Financial Sector Reform (Victoria) Act 1999

This Act gives statutory effect in Victoria to the Commonwealth-led financial sector restructuring that converted Victorian building societies, credit unions and friendly societies from State-regulated bodies into companies regulated under Commonwealth law, and it provides the transitional machinery to move supervisory functions, staff, assets, liabilities, and enforcement powers to the relevant Commonwealth regulators (APRA and ASIC). The Act operates mainly by (a) treating listed “transferring financial institutions” as companies under the Corporations Law on the transfer date (s 5); (b) preserving and giving effect to business transfers and business-transfer certificates issued under the Commonwealth Financial Sector (Business Transfer and Group Restructure) Act 1999 (the FS(BTGR) Act) for both voluntary and compulsory transfers (Part 4, ss 8-16, and in particular ss 10-11); (c) conferring the necessary functions, powers and enforcement powers on APRA and ASIC so they can act in place of the former State authorities (ss 6-7, 42-46); (d) establishing an Industry Supervision Fund and rules for its funding and expenditure (Part 5, ss 17-18); and (e) repealing and winding up the existing State supervisory framework and bodies, including repeal of the Building Societies Act 1986 and significant repeals in the Financial Institutions (Victoria) Act 1992 and Friendly Societies (Victoria) Act 1996 (s 19, s 20), together with detailed transitional and preservation measures (Part 6).

Mechanically, the Act does not create new legal entities when societies become companies: s 5(3) expressly provides that registration under the Corporations Law does not create a new legal entity. Instead the Act treats each transferring institution as a continued entity under company law. For transfers of business under the FS(BTGR) Act the Act makes the receiving body “successor in law” to the transferring body to the extent of the transfer and gives effect to asset and liability transfers without conveyance, assignment or transfer (ss 10(3)-(4), 11(3)-(4)). The Act provides certificates signed by an authorised APRA officer as conclusive evidence (s 12(1)-(2); s 15) for effecting registrations and changes in registers including land title (s 13) and other asset registers (s 14). It also preserves the ability to investigate and prosecute offences arising under the former Codes, and allows APRA and ASIC to continue or commence prosecutions in place of the State authorities (ss 29-31, 40-41, 30, 41).

Version No. 022

Financial Sector Reform (Victoria) Act 1999

No. 37 of 1999

Version incorporating amendments as at
1 August 2015

table of provisions

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 2

4 Crown is bound 5

Part 2—Registration of certain entities as companies 6

5 Transferring financial institutions 6

Part 3—Conferral of functions and powers on APRA and ASIC 7

6 Conferral of functions and powers on APRA 7

7 Conferral of functions and powers on ASIC 7

Part 4—Authorised deposit taking institutions and life insurance companies: transfer of business 9

8 Words defined in FS(BTGR) Act 9

9 Authorised APRA officer 9

10 Voluntary transfers 9

11 Compulsory transfers 10

12 Certificates evidencing operation of Part 12

13 Interests in land 12

14 Certificates in relation to other assets 13

15 Documents purporting to be certificates 14

16 Relationship of Part with other laws 14

Part 5—Industry Supervision Fund 15

17 Industry Supervision Fund 15

18 Financial statements of Industry Supervision Fund 16

Part 6—Repeals and transitional 17

Division 1—Repeals 17

19 Repeals on transfer date 17

20 Repeal of remaining provisions 17

Division 2—Provisions relating to AFIC 18

Subdivision 1—AFIC to continue 18

21 Continuation of AFIC for certain purposes 18

22 Delegation of AFIC's powers 18

Subdivision 2—Provisions about AFIC's staff 18

23 Definition 18

24 Transfer of staff to APRA under transfer agreement 19

25 Effect of transfer under section 24 or of employees of AFIC becoming appointed to the Australian Public Service 19

26 Statement of accrued benefits etc. 20

Subdivision 3—Information may be given to APRA or ASIC 20

27 Giving of information 20

Subdivision 4—Transfer of AFIC's assets and liabilities 21

28 Transfer of assets and liabilities 21

Subdivision 5—Proceedings involving AFIC 21

29 Continuation and preservation of certain civil proceedings involving AFIC 21

30 Continuation of certain offence proceedings 22

Division 3—Provisions relating to VicFIC 22

Subdivision 1—General 22

31 Supervision Fund 22

32 Credit Unions Contingency Fund 23

33 Audit of funds 24

Subdivision 2—Provisions about VicFIC's staff 24

34 Transfer of staff to APRA under transfer agreement 24

35 Effect of transfer to APRA or APS 25

36 Statement of accrued benefits etc 25

Subdivision 3—Information may be given to APRA and ASIC 26

37 Giving of information 26

Subdivision 4—Transfer of VicFIC's assets and liabilities 26

38 Transfer of assets and liabilities 26

39 Transfer of assets and liabilities relating to co-operative housing societies 27

Subdivision 5—Proceedings involving VicFIC 27

40 Continuation and preservation of civil proceedings involving VicFIC 27

41 Continuation of certain offence proceedings 28

Division 4—APRA's and ASIC's functions and powers under Codes 28

42 Conferral of functions and powers relating to financial institutions and friendly societies 28

43 AFIC Code provisions 29

44 Financial Institutions Code provisions 30

45 Friendly Societies Code provisions 32

46 Conferral of functions and powers 34

Division 5—Miscellaneous 34

47 Dormant accounts 34

48 Withdrawable shares in building societies 35

49 Matters in relation to dissolved or deregistered societies 35

50 Mergers and transfers of engagements commenced under Financial Institutions (Victoria) Code 40

51 Mergers and transfers of engagements commenced under Friendly Societies (Victoria) Code 42

52 Australian Financial Institutions Appeals Tribunal 45

53 Funds of Committees 46

Division 6—State taxes 46

54 Exemption from State taxes 46

Division 7—References to financial institutions and friendly societies 46

55 Building societies and credit unions 46

56 Friendly societies 47

Division 8—Regulations 47

57 Regulations 47

Endnotes 49

1 General information 49

2 Table of Amendments 51

3 Amendments Not in Operation 53

4 Explanatory details 54

Version No. 022

Financial Sector Reform (Victoria) Act 1999

No. 37 of 1999

Version incorporating amendments as at
1 August 2015

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1 Purpose

The main purposes of this Act are—

(a) to facilitate the registration of building societies, credit unions and friendly societies and related bodies as companies under the Corporations Law in accordance with amendments made by the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth; and

(b) to enact transitional and ancillary provisions; and

2 Commencement

(1) This Part, subdivisions 2, 3 and 4 of Division 2 of Part 6, subdivisions 1, 2, 3 and 4 of Division 3 of Part 6 and sections 47, 48 and 57 come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act (including the items in the Schedules) come into operation on a day or days to be proclaimed, not being a day or days before the transfer date within the meaning of section 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth.

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 (Victoria) Code;

AFIC (Victoria) Code means the provisions applying before the transfer date because of section 5 of the Financial Institutions (Victoria) Act 1992 and includes the AFIC (Victoria) Regulations;

AFIC (Victoria) Regulations means the provisions applying before the transfer date because of section 6 of the Financial Institutions (Victoria) Act 1992;

AFIC Regulations means the AFIC (Victoria) Regulations;

APRA means the Australian Prudential Regulation Authority;

APRA Act means the Australian Prudential Regulation Authority Act 1998 of the Commonwealth;

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, includes a person engaged by AFIC 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 of an offence; or

Financial Institutions Code means the Financial Institutions (Victoria) Code;

financial institutions legislation has the same meaning as in section 8 of the AFIC Code;

Financial Institutions (Victoria) Code means the provisions applying before the transfer date because of section 8 of the Financial Institutions (Victoria) Act 1992 and includes the Financial Institutions (Victoria) Regulations;

Financial Institutions (Victoria) Regulations means the provisions applying before the transfer date because of section 9 of the Financial Institutions (Victoria) Act 1992;

Financial Institutions Regulations means the Financial Institutions (Victoria) Regulations;

fiscal bodies legislation has the same meaning as in section 3 of the AFIC Code;

Friendly Societies Code means the Friendly Societies (Victoria) Code;

Friendly Societies (Victoria) Code means the provisions applying before the transfer date because of section 5 of the Friendly Societies (Victoria) Act 1996 and includes the Friendly Societies (Victoria) Regulations;

Friendly Societies (Victoria) Regulations means the provisions applying before the transfer date because of section 6 of the Friendly Societies (Victoria) Act 1996;

FSR Act means the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth;

S. 3 def. of FS(TB) Act substituted as FS(BTGR) Act by No. 38/2012 s. 26.

FS(BTGR) Act means the Financial Sector (Business Transfer and Group Restructure) Act 1999 of the Commonwealth;

relevant Commonwealth body means APRA or ASIC;

society means an entity that, before the transfer date, was a society under the Financial Institutions Code;

SSA means State Supervisory Authority;

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;

VicFIC means the Victorian Financial Institutions Commission.

4 Crown is bound

(1) This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.

Part 2—Registration of certain entities as companies

5 Transferring financial institutions

(1) On the transfer date, each transferring financial institution of this jurisdiction is taken, in accordance with Schedule 4 of the Corporations Law of Victoria[1], 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 Victoria[2] 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 of the Corporations Law[3].

Part 3—Conferral of functions and powers on APRA and ASIC

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 Victoria 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.

S. 6(3) inserted by No. 44/2001 s. 3(Sch. item 44.1).

(3) Without limiting the operation of section 6 of the Interpretation of Legislation Act 1984, this section does not purport to impose a duty on APRA to perform any functions or exercise any powers 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.

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 Victoria 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.

S. 7(3) inserted by No. 44/2001 s. 3(Sch. item 44.2).

(3) Without limiting the operation of section 6 of the Interpretation of Legislation Act 1984, this section does not purport to impose a duty on ASIC to perform any functions or exercise any powers 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.

Part 4—Authorised deposit taking institutions and life insurance companies: transfer of business

S. 8 (Heading) amended by No. 38/2012 s. 27(1).

8 Words defined in FS(BTGR) Act

S. 8
amended by No. 38/2012 s. 27(2).

Unless the contrary intention appears, words defined in the FS(BTGR) Act have the same respective meanings in this Part.

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

S. 10(1)
amended by No. 38/2012 s. 28.

(1) The purpose of this section is to facilitate voluntary transfers of business under Part 3 of the FS(BTGR) Act for regulated bodies.

S. 10(2)
amended by No. 38/2012 s. 28.

(2) This section applies when a certificate of transfer issued under section 18 of the FS(BTGR) 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 of 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

S. 11(1)
amended by No. 38/2012 s. 29.

(1) The purpose of this section is to facilitate compulsory transfers of business under Part 4 of the FS(BTGR) Act for regulated bodies.

S. 11(2)
amended by No. 38/2012 s. 29.

(2) This section applies when a certificate of transfer issued under section 33 of the FS(BTGR) 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 of the transferring body, to the extent of the transfer.

(4) In particular—

S. 11(4)(b)
amended by No. 38/2012 s. 29.

(b) if the transfer is a partial transfer, all the assets and liabilities of the transferring body that are included in the list, referred to in section 33(2)(c) of the FS(BTGR) 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.

S. 11(5)
amended by No. 38/2012 s. 29.

(5) If the certificate of transfer includes provisions of a kind referred to in section 33(3) of the FS(BTGR) 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

(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

12 Certificates evidencing operation of Part

(1) An authorised APRA officer may, by a certificate in writing signed by the officer, certify anything in relation to the 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.

S. 13 amended by No. 74/2000 s. 3(Sch. 1 item 47.1).

13 Interests in land

(1) Without prejudice to the generality of this Part and despite anything to the contrary in any other Act or law, if, immediately before the date on which an asset of a transferring body becomes a transferred asset of a receiving body, the transferring body is the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date—

(a) the receiving body is to be taken to be the registered proprietor of that interest in land; and

(b) the receiving body has the same rights and remedies in respect of that interest as the transferring body had.

(2) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument and certificate of an authorised APRA officer, must make any amendments in the Register that are necessary because of the operation of this Part.

14 Certificates in relation to other assets

(1) This section applies 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 entity who has, under the law, responsibility for keeping a register or record relating to assets of that kind a certificate that—

(i) is signed by an authorised APRA officer; and

(ii) identifies the asset; and

(iii) states the asset has, under this Part, become an asset of the receiving body.

(2) The entity may—

(a) register or record the matter in the same manner as transactions in relation to assets of that kind are registered or recorded; and

(b) deal with, and give effect to, the certificate.

(3) This section does not affect the operation of the Corporations Law[4].

15 Documents purporting to be certificates

A document purporting to be a certificate mentioned in section 13 or 14 is taken to be a certificate of that type unless the contrary is established.

16 Relationship of Part with other laws

(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

(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.

Part 5—Industry Supervision Fund

17 Industry Supervision Fund

(1) There shall be established in the Trust Fund an account to be known as the "Industry Supervision Fund".

(2) There shall be paid into the Industry Supervision Fund—

(a) out of the Supervision Fund under the Financial Institutions (Victoria) Act 1992 at such time or times as are determined by the Minister—

(i) such part of the amount standing to the credit of that Fund as VicFIC determines represents the amount of supervision levy paid into that Fund under the Co-operative Housing Societies Act 1958 before the commencement of item 8 of Part 1 of Schedule 2 and unexpended; and

(ii) such part of the amount standing to the credit of that Fund as the Minister determines but not including any amounts received as supervision levy under the Financial Institutions (Victoria) Act 1992, the Friendly Societies Act 1986, the Friendly Societies Code or the Co-operative Housing Societies Act 1958;

(b) the amounts received as supervision levy under the Co-operative Housing Societies Act 1958 on or after the commencement of item 8 of Part 1 of Schedule 2;

(c) any income from the investment of money standing to the credit of the Industry Supervision Fund and the proceeds of sale of any investment;

(d) any other money approved by the Treasurer.

(3) There shall be paid out of the Industry Supervision Fund—

S. 17(3)(a) amended by Nos 74/2000 s. 3(Sch. 1 item 47.2), 17/2001 s. 5.

(a) expenses incurred in the administration of the Trustee Companies Act 1984, the Co-operative Housing Societies Act 1958 and the Industrial and Provident Societies Act 1958;

(b) expenses incurred in administering the Industry Supervision Fund;

(4) Money standing to the credit of the Industry Supervision Fund may be invested in any manner in which trust funds may be invested under the Trustee Act 1958.

18 Financial statements of Industry Supervision Fund

(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared financial statements of the Industry Supervision Fund for that year.

(2) The Minister must cause copies of the financial statements to be available for inspection by the public during ordinary working hours.

(3) This section is in addition to the requirements of Part 7 of the Financial Management Act 1994.

Part 6—Repeals and transitional

Division 1—Repeals

19 Repeals on transfer date

(1) The Building Societies Act 1986 is repealed.

(2) Parts 2, 3, 4 and 5, sections 25, 26, 42, 43, 43A, 48 and 48A and Parts 7, 8, 9, 10, 11, 12 and 14 of the Financial Institutions (Victoria) Act 1992 are repealed.

(3) Parts 2, 3 and 4, sections 14, 15, 16, 17 and 18 and Parts 6, 7, 8, 9 and 10 and Schedule 1 of the Friendly Societies (Victoria) Act 1996 are repealed.

20 Repeal of remaining provisions

(1) The Financial Institutions (Victoria) Act 1992 is repealed.

(2) The Friendly Societies (Victoria) Act 1996 is repealed.

(3) VicFIC is dissolved and the members go out of office.

(4) The amount standing to the credit of the Supervision Fund under the Financial Institutions (Victoria) Act 1992 immediately before the commencement of this section forms part of the Consolidated Fund.

Division 2—Provisions relating to AFIC

Subdivision 1—AFIC to continue

21 Continuation of AFIC for certain purposes

(1) This section applies despite—

(a) the repeal of the AFIC Act by the Financial Sector Reform (Queensland) Act 1999 of Queensland; and

(b) the repeal of the Financial Institutions (Victoria) Act 1992.

(2) AFIC and its board continue in existence, but only for the following purposes—

(a) to give effect to matters relating to the transfer, under a law of the Commonwealth or of another State or a Territory or this Act, of any of its functions under the fiscal bodies legislation to APRA or ASIC;

(b) to prepare reports and financial statements.

22 Delegation of AFIC's powers

(1) AFIC's board may delegate AFIC's powers to an appropriately qualified employee of AFIC.

(2) In subsection (1), appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.

Subdivision 2—Provisions about AFIC's staff

23 Definition

In this subdivision—

employees, of AFIC, includes the executive director of AFIC.

24 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 of 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.

25 Effect of transfer under section 24 or of employees of AFIC becoming appointed to the Australian Public Service

(1) This section applies if a person becomes an APRA employee under section 24.

(2) This section also applies if a person—

(a) 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.

26 Statement of accrued benefits etc.

Before an employee of AFIC becomes an APRA employee under section 24 or is appointed to the Australian Public Service as mentioned in section 25(2), AFIC must give the person, and APRA or the Commonwealth Public Service Commissioner, a written statement stating 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.

Subdivision 3—Information may be given to APRA or ASIC

27 Giving of information

(1) This section applies to—

(a) a director of AFIC's board; and

(b) an employee of AFIC; 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.

Subdivision 4—Transfer of AFIC's assets and liabilities

28 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 of 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.

Subdivision 5—Proceedings involving AFIC

29 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 the date be brought against AFIC, or but for the commencement of section 19 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.

30 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 was not completed before the 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 VicFIC

Subdivision 1—General

31 Supervision Fund

(1) Amounts standing to the credit of the Consultancy Services Fund established under section 43A of the Financial Institutions (Victoria) Act 1992 immediately before the transfer date form part of the Supervision Fund established under section 41 of that Act.

(2) VicFIC must pay out of the Supervision Fund at such time or times as VicFIC determines—

(a) to APRA—

(i) such amount in respect of liabilities relating to leave or other entitlements of employees of VicFIC who become employees of APRA, being liabilities existing immediately before the date on which the relevant employees become employees of APRA, as is determined by VicFIC; and

(ii) such amount in respect of any other liabilities of VicFIC that, by reason of this Act, become liabilities of APRA, as is determined by VicFIC;

(b) to ASIC—

(i) such amount in respect of liabilities relating to leave or other entitlements of employees of VicFIC who become employees of ASIC, being liabilities existing immediately before the date on which the relevant employees become employees of ASIC, as is determined by VicFIC; and

(ii) such amount in respect of any other liabilities of VicFIC that, by reason of this Act, become liabilities of ASIC, as is determined by VicFIC;

(c) to each building society, credit union and friendly society, an amount determined by VicFIC as representing the amount of supervision levy paid by the building society, credit union or friendly society into the supervision fund and unexpended.

32 Credit Unions Contingency Fund

(1) On the day before the transfer date, VicFIC 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) Immediately after VicFIC complies with subsection (1) it must pay from the Credit Unions Contingency Fund to each credit union the amount standing to the credit union's credit in the fund.

(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.

33 Audit of funds

S. 33(1) amended by No. 53/1999 s. 26(Sch. item 11).

(1) VicFIC must cause the financial statements of VicFIC to be audited by the Auditor-General.

(2) The Audit Act 1994 applies to an audit under subsection (1) as if it were an audit under Part 3 of that Act.

Subdivision 2—Provisions about VicFIC's staff

34 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 of the FSR Act that determines, or provides for determining, that particular employees of VicFIC 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.

35 Effect of transfer to APRA or APS

(1) This section applies—

(a) if a person becomes an APRA employee under section 34; 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 an employee of VicFIC.

(2) The employee's employment with VicFIC immediately ends.

(3) A person is not entitled to receive any payment or other benefit because the person's appointment or employment ends under this section.

36 Statement of accrued benefits etc

Before an employee of VicFIC becomes an APRA employee under section 34 or is appointed to the Australian Public Service as mentioned in section 35(1)(b)(i), VicFIC must give the person, and APRA or the Commonwealth Public Service Commissioner, a written statement stating particulars of—

(a) the person's remuneration; and

(b) the person's accrued benefits and entitlements in respect of service with VicFIC and prior service recognised by VicFIC;

Subdivision 3—Information may be given to APRA and ASIC

37 Giving of information

(1) This section applies to—

(a) a member of VicFIC; and

(b) an employee of VicFIC;

(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 47 of the Financial Institutions (Victoria) Act 1992 and section 410 of the Financial Institutions Code or section 477 of the Friendly Societies Code.

Subdivision 4—Transfer of VicFIC's assets and liabilities

38 Transfer of assets and liabilities

(1) The Minister may enter into a transfer agreement under Division 3 of Part 1 of Schedule 8 of the FSR Act connected with the transfer of VicFIC's assets or liabilities to APRA or ASIC, other than assets or liabilities relating to co-operative housing societies.

(2) The transfer agreement has effect according to its terms.

39 Transfer of assets and liabilities relating to co-operative housing societies

(1) VicFIC may enter into an agreement with the Registrar connected with the transfer to the State of VicFIC's assets or liabilities relating to co-operative housing societies.

(2) The agreement has effect according to its terms.

Subdivision 5—Proceedings involving VicFIC

40 Continuation and preservation of civil proceedings involving VicFIC

(1) For the purposes of a proceeding commenced before the transfer date to which VicFIC was a party immediately before that date, the State is substituted for VicFIC 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 the date, be brought against VicFIC, or but for the commencement of section 20, could have been brought against VicFIC, 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 VicFIC is admissible for or against the State.

(4) This section does not apply to a proceeding for an offence.

41 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 VicFIC, or a person authorised in writing by VicFIC, that commenced before the transfer date but that was not completed before the date.

(2) On and after the transfer date, the proceeding may continue to be prosecuted by either APRA or ASIC in place of VicFIC or the person authorised by VicFIC and APRA or ASIC may be substituted for VicFIC 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

42 Conferral of functions and powers relating to financial institutions 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 VicFIC 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—

(a) AFIC Code;

(b) Financial Institutions Code;

43 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 the 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 19 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;

(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[5] 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 42.

44 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 for that subdivision and those Parts and 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 19 had not commenced.

(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[6] 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 reference to an entity that on the transfer date is a company under the Corporations Law[7] 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 42.

45 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, Division or 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 19 had not commenced.

(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;

(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[8] 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 42.

46 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

47 Dormant accounts

(1) This section applies if—

(a) before the transfer date a society transferred an amount from a person's deposit account with a society to another account under section 138A(4)(c) of the Financial Institutions Code; and

(b) immediately before the transfer date the amount has 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.

48 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 on 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 deposits 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 VicFIC.

(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[9]) 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.

49 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—

(a) the Financial Institutions Code; or

(b) the Friendly Societies Code; or

(d) the Friendly Societies Act 1986 or a corresponding previous enactment; or

(e) the Co-operation Act 1981 or a corresponding previous enactment.

(2) If property vested in ASIC under section 38 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.

S. 49(3) amended by No. 44/2001 s. 3(Sch. item 44.3).

(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 receives to—

(i) defray expenses incurred by ASIC in exercising its powers in relation to the society; and

(ii) make payments authorised by subsection (4)—

and must deal with the rest (if any) under Part 9.7 of the Corporations Act as applying under this section.

S. 49(3A) inserted by No. 44/2001 s. 3(Sch. item 44.4).

(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 as if the society had been a company.

S. 49(3B) inserted by No. 44/2001 s. 3(Sch. item 44.4).

(3B) For the purposes of subsection (3A), Part 3 of the Corporations (Ancillary Provisions) Act 2001 has effect as if that Part did not contain sections 16(1)(b) and 17.

Note

Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act 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.

(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 38; and

(b) a record of its dealings with that property; 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;

(b) a building society under the Building Societies Act 1986 or a corresponding previous enactment; or

(d) a credit society under the Co-operation Act 1981 or a corresponding previous enactment.

50 Mergers and transfers of engagements commenced under Financial Institutions (Victoria) Code

(1) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Financial Institutions (Victoria) 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 (Victoria) 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 19 had not commenced.

(3) For the purpose of the application mentioned in subsection (2)—

(a) a reference in the Financial Institutions (Victoria) Code to the SSA is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Financial Institutions (Victoria) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body; and

(4) For the purposes of this section a transfer of engagements was commenced before the transfer date under Part 7 of the Financial Institutions (Victoria) 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, VicFIC gave a direction, under the Financial Institutions (Victoria) 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 (Victoria) 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 (Victoria) Code; or

(b) in relation to a foreign society, the law of another participating State corresponding to the Financial Institutions (Victoria) Code;

relevant SSA means—

(a) in relation to a society, VicFIC; 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 (Victoria) Code.

51 Mergers and transfers of engagements commenced under Friendly Societies (Victoria) Code

(1) This section applies if a transfer of engagements or merger commenced before the transfer date under Part 7 of the Friendly Societies (Victoria) 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 (Victoria) 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 19 had not commenced.

(3) For the purposes of the application mentioned in subsection (2)—

(a) a reference in the Friendly Societies (Victoria) Code to the SSA is taken to be a reference to either relevant Commonwealth body; and

(b) a reference in the Friendly Societies (Victoria) Code to the SSA of a participating State is taken to be a reference to either relevant Commonwealth body; and

(4) For the purposes of this section a transfer of engagements was commenced before the transfer date under Part 7 of the Friendly Societies (Victoria) 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, VicFIC gave a direction, under the Friendly Societies (Victoria) Code, requiring the transfer.

(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 (Victoria) 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 (Victoria) Code; or

(b) in relation to a foreign society, the law of another participating State corresponding to the Friendly Societies (Victoria) Code;

relevant SSA means—

(a) in relation to a society, VicFIC; 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 (Victoria) Code.

52 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 Appeal 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.

53 Funds of Committees

(1) On the transfer date, any money held by a former Committee forms part of the Industry Supervision Fund under Part 5.

(2) In this section—

former committee means—

(a) the Credit Unions Advisory Committee established by Part 7 of the Financial Institutions (Victoria) Act 1992;

(b) the Friendly Societies Advisory Committee under Part 6 of the Friendly Societies (Victoria) Act 1996;

Division 6—State taxes

54 Exemption from State taxes

(1) No stamp 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 financial institutions and friendly societies

55 Building societies and credit unions

Unless the contrary intention appears, a reference in an Act (other than this Act) or a legislative 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 within the meaning of the Banking Act 1959 of the Commonwealth.

56 Friendly societies

Unless the contrary intention appears, a reference in an Act (other than this Act) or a legislative instrument to a friendly society has effect on and after the transfer date as a reference to a body—

(a) 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—Regulations

57 Regulations

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

Pt 7 (Heading and s. 58) repealed by No. 28/2007 s. 3(Sch. item 25).

Sch. (Heading) repealed by No. 21/2015 s. 3(Sch. 1 item 21).

Schs 1, 2 repealed by No. 28/2007 s. 3(Sch. item 25).

Sch. 3 amended by No. 74/2000 s. 3(Sch. 1 item 47.3), repealed by No. 28/2007 s. 3(Sch. item 25).

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 22 April 1999

Legislative Council: 25 May 1999

The long title for the Bill for this Act was "A Bill to make provision for the reform of the financial sector, to amend and repeal the Financial Institutions (Victoria) Act 1992 and the Friendly Societies (Victoria) Act 1996 and to amend the Co-operative Housing Societies Act 1958 and certain other Acts and for other purposes."

The Financial Sector Reform (Victoria) Act 1999 was assented to on 8 June 1999 and came into operation as follows:

Part 1 (sections 1–4), Part 6 Division 2 Subdivisions 2–4 (sections 23–28), Part 6 Division 3 Subdivisions 1–4 (sections 31–39), sections 47, 48, 57 on 8 June 1999: section 2(1); rest of Act (except section 20, Schedule 1, Schedule 3 item 4) on 1 July 1999: Special Gazette (No. 97) 30 June 1999 page 2; section 20 on 1 November 2000: Government Gazette 19 October 2000 page 2521; Schedule 3 item 4 never proclaimed, repealed by No. 74/2000 section 3 (Schedule 1 item 47.3); Schedule 1 on 15 June 2001: Government Gazette 14 June 2001 page 1273.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Financial Sector Reform (Victoria) Act 1999 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Audit (Amendment) Act 1999, No. 53/1999

Assent Date:	14.12.99
Commencement Date:	S. 26(Sch. item 11) on 1.1.00: Government Gazette 23.12.99 p. 2764
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

Statute Law Revision Act 2000, No. 74/2000

Assent Date:	21.11.00
Commencement Date:	S. 3(Sch. 1 item 47) on 22.11.00: s. 2(1)
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

Benefit Associations (Repeal) Act 2001, No. 17/2001

Assent Date:	29.5.01
Commencement Date:	30.5.01: s. 2
Current State:	All of Act in operation

Corporations (Consequential Amendments) Act 2001, No. 44/2001

Assent Date:	27.6.01
Commencement Date:	S. 3(Sch. item 44) on 15.7.01: s. 2
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

Statute Law Revision Act 2007, No. 28/2007

Assent Date:	26.6.07
Commencement Date:	S. 3(Sch. item 25) on 27.6.07: s. 2(1)
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

Duties Amendment (Landholder) Act 2012, No. 38/2012

Assent Date:	27.6.12
Commencement Date:	Ss 26–29 on 1.7.12: s. 2
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

Statute Law Revision Act 2015, No. 21/2015

Assent Date:	1.8.15
Commencement Date:	S. 3(Sch. 1 item 21) on 1.8.15: s. 2(1)
Current State:	This information relates only to the provision/s amending the Financial Sector Reform (Victoria) Act 1999

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Amendments Not in Operation

Not updated for this publication.

4 Explanatory details

S. 5(1): See regulation 4 of the Corporations (Ancillary Provisions) Regulations 2001, S.R. No. 63/2001. ↑
S. 5(3): See note 1. ↑
S. 5(4): See note 1. ↑
S. 14(3): See note 1. ↑
S. 43(3)(b): See note 1. ↑
S. 44(3)(b): See note 1. ↑
S. 44(3)(c): See note 1. ↑
S. 45(3)(b): See note 1. ↑
S. 48(5) def. of building society: See note 1. ↑

1 Financial Sector Reform (Victoria) Act 1999

Version No. 022

Financial Sector Reform (Victoria) Act 1999

No. 37 of 1999

Version incorporating amendments as at
1 August 2015

table of provisions

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 2

4 Crown is bound 5

Part 2—Registration of certain entities as companies 6

5 Transferring financial institutions 6

Part 3—Conferral of functions and powers on APRA and ASIC 7

6 Conferral of functions and powers on APRA 7

7 Conferral of functions and powers on ASIC 7

Part 4—Authorised deposit taking institutions and life insurance companies: transfer of business 9

8 Words defined in FS(BTGR) Act 9

9 Authorised APRA officer 9

10 Voluntary transfers 9

11 Compulsory transfers 10

12 Certificates evidencing operation of Part 12

13 Interests in land 12

14 Certificates in relation to other assets 13

15 Documents purporting to be certificates 14

16 Relationship of Part with other laws 14

Part 5—Industry Supervision Fund 15

17 Industry Supervision Fund 15

18 Financial statements of Industry Supervision Fund 16

Part 6—Repeals and transitional 17

Division 1—Repeals 17

19 Repeals on transfer date 17

20 Repeal of remaining provisions 17

Division 2—Provisions relating to AFIC 18

Subdivision 1—AFIC to continue 18

21 Continuation of AFIC for certain purposes 18

22 Delegation of AFIC's powers 18

Subdivision 2—Provisions about AFIC's staff 18

23 Definition 18

24 Transfer of staff to APRA under transfer agreement 19

25 Effect of transfer under section 24 or of employees of AFIC becoming appointed to the Australian Public Service 19

26 Statement of accrued benefits etc. 20

Subdivision 3—Information may be given to APRA or ASIC 20

27 Giving of information 20

Subdivision 4—Transfer of AFIC's assets and liabilities 21

This Act uses several cross-referenced statutory concepts that determine its operation. Readers must track definitions and cross-jurisdictional links carefully because many operative terms are defined by reference to other instruments.

Transfer date. The transfer date is the pivotal temporal marker for almost all provisions. It is defined by reference to s 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth (the FSR Act) (s 3). Many operative effects take place “on the transfer date” (eg s 5, s 19, s 31).
Transferring financial institution / previous governing Code. The Act adopts the Schedule 4 definitions in the Corporations Law for “transferring financial institution” and “previous governing code” (s 5(4), s 3 defns). Those cross-references control which bodies are caught and which prior State Code regime applied to them immediately before the transfer date.
Corporations Law registration continuity. Section 5(1) takes each transferring institution to be registered as a company under the Corporations Law on the transfer date, under the same name as under the previous governing Code. Section 5(3) clarifies that registration does not create a new legal entity: continuity of legal identity is key.
Certificates and authorised APRA officer. Part 4 relies on authoritative certificates for the legal recognition of transfers and for effecting entries in public registers. APRA may authorise persons to act as “authorised APRA officer” for particular provisions (s 9). An authorised APRA officer can sign certificates that are evidence of transferred assets and liabilities (s 12). Documents purporting to be such certificates are presumed to be so unless the contrary is shown (s 15).
Successor-in-law effect for transfers. Sections 10(3) and 11(3) treat receiving bodies as successors in law of transferring bodies to the extent of transfers. The Act specifies that total transfers move all assets and liabilities without any transfer, conveyance or assignment, and partial transfers move listed assets and liabilities in the same manner (ss 10(4)(a)-(b), 11(4)(a)-(b)).
Land and registers. If a transferring body is the registered proprietor under the Transfer of Land Act 1958 immediately before the asset transfer, the receiving body is taken to be the registered proprietor on and after that date and the Registrar must make necessary amendments on production of any relevant certificate of title or instrument and an authorised APRA officer certificate (s 13(1)-(2)).
Conferral of functions and enforcement powers. APRA and ASIC are expressly given functions and powers under the Act (ss 6-7). The Act also gives APRA and ASIC the same enforcement powers AFIC and VicFIC had in relation to acts done before the transfer date, by applying relevant Code provisions “with all necessary changes” and substituting references to either relevant Commonwealth body (s 42-46, esp s 42(1)-(3)). For preserved Code offences, the Act allows those provisions to apply even after the repeal of the State Codes (see ss 43(1)-(3), 44(1)-(3), 45(1)-(3)).
Funds and financial continuity. The Industry Supervision Fund is established in the Trust Fund and receives specified amounts, including parts of VicFIC’s Supervision Fund and future supervision levies under the Co-operative Housing Societies Act 1958 (s 17). Payments out of the Industry Supervision Fund are authorised for administration expenses and for trustee company, co-operative housing and industrial/provident society administration (s 17(3)). VicFIC must account for and distribute specific retained earnings and contingency funds to credit unions and other bodies (ss 31-33).
Dissolution, substitution and preservation. The Act repeals the State supervisory Acts and dissolves VicFIC, while providing for limited continuations: AFIC exists only for certain purposes (s 21), proceedings involving AFIC and VicFIC are preserved or may be substituted against the State (ss 29-31, 40-41), and ASIC is given powers to deal with property previously vested in it or in societies whose registration was cancelled (s 49).
Staff transfers and accrued entitlements. The Act contemplates staff transfers to APRA under transfer agreements (ss 24, 34). Employers must give written statements of accrued benefits to staff and APRA or the Commonwealth Public Service Commissioner (ss 26, 36). The Act also states that staff gain APRA employment or APS appointment and that no separate payment is due because employment ends under those provisions (ss 25(5), 35(3)).
Statutory modification of references. For continuity of administration and prosecutions, the Act modifies references in the old Codes so that “SSA”, “AFIC” or other State references are read as references to “either relevant Commonwealth body”, and other necessary textual changes are prescribed in ss 43-45.

These concepts operate in combination. For example, transfers of business under the FS(BTGR) Act require a certificate under that Commonwealth Act to come into force, and then the Victorian Act treats the receiving body as successor in law and permits an authorised APRA officer to issue a certificate enabling registration changes in State registers (s 10, s 12, s 13, s 14). That co‑ordination of Commonwealth certificates with State registers is a structural design feature to effect rapid and effectively conclusive legal change at the State level.

The Act’s principal targets are Victorian building societies, credit unions and friendly societies that immediately before the transfer date were regulated under the State Codes. Section 5 operates directly on “transferring financial institutions of this jurisdiction,” treated as companies on the transfer date. The “society” definitions in s 3 and the cross-references to the relevant Codes determine which entities are affected.

Regulatory agencies. Two Commonwealth regulators are central: APRA and ASIC. Sections 6 and 7 confer functions and powers on APRA and ASIC respectively. Part 6 confers on APRA and ASIC the enforcement powers previously held by AFIC and VicFIC (s 42), and ss 43-45 preserve relevant Code provisions and allow APRA/ASIC to exercise them where necessary.

State agencies and Ministers. VicFIC (Victorian Financial Institutions Commission) is dissolved (s 20(3)) but remains relevant for specific transitional actions (eg distribution of funds under s 31; staff transfer arrangements ss 34-36). The Minister is given specific roles including determining payments into the Industry Supervision Fund (s 17(2)(a)(ii)) and administering the preparation and availability of financial statements for the Industry Supervision Fund (s 18). The Governor in Council may make regulations (s 57).

Employees and staff. Employees of AFIC and VicFIC are specifically affected. The Act provides mechanisms for staff to become APRA employees under transfer agreements (ss 24, 34) and for statements on accrued benefits to be provided (ss 26, 36). The Act also specifies that employees who transfer are not entitled to payments because their employment ends (s 25(5), s 35(3)); these are immediate financial consequences for staff.

Customers, depositors, members and investors. Holders of withdrawable shares in building societies are converted into depositors having an equivalent deposit with the society on the transfer date (s 48(1)-(3)), with voting or other rights preserved (s 48(2)). Dormant-account mechanics are reversed for amounts transferred to dormant accounts in certain circumstances,the Act treats such amounts as never having been classified as dormant (s 47). Credit unions have a direct financial distribution in relation to retained earnings under the Credit Unions Contingency Fund (s 32).

Creditors, sureties and counterparties. The Act transfers assets and liabilities to receiving bodies and provides successor-in-law status (ss 10-11). The Act expressly notes that transfers do not release sureties from obligations (s 16(2)(c)), and that property vested in ASIC remains subject to the liabilities imposed on the property and does not gain new exemptions simply because it is vested in ASIC (s 49(4)-(5)). That preserves creditor positions in many respects.

Land registries and registrars. The Transfer of Land Act 1958 regime is engaged by s 13: where a transferring body is registered proprietor immediately before the transferred asset becomes a transferred asset, the receiving body is to be taken as registered proprietor and the Registrar of Titles must make necessary amendments on production of relevant certificate(s) (s 13(1)-(2)). Agencies that maintain other asset registers are likewise implicated by s 14.

Committee and advisory bodies. Funds held by former advisory committees are transferred to the Industry Supervision Fund on the transfer date (s 53). The Australian Financial Institutions Appeals Tribunal ceases to exist on the transfer date and pending applications are taken to have been withdrawn (s 52).

Insurers and trustees. Sections 49(8)-(15) give ASIC power to act with respect to property of dissolved or deregistered societies, including continuing as trustee or applying to court for appointment of a new trustee and establishing a society as a company if the registration should not have been cancelled (s 49(2), (3), (9), (10)). Insurers may be required to pay amounts payable to societies under prior insurance contracts where liabilities existed prior to cancellation (s 49(8)).

Who pays. The financial impact is channelled through the Industry Supervision Fund and VicFIC’s Supervision Fund: money is paid into and out of the Industry Supervision Fund as prescribed in s 17 and payments are made by VicFIC from its Supervision Fund to APRA and ASIC in respect of employee entitlements and liabilities (s 31(2)(a)-(b)). The Act exempts from State stamp duty or other tax things effected under the Act (s 54(1)), but expressly excludes Part 4 from that exemption (s 54(2)), which affects who bears any duty on transfers effected under Part 4.

This Act creates a set of duties and rights for regulators, transferring entities, Ministers, VicFIC/AFIC staff, and third parties. Below are the principal legal obligations and entitlements, with the controlling sections.

Duties and powers of APRA and ASIC

APRA and ASIC are vested with the functions and powers the Act confers or expresses to confer on them (ss 6(1), 7(1)). They may carry out acts in Victoria to perform functions conferred under corresponding laws of other jurisdictions (ss 6(2), 7(2)).
APRA and ASIC receive enforcement powers in relation to actions under the former Codes and may exercise those powers to investigate and prosecute offences relating to acts done or omitted before the transfer date (s 42(1)-(3); ss 43-45 modify application of the Codes).
APRA is empowered to authorise APRA board members or staff to act as authorised APRA officers to perform functions or powers under Part 4 (s 9(1)-(2)).

Certificates, registration and registers

An authorised APRA officer may certify in writing matters relating to the effect of Part 4, including that a particular asset or liability has become a transferred asset or liability of the receiving body (s 12(1)). Certificates are evidence of the matters certified for all purposes and in all proceedings (s 12(2)). Documents purporting to be such certificates are presumed genuine unless the contrary is shown (s 15).
If a transferring body was the registered proprietor of land immediately before the transferred asset became a transferred asset of a receiving body, the receiving body is to be taken to be the registered proprietor and has the same rights and remedies (s 13(1)(a)-(b)). The Registrar of Titles must make necessary amendments on delivery of the relevant certificate of title and authorised APRA officer certificate (s 13(2)).
For other asset registers, lodging an authorised APRA officer certificate allows the registrar or record-keeper to register the matter as if it were a normal transaction and to give effect to the certificate (s 14(1)-(2)).

Successor-in-law status; effect on contracts and confidences

Receiving bodies are “successor in law” to transferring bodies to the extent of the transfer (ss 10(3), 11(3)). For total transfers, all assets and liabilities become those of the receiving body without transfer instruments; for partial transfers, listed assets and liabilities specified in the statement become assets and liabilities of the receiving body (ss 10(4), 11(4)).
The Part has effect despite anything in contracts, deeds, undertakings or other instruments (s 16(1)). But s 16(2) expressly states that nothing done under the Part places a receiving body, transferring body or another person in breach of contract, confidence, or State law (s 16(2)(a)-(b)) and does not release a surety from obligations (s 16(2)(c)). Subsection 16(3) deems necessary consents or advice to have been obtained, which has the effect of extinguishing technical contractual impediments to the transfer.

Funds and payments

The Industry Supervision Fund is established in the Trust Fund and must receive amounts described in s 17(2): parts of VicFIC’s Supervision Fund as determined by the Minister and VicFIC; supervision levies under the Co‑operative Housing Societies Act 1958 received after specified commencement; income from investments; and other money approved by the Treasurer (s 17(1)-(2)).
Payments may be made out of the Industry Supervision Fund for expenses incurred in administering the Trustee Companies Act 1984, Co-operative Housing Societies Act 1958 and Industrial and Provident Societies Act 1958, expenses of administering the Industry Supervision Fund, and other authorised amounts (s 17(3)).
VicFIC must pay out of its Supervision Fund to APRA and ASIC amounts determined by VicFIC in respect of employee entitlements and other liabilities that become liabilities of APRA or ASIC (s 31(2)(a)-(b)). VicFIC must also distribute retained earnings to credit unions and pay amounts from the Credit Unions Contingency Fund (s 32).

Staff and accrued entitlements

Transfer agreements may be entered into (by the Queensland Minister in relation to AFIC staff, s 24; by the Victorian Minister in relation to VicFIC staff, s 34) under the FSR Act schedules to provide for particular employees becoming APRA employees.
Before employees transfer, employers (AFIC, VicFIC) must provide written statements of accrued benefits, remuneration and length of service to the employee and APRA or the Commonwealth Public Service Commissioner (ss 26, 36).
A person who becomes an APRA employee under the transfer provisions or is appointed to the Australian Public Service will have their AFIC or VicFIC employment end immediately, and they are not entitled to any payment or benefit because of the termination under the section (ss 25(3)-(5), 35(2)-(3)).

Proceedings, prosecutions and evidence

For civil proceedings commenced before the transfer date where AFIC or VicFIC was a party, the State of Queensland (for AFIC) or the State (for VicFIC) is substituted as party (ss 29(2), 40(1)). For proceedings that could have been brought against AFIC or VicFIC after the transfer date, proceedings may be brought against the State instead (ss 29(3), 40(2)). Evidence admissible for or against AFIC or VicFIC is admissible for or against the substituted State (ss 29(4), 40(3)). These clauses preserve rights of parties and evidence continuity.
For prosecutions under certain Code provisions already commenced but not completed before the transfer date, APRA or ASIC may continue the prosecution and be substituted as the prosecuting body (ss 30, 41).

Statutory modifications and continuing application of Codes

Sections 43-45 detail how specified parts of AFIC, Financial Institutions and Friendly Societies Codes continue to apply after the transfer date in relation to acts before the repeal date, and they prescribe textual substitutions (for example, substituting references to AFIC or SSA with “either relevant Commonwealth body”) and omissions necessary for application (ss 43(3)(a)-(j), 44(3)(a)-(m), 45(3)(a)-(l)). Notably, where the preserved provisions create offences, their application is not limited to pre-transfer-date acts (ss 43(2), 44(2), 45(2)).

Regulations and further prescription

The Governor in Council may make regulations to prescribe matters required or necessary to give effect to the Act (s 57).

These duties and rights create a legal architecture for transferring entities to continue in lawful existence under company law, for regulators to step into enforcement roles, and for registers and funds to be updated and transferred. Several of these duties are administrative and evidence-based (eg certificate production, registrar amendments), while others create prosecutorial rights and obligations for APRA and ASIC.

The Act itself is not a penal code that introduces many novel fines or criminal offences with specified monetary penalties. Rather, it preserves and reassigns enforcement powers and existing offences that arise under the former State Codes, and it gives APRA and ASIC the authority to investigate and prosecute those offences where appropriate.

Continuation and substitution of enforcement authority

Section 42 gives each relevant Commonwealth body “the same enforcement powers relating to anything done or omitted to be done under a Code before the transfer date as AFIC or VicFIC had immediately before that date.” That definition in the Act incorporates enforcement powers as defined in s 3 of the Act (definition of “enforcement power” includes investigation of an offence, institution and carrying on of a prosecution, and matters relating to an investigation or prosecution).
Sections 43(1), 44(1) and 45(1) maintain that specified Parts of the AFIC Code, Financial Institutions Code, and Friendly Societies Code continue to apply in relation to pre-transfer acts “as if section 19 had not commenced.” Those sections preserve the operation of Code provisions that create offences and other enforcement mechanisms.
Importantly, where those Code provisions create offences, their preserved application is not limited to acts before the transfer date (see ss 43(2), 44(2), 45(2)). That means APRA or ASIC may rely on the preserved Code provisions as the basis for later prosecutions, subject to the textual modifications set out in ss 43-45.

Substitution in ongoing prosecutions and continuity of proceedings

The Act allows for substitution of parties in civil proceedings (ss 29(2), 40(1)) and for continuance of certain offence prosecutions: s 30 permits APRA or ASIC to continue prosecutions initiated by AFIC under specified provisions, and s 41 permits APRA or ASIC to continue prosecutions commenced by VicFIC under particular Code sections. These provisions confer prosecutorial standing on APRA/ASIC in place of AFIC/VicFIC for pending matters.

Evidence and conclusive certificates

Certificates signed by an authorised APRA officer under s 12(1) are evidence of matters certified “for all purposes and in all proceedings” (s 12(2)). Documents purporting to be such certificates are presumed to be such unless the contrary is established (s 15). This evidentiary status creates a strong procedural advantage for APRA/ASIC when effecting register changes, proving transfer of assets and liabilities, and defending the legal consequences of transfers. Practically, challenge to the correctness of a certificate requires affirmative proof to the contrary.

Limitations, Crown immunity and jurisdictional caveats

Section 4(2) expressly preserves Crown immunity from prosecution: “Nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.” That carries through to the enforcement regime and limits prosecutions involving Crown actions.
Sections 6(3) and 7(3) include caveats that the Act does not purport to impose duties on APRA or ASIC if doing so would be beyond the State Parliament’s legislative power. In other words, APRA/ASIC’s obligations under the Act are constrained to what the State can validly require.

Operational enforcement powers

The Act does not itself enumerate new investigative techniques or penalties; it transfers the pre-existing State Code powers and allows the Commonwealth regulators to exercise those powers under the modified Code text, and also relies on the authorities available to APRA and ASIC under their Commonwealth enabling Acts. For specifics on particular penalties and sanctions the preserved Code provisions must be examined; the Victorian Act preserves those provisions as applicable by APRA/ASIC.

Practical enforcement implications

The legal design gives APRA and ASIC prosecutorial capacity in relation to pre-transfer conduct and the continuing capacity to apply certain Code‑based offences beyond the transfer date. The evidentiary weight of APRA certificates for transfers and register changes (s 12(2), s 15) reduces factual disputes about legal title and ownership moving forward. The preservation of creditors’ rights and obligations (s 16(2)-(3)) limits arguments by counterparties trying to avoid obligations on grounds of the statutory transfer. At the same time, the Act expressly preserves surety obligations (s 16(2)(c)) and obliges ASIC to account for and manage property vested in it (s 49(6)), creating administrative compliance duties that, if breached, could result in secondary enforcement or civil claims under preserved law.

In summary, penalties and enforcement under this Act are chiefly about continuity and reallocation of existing enforcement powers and preserved offences from State to Commonwealth regulators, together with strong evidentiary tools (certificates) and substitution powers to continue prosecutions and civil proceedings. The Act itself does not create a broad new penal schedule; it imports and preserves pre‑existing enforcement frameworks subject to textual modifications.

This Act is explicitly designed to interlock with and modify the operation of several State and Commonwealth statutes. The Act includes cross-references and consequential arrangements that channel legal effect across jurisdictional regimes.

Corporations Law and Corporations Act

Section 5 treats transferring financial institutions as companies under the Corporations Law on the transfer date, and explicitly references Schedule 4 of the Corporations Law (s 5(1), (4)). Section 5(3) clarifies that registration under the Corporations Law does not create a new legal entity. The Act also contemplates the application of Part 9.7 of the Corporations Act (re receivership/insolvency/preservation of assets) to property dealt with by ASIC (s 49(3), (3A)), and references the Corporations (Ancillary Provisions) Act 2001 in s 49(3A).

Commonwealth FS(BTGR) Act

Part 4 depends on the FS(BTGR) Act: s 8 adopts definitions from the FS(BTGR) Act for Part 4; ss 10 and 11 apply when certificates of transfer issued under ss 18 and 33 of the FS(BTGR) Act come into force. The Victorian Act therefore relies on Commonwealth business-transfer certificates to trigger the State-law effects (successor status, asset transfers etc).

APRA and ASIC enabling statutes

The Act confers functions and powers on APRA and ASIC (ss 6-7). The operational exercise of those functions will therefore interface with APRA’s and ASIC’s Commonwealth Acts (APRA Act, ASIC Act), and ss 6(3) and 7(3) accept limits where the State Parliament cannot impose duties beyond its legislative power, which recognises the federal constitutional layering in these transfers.

Transfer of land and property law

Section 13 interacts directly with the Transfer of Land Act 1958: the receiving body is taken to be the registered proprietor and the Registrar of Titles must amend the register on production of the relevant certificate and titles (s 13(1)-(2)). For other asset registers, s 14 allows registrars to register transfers on the basis of an authorised APRA officer certificate.

Trust and trustee law; Trustee Act

Section 17(4) allows investment of Industry Supervision Fund moneys “in any manner in which trust funds may be invested under the Trustee Act 1958.” Section 17(3)(a) authorises payments tied to the Trustee Companies Act 1984 and other Acts; s 49(2) and (3) recognise ASIC’s trustee powers and duties.

Financial Management Act and Audit Act

Section 18 requires preparation and public availability of financial statements for the Industry Supervision Fund and notes that the section is in addition to Part 7 of the Financial Management Act 1994. Section 33(1) requires VicFIC to have its financial statements audited by the Auditor-General and the Audit Act 1994 is applied (s 33(2)).

State tax and stamp duty

Section 54 exempts matters effected by or done under this Act from stamp duty or other State taxes, but explicitly excludes Part 4 from that exemption (s 54(2)). Users must therefore check whether transfers effected under Part 4 are subject to stamp duty or other State taxes.

Statutory modification of Codes

Sections 43-45 preserve specific parts of the AFIC, Financial Institutions and Friendly Societies Codes and prescribe textual substitutions so that references to AFIC, SSA and other State terms are read as references to either relevant Commonwealth body, where necessary. Those sections effectively “import” parts of the Codes into post-repeal operation for dealings arising before the transfer date and, in specified cases, for later prosecutions.

Public service and employment law

Staff transfers are governed by transfer agreements under Division 2 of Part 1 of Schedule 8 of the FSR Act (ss 24, 34). The Public Service Act 1922 of the Commonwealth is referenced for appointments to the Australian Public Service (ss 25(2), 35(1)(b)).

Corporations (Ancillary Provisions) Act 2001

Section 49(3A) declares money received by ASIC on disposal of property that is not applied under s 49(3)(b) to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001. The Act then notes the effect of that for application of certain Corporations Act provisions (s 49(3B)).

Other State Acts

The Act amends and interacts with the Co‑operative Housing Societies Act 1958 (purpose clause s 1(c)), the Building Societies Act 1986 by repeal (s 19(1)), the Financial Institutions (Victoria) Act 1992 by partial and later full repeal (ss 19-20), and the Friendly Societies (Victoria) Act 1996 (ss 19-20). The Act therefore reshapes the State regulatory architecture and creates textual bridges to these displaced regimes.

Practical consequences of these interactions

The Act is designed to make Commonwealth certificates and APRA/ASIC actions effective in State registers and proceedings (ss 10-16, 12-15). It simultaneously preserves the content of prior State Code offences and enforcement powers so that APRA/ASIC can investigate and prosecute past wrongdoing under the preserved Code language (ss 42-45), while clarifying tax treatment and fund management in the State context (s 54, Part 5). The combination of evidentiary certificates, register obligations, fund disbursement rules and staff transfer arrangements is intended to reduce friction in the multi-leg transition from State Codes to Commonwealth company regulation.

The Act’s endnotes and table of amendments record its subsequent modifications and the key amending instruments up to the date shown in the version. The Act was originally assented to on 8 June 1999 and staggered into operation by proclamation (Endnotes). The principal amending instruments and effects recorded in the Act’s endnotes are the following.

Audit (Amendment) Act 1999 (No. 53/1999): Assented 14 December 1999, amendment commencement for s 33(1) on 1 January 2000. This amendment affects the auditing requirement for VicFIC financial statements (s 33).
Statute Law Revision Act 2000 (No. 74/2000): Assented 21 November 2000; certain repeals and editorial amendments commenced in November 2000. The endnotes list Schedule amendments by this Act.
Benefit Associations (Repeal) Act 2001 (No. 17/2001): Assented 29 May 2001, commenced 30 May 2001. The Table of Amendments notes this act modified the Financial Sector Reform (Victoria) Act 1999 in unspecified ways recorded in the table.
Corporations (Consequential Amendments) Act 2001 (No. 44/2001): Assented 27 June 2001; specific insertions into ss 6(3) and 7(3) were commenced on 15 July 2001. Those subsections were inserted to limit the imposition of duties on APRA/ASIC to what is within the State’s legislative power (see ss 6(3), 7(3) as annotated).
Statute Law Revision Act 2007 (No. 28/2007): Assented 26 June 2007; the Act repealed certain Parts and Schedules (Pt 7 and Schedules 1, 2 etc as noted in the body) and commenced 27 June 2007 for those items. The Endnotes indicate various headings and schedules were repealed by this Act.
Duties Amendment (Landholder) Act 2012 (No. 38/2012): Assented 27 June 2012; sections 26-29 commenced 1 July 2012. Those provisions amended ss 8-11 (heads and subsections) to update references in Part 4 and to adjust mechanics for voluntary and compulsory transfers, consistent with landholder duties reform.
Statute Law Revision Act 2015 (No. 21/2015): Assented 1 August 2015; certain style and minor amendments commenced on that date.

The Endnotes include specific commencement details for the original Act: Part 1 and certain transitional subdivisions and sections commenced on 8 June 1999; most of the Act commenced on 1 July 1999 (except s 20, Schedule 1 and Schedule 3 item 4 which had different proclamation dates), and section 20 commenced on 1 November 2000 (Endnotes, “The Financial Sector Reform (Victoria) Act 1999 was assented on 8 June 1999 and came into operation as follows...”).

The Act’s text has been amended over time primarily to (a) remove or simplify repealed headings and schedules (Statute Law Revision Acts), (b) update cross-references and accommodate Commonwealth consequential amendments to the Corporations regime (Corporations (Consequential Amendments) Act 2001), and (c) align duties and references with other State taxation and landholder reform statutes (Duties Amendment (Landholder) Act 2012). Amendments that affect operational detail include the insertion of subsections empowering APRA to act in specified ways and the adjustment of Voluntary/Compulsory transfer wording in ss 10-11 (amended by No. 38/2012 s 28-29).

Users should consult the Act’s endnotes and the Victorian legislation website for the current consolidated version and an up-to-date table of amendments, including any post-2015 changes not recorded in the provided text.

The Act as provided does not record judicial decisions or litigation outcomes. It does, however, contain several provisions designed to preserve and manage litigation relating to the pre-transfer regulatory regime. These are procedural and transitional mechanisms rather than substantive rulings.

Preservation and substitution of parties in proceedings

Sections 29 and 40 provide that for civil proceedings commenced before the transfer date to which AFIC or VicFIC were parties, the State of Queensland (for AFIC matters) or the State (for VicFIC matters) is substituted as the party. That preserves continuity of civil litigation and evidence (ss 29(2)-(5); 40(1)-(3)). The Act specifies those substitution rules do not apply to proceedings for offences (ss 29(5), 40(4)).

Continuation of offence prosecutions

Sections 30 and 41 permit APRA or ASIC to continue prosecutions started by AFIC or VicFIC respectively under specified Code provisions and to be substituted for AFIC or the authorised person, preserving the State’s ability to prosecute historically initiated enforcement matters. The functions and powers necessary to give effect to these substitutions are conferred on APRA and ASIC (ss 30(3), 41(3)).

No cases named in the Act

The Act and its endnotes do not name any judicial decisions or list litigation that has tested the Act’s provisions. Because the Act explicitly preserves rights and allows the substitution of prosecuting or civil parties, litigation could have arisen challenging the scope or correctness of certificates, the timing of transfers, or the effect of s 16(1) on contractual rights. The Act’s evidentiary provisions (s 12(2), s 15) and the deeming of consent (s 16(3)) would be focal points of any such litigation.

Practical note for litigators and counsel

The Act’s transitional litigation clauses mean that claims originally against AFIC or VicFIC will, in practice, be pursued against the State or by APRA/ASIC depending on the nature of the matter. Litigators should verify which entity is the correct party in ongoing matters and check whether substitution under ss 29, 30, 40, 41 has been effected. Where certificates issued under s 12 are relied upon as evidence of transfer allocations, parties should be alert to the evidentiary presumption in s 15 and prepare to meet the statutory standard for rebutting a certificate’s validity.

Because the provided text includes no case law, readers seeking litigation outcomes or judicial interpretation of the Act must search case law databases and law reports for decisions referring to the Financial Sector Reform (Victoria) Act 1999. This Act’s transitional mechanics and certificates have a clear potential for contested litigation, especially over title to assets, the correctness of certificates, and the application of preserved Code offences, but the Act itself contains the procedural controls and substitution mechanisms described above.

Practitioners need to watch several practical and legal pitfalls in applying the Act. These are not editorial judgements but concrete risks and compliance traps embedded in the statutory text.

Transfer date is the legal pivot

Almost every key effect occurs “on the transfer date” (see s 5, s 19, s 31, and many transitional clauses). If parties misunderstand or misapply the transfer date defined by the Commonwealth FSR Act (cross-referenced in s 3), they may mis-time registrations, filings, or transfers. The transfer date is a Commonwealth-defined event and not simply a Victorian proclamation.

Certificates carry strong evidentiary weight

An authorised APRA officer’s certificate is “evidence of the matters certified” for all purposes and in all proceedings (s 12(2)), and documents purporting to be such certificates are taken to be certificates unless the contrary is established (s 15). This creates a high evidentiary threshold to challenge transfers or registry entries effected by certificate. Challenging a certificate requires affirmative proof to the contrary.

Registration under Corporations Law does not create a new entity

Section 5(3) confirms continuity of legal identity when transferring institutions become companies. This continuity means antecedent liabilities, contracts and rights remain attached; stakeholders cannot rely on a technical “new entity” argument to avoid obligations.

Part 4 transfers are not tax-exempt

Section 54(1) grants a general exemption from State stamp duty or other tax for things done under the Act, but s 54(2) expressly states that subsection (1) does not apply to Part 4. That means transfers of assets and liabilities effected under Part 4 (ss 8-16) may attract State stamp duty or other taxes unless another exemption applies. Practitioners must check landholder duties and stamp duty consequences for transfers effected under Part 4.

No release of sureties or implied voiding of contracts

The Act expressly provides that nothing done under Part 4 places receiving or transferring bodies in breach of a contract or confidence, nor releases a surety from obligations (s 16(2)(a)-(c)). Parties may therefore not frustrate obligations by invoking statutory transfer; creditors’ recourse largely survives the statutory novation.

Registrar cooperation required, but administrator action needed

Section 13(2) requires the Registrar of Titles to make necessary amendments on production of relevant certificates, but obtaining the required authorised APRA officer certificates and any title deeds or instruments may produce administrative friction. Practitioners must follow the documentary procedure strictly; otherwise register amendments may be delayed.

Withdrawable shares conversion is subject to VicFIC standards

Section 48(1) converts withdrawable shares in building societies into deposits of equivalent amount and cancels the shares (s 48(3)). But s 48(4) conditions the operation on “standards or rules about the conversion of withdrawable shares to deposits as are determined by VicFIC.” If VicFIC standards were not published or applied consistently pre-transfer, the exact rights and processes may be unclear and require administrative clarification.

Staff transfers may not attract redundancy or severance payments

Sections 25(5) and 35(3) provide that a person whose AFIC or VicFIC employment ends on becoming an APRA employee or APS appointee is not entitled to receive any payment or other benefit because their appointment or employment ends under that section. That shifts the risk to the terms of the transfer agreements and employer policies; practitioners should advise staff and bargaining representatives accordingly.

Preservation of offences beyond transfer date

The Act preserves certain Code offences and allows them to apply beyond the transfer date (ss 43(2), 44(2), 45(2)). Entities must remain alert to exposure for historical conduct and not assume a statute-cutoff absolves liability.

Property vested in ASIC limited to liabilities

Section 49(4) states property vested in ASIC “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.” ASIC’s obligation to satisfy liabilities is limited to the society’s property properly available to satisfy those liabilities (s 49(5)). Trustees and claimants must examine the ring-fencing and availability of assets carefully.

Substitution of parties affects strategy in litigation

The substitution of State entities for AFIC/VicFIC in existing litigation (ss 29-31, 40-41) changes procedural posture and possibly defendant conduct, as the State may be represented by different counsel and may have different litigation strategies, immunities, or settlement policy.

Regulations may still be made

Section 57 gives the Governor in Council power to make regulations “necessary to give effect to this Act.” Regulatory instruments could add procedural requirements or clarifications; practitioners should monitor subordinate legislation for late-arriving obligations.

Cross-jurisdictional definitions

Several definitions and effects are set by reference to Commonwealth legislation (FSR Act, FS(BTGR) Act), other State legislation, and Codes. Failure to track those external definitions could lead to misapplication of the Act’s mechanics.

These “gotchas” are practical consequences of the Act’s architecture and wording. To mitigate them, promoters, boards, auditors, registrars, and advisers must coordinate documentary requirements, monitor APRA/ASIC certificates and guidance, confirm tax treatment for Part 4 transfers, and ensure staff and creditors are given correct notice and statements where the Act requires them.

For regulated entities, advisers and regulators, compliance is a mix of administrative, documentary, statutory and prudential steps. Below is a practical compliance checklist driven by the Act’s provisions and the statutory obligations it imposes.

Determine status and timing (transfer date)

Confirm whether the entity is a “transferring financial institution” within the meaning of Schedule 4 of the Corporations Law as adopted by s 5(4). Determine the exact transfer date as defined by the FSR Act and ensure all actions and filings match that date. Key actions tend to be timed to the transfer date (s 5).

Corporate registration continuity

Ensure that the entity’s registration as a company under the Corporations Law is properly recorded, relying on the statutory deeming in s 5(1). Note that s 5(3) preserves legal identity; however, update corporate records to reflect company law status and confirm corporate authorisations, constitutions and registers conform to Commonwealth company law requirements.

Asset and liability transfers under Part 4

For voluntary or compulsory transfers under the FS(BTGR) Act, monitor for the issuance of the relevant certificate of transfer (sections 10-11 reference s 18 and s 33 of the FS(BTGR) Act). When a certificate comes into force, obtain the authorised APRA officer certificate under s 12(1) identifying transferred assets and liabilities. Where required, produce these certificates to the Registrar of Titles or other registrars per s 13(2) and s 14(1).

Land and asset registry updates

Where the transferring body is the registered proprietor of land, lodge the authorised APRA officer certificate and any relevant title instruments with the Registrar of Titles to effect amendments to the land register (s 13(2)). For other asset registries, lodge the APRA certificate with the responsible register-holder and ask for registration in the usual manner (s 14(1)-(2)). Keep certified copies and a chain-of-title audit trail because certificates are prima facie evidence (s 12(2), s 15).

Documentation and challenge readiness

Because certificates are conclusive evidence unless the contrary is shown, maintain documentary backup (board resolutions, transfer statements under s 20 statements or s 30 statements as applicable, lists of assets and liabilities) to withstand any challenge to the correctness of certificates.

Withdrawable shares and account-holder treatment

For building societies, effect the statutory conversion of withdrawable shares to deposits and ensure account-holder records, voting rights and disclosure conform to s 48(1)-(3). Confirm and apply VicFIC standards or rules in force under s 48(4) for conversion processes and member notices.

Dormant accounts and reconciling deposits

Apply s 47 to reverse classification as dormant where conditions are met. Reconcile bank and deposit ledgers for amounts that had been classified as dormant to ensure they are treated as deposits as of the transfer date.

Industry Supervision Fund and levies

Track amounts to be transferred to the Industry Supervision Fund per s 17(2). Ensure VicFIC determinations and Ministerial determinations of amounts to be paid into the Industry Supervision Fund are recorded and funds are properly invested per s 17(4). Prepare and publish the Industry Supervision Fund financial statements annually (s 18), and make them available for public inspection (s 18(2)).

Staff transfers and statements of accrued entitlements

If employees of AFIC or VicFIC transfer to APRA under a transfer agreement (ss 24, 34), ensure that the employer issues written statements of accrued benefits, remuneration and recognised prior service (ss 26, 36) before transfer. Advise staff of the effect of ss 25(5) and 35(3) concerning non-entitlement to termination payments under those specific provisions.

Ongoing regulatory compliance and enforcement risk

Review historical conduct and compliance registers for actions that could give rise to preserved Code offences, as ss 43-45 preserve certain offences and allow them to be applied by APRA/ASIC. Implement remediation and record-retention to address potential investigations by APRA or ASIC.

Litigation and records

For ongoing proceedings where AFIC or VicFIC was a party, identify whether substitution by the State or continuation by APRA/ASIC has occurred under ss 29-31, 40-41. Preserve documents relied upon in prior regulatory audits because evidence admissible for or against AFIC/VicFIC is admissible against the substituted State (ss 29(4), 40(3)).

Trusts, property vested in ASIC, and deregulatory steps

Where property of a dissolved or deregistered society is vested in ASIC, confirm the trustee records and ASIC accounting obligations under s 49(6). If ASIC is acting in trustee capacity, coordinate with ASIC to manage distributions, trustee accounts, and possible establishment of the society as a company under s 49(9).

Tax consequences and stamp duty

Because s 54(2) excludes Part 4 from the general exemption from State taxes, obtain tax advice regarding stamp duty and other State taxes for transfers effected under Part 4. Do not assume transactions implicit in transfer certificates are tax free.

Monitor subordinate legislation and regulatory guidance

The Governor in Council may make regulations under s 57 and the relevant Commonwealth regulators may issue guidance on how they will exercise functions and enforce preserved Code provisions. Monitor for regulations and policy statements that affect practical compliance.

Audit and disclosure

Ensure that prescribed audits are carried out (s 33 requires audit by the Auditor-General for VicFIC statements), and prepare public disclosures required of the Industry Supervision Fund (s 18). Maintain compliance records subject to possible audit under the Audit Act.

Cross-jurisdictional coordination

Where cross-border or interstate societies are involved, apply ss 50 and 51 governing mergers and transfers of engagements commenced under the Financial Institutions (Victoria) Code or the Friendly Societies Code prior to the transfer date. Confirm which “relevant SSA” applies and whether the transfer or merger was properly initiated before the transfer date under the enumerated pre-conditions (s 50(4)-(5); s 51(4)-(5)).

Use legal counsel for certificate and register disputes

Given the evidentiary weight of s 12 certificates and the presumption in s 15, involve counsel early if there is a dispute about the substance of certificates or whether the correct procedural steps under the FS(BTGR) Act were completed.

By following these steps and documenting each phase , transfer-date timing, certificates, register amendments, staff statements, fund transfers, tax analyses, and regulatory notifications , entities and advisers can align statutory obligations under the Act with operational measures needed to effect the Commonwealth‑led regulatory transition. Regulations under s 57 and guidance from APRA/ASIC should be integrated as they become available.

Financial Sector Reform (Victoria) Act 1999

Plain English Summary

Deep Dive

What it does

Current sections

Financial Sector Reform (Victoria) Act 1999

Source text: opening excerpt

1 Financial Sector Reform (Victoria) Act 1999

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply