4 of that Act.
(3) The receiving body is taken to be the successor in law to the transferring body, to the extent of the transfer.
(4) In particular:
(a) if the transfer is a total transfer, all the assets and liabilities of the transferring body become respectively the assets and liabilities of the receiving body without any transfer, conveyance or assignment, and
(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body included in the list, referred to in section 33 (2) (c) of the FS(TB) Act, included in, or attached to, the certificate of transfer become respectively assets and liabilities of the receiving 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 transferring body apply to the receiving body.
(5) If the certificate of transfer includes provisions of a kind referred to in section 33 (3) of the FS(TB) Act specifying:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with those provisions, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
(6) If there is an approved section 30 statement in relation to the transfer that specifies:
(a) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with the statement, or
(b) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.
12 Certificates evidencing operation of Part
12 Certificates evidencing operation of Part
12 Certificates evidencing operation of Part
(1) An authorised APRA officer may, by a certificate in writing signed by the officer, certify any matter in relation to the operation or effect of this Part, and, in particular, may certify that:
(a) a particular asset of a transferring body has become a transferred asset of a receiving body, or
(b) a particular liability of a transferring body has become a transferred liability of a receiving body.
(2) For all purposes and in all proceedings, a certificate under subsection (1) is evidence of the matters certified.
13 Certificates in relation to land and interests in land
13 Certificates in relation to land and interests in land
13 Certificates in relation to land and interests in land
If:
(a) a receiving body becomes, under this Part, the owner of land, or of an interest in land, that is situated in New South Wales, and
(b) there is lodged with the Registrar-General a certificate that:
(i) is signed by an authorised APRA officer, and
(ii) identifies the land or interest, and
(iii) states that the receiving body has, under this Part, become the owner of that land or interest,
the Registrar-General may:
(c) register or record the matter in the same manner as dealings in land or interests in land of that kind are registered or recorded, and
(d) deal with, and give effect to, the certificate.
14 Certificates in relation to other assets
14 Certificates in relation to other assets
14 Certificates in relation to other assets
(1) If:
(a) an asset (other than land or an interest in land) becomes, under this Part, an asset of a receiving body, and
(b) there is lodged with the person or authority who has, under the law, responsibility for keeping a register or record in respect of assets of that kind a certificate that:
(i) is signed by an authorised APRA officer, and
(ii) identifies the asset, and
(iii) states that the a
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