25Compulsory transfer of business determinations

#### 25 Compulsory transfer of business determinations Transfer from one ADI to another (1) APRA may make a written determination that there is to be a total transfer or partial transfer of business from one ADI to another ADI. APRA may make the determination only if: (a) either the Minister has declared under section 25A that a transfer of business should occur from the transferring body to the receiving body or APRA is satisfied that: (i) the transferring body has contravened a provision of the Banking Act 1959, any regulations or other instruments made under that Act or conditions imposed under that Act; or (ii) the transferring body has informed APRA under subsection 13(3) of the Banking Act 1959 that it considers that it is likely to become unable to meet its obligations, or that it is about to suspend payment; or (iii) APRA is investigating the affairs of the transferring body, or has appointed a person to investigate the affairs of the transferring body, under subsection 13A(1) of the Banking Act 1959; or (iv) there is a Banking Act statutory manager of the transferring body under the Banking Act 1959; or (v) APRA has appointed a person to investigate and report on prudential matters in relation to the transferring body under subsection 61(1) of the Banking Act 1959; and (b) APRA has considered the interests of depositors of the transferring body (when viewed as a group) and considers that, having regard to their interests, it would be appropriate for the transfer to be made; and (c) APRA is satisfied that the transfer is appropriate, having regard to the interests of depositors of the receiving body when viewed as a group; and (d) the conditions in subsection (2) exist. Transfer from an ADI to a body corporate that is not an ADI (1A) APRA may make a written determination that there is to be a partial transfer of business from an ADI to a body corporate that is not an ADI. APRA may make the determination only if: (a) at least one of the following applies: (i) the condition in paragraph (1)(a) is met (for the ADI as the transferring body and the body corporate that is not an ADI as the receiving body); (ii) APRA has made a determination relating to the transferring body under subsection (1) for the partial transfer of some or all of its regulated business to another ADI (whether or not the transfer provided for in that determination has occurred); and (b) APRA has considered the interests of depositors of the transferring body (when viewed as a group) and considers that, having regard to their interests, it would be appropriate for the transfer to be made; and (c) the conditions in subsection (2) exist. Transfer from a body corporate related to an ADI to another body (1B) APRA may make a written determination that there is to be a total transfer or partial transfer of business from a body corporate that is related to an ADI and is not an ADI, general insurer or life insurance company to another body corporate (the transferee). APRA may make the determination only if: (a) APRA is making, or has made within a reasonable period: (i) a determination under subsection (1) or (1A) relating to the ADI for the total transfer or partial transfer of its business to a body corporate (the original receiving body) (whether or not the transfer provided for in that determination has occurred); or (ii) a determination under section 25AA relating to the ADI for the transfer of the shares in the ADI to a body corporate (also the original receiving body) (whether or not the transfer provided for in that determination has occurred); and (b) the transferee is the original receiving body or is related to the original receiving body. Transfer from one life insurance company to another (1C) APRA may make a written determination that there is to be a transfer of business from one life insurance company to another life insurance company, other than a transfer only of business of the transferring body that is not regulated business. APRA may make the determination only if: (a) APRA is satisfied that: (i) the transferring body has contravened the Life Insurance Act 1995, any regulations or other instruments made under that Act or conditions imposed under that Act; or (ii) APRA has given the transferring body a written notice under subsection 139(1) of the Life Insurance Act 1995 stating that APRA proposes to investigate life insurance business of the body; or (iii) a judicial manager of the transferring body has recommended, under subsection 175(2) of the Life Insurance Act 1995, that the business or part of the business of the body be transferred to another company; or (iv) there is a Life Insurance Act statutory manager of the transferring body under the Life Insurance Act 1995; and (b) APRA has considered the interests of policy owners of the transferring body (when viewed as a group) and considers that, having regard to their interests, it would be appropriate for the transfer to be made; and (c) APRA is satisfied that the transfer is appropriate, having regard to the interests of policy owners of the receiving body when viewed as a group; and (d) the conditions in subsection (2) exist. Transfer of unregulated business from life insurance company (1D) APRA may make a written determination that there is to be a transfer of only business that is not regulated business from a life insurance company to a body corporate that is not an insurance company or life insurance company if, and only if: (a) APRA is satisfied that: (i) the transferring body has contravened the Life Insurance Act 1995, any regulations or other instruments made under that Act or conditions imposed under that Act; or (ii) APRA has given the transferring body a written notice under subsection 139(1) of the Life Insurance Act 1995 stating that APRA proposes to investigate life insurance business of the body; or (iii) a judicial manager of the transferring body has recommended, under subsection 175(2) of the Life Insurance Act 1995, that the business or part of the business of the body be transferred to another company; or (iiia) there is a Life Insurance Act statutory manager of the transferring body under the Life Insurance Act 1995; or (iv) APRA has made a determination under subsection (1C) for the transfer of some or all of the transferring body’s regulated business to another life insurance company (whether or not the transfer has yet happened); and (b) APRA has considered the interests of policy owners of the transferring body (when viewed as a group) and considers that, having regard to those interests, it would be appropriate for the transfer to be made; and (c) the conditions in subsection (2) exist. Transfer from a body corporate related to a life insurance company to another body (1DA) APRA may make a written determination that there is to be a total transfer or partial transfer of business from a body corporate that is related to a life insurance company and is not an ADI, general insurer or life insurance company to another body corporate (the transferee). APRA may make the determination only if: (a) APRA is making, or has made within a reasonable period: (i) a determination under subsection (1C) or (1D) relating to the life insurance company for the total transfer or partial transfer of its business to a body corporate (the original receiving body) (whether or not the transfer provided for in that determination has occurred); or (ii) a determination under section 25AA relating to the life insurance company for the transfer of the shares in the life insurance company to a body corporate (also the original receiving body) (whether or not the transfer provided for in that determination has occurred); and (b) the transferee is the original receiving body or is related to the original receiving body. Transfer of business from general insurer (1E) APRA may make a written determination that there is to be a transfer of business from one general insurer to another general insurer, other than a transfer only of business of the transferring body that is not regulated business, if, and only if: (a) APRA is satisfied that: (i) the transferring body has contravened the Insurance Act 1973, any regulations or other instruments made under that Act or conditions imposed under that Act; or (ii) APRA has served on the transferring body a written notice under subsection 52(4) of the Insurance Act 1973 specifying matters into which an investigation under section 52 of that Act is to be made; or (iii) a judicial manager of the transferring body has recommended, under section 62ZI of the Insurance Act 1973, that the body’s business be transferred to another general insurer; or (iv) there is an Insurance Act statutory manager of the transferring body under the Insurance Act 1973; and (b) APRA has considered the interests of policy owners of the transferring body (when viewed as a group) and considers that, having regard to those interests, it would be appropriate for the transfer to be made; and (c) APRA is satisfied that the transfer is appropriate, having regard to the interests of policy owners of the receiving body when viewed as a group; and (d) the conditions in subsection (2) exist. Transfer of unregulated business from general insurer (1F) APRA may make a written determination that there is to be a transfer of only business that is not regulated business from a general insurer to a body corporate that is not an insurance company or life insurance company if, and only if: (a) APRA is satisfied that: (i) the transferring body has contravened the Insurance Act 1973, any regulations or other instruments made under that Act or conditions imposed under that Act; or (ii) APRA has served on the transferring body a written notice under subsection 52(4) of the Insurance Act 1973 specifying matters into which an investigation under section 52 of that Act is to be made; or (iii) a judicial manager of the transferring body has recommended, under section 62ZI of the Insurance Act 1973, that the body’s business be transferred to another general insurer; or (iiia) there is an Insurance Act statutory manager of the transferring body under the Insurance Act 1973; or (iv) APRA has made a determination under subsection (1E) for the transfer of some or all of the transferring body’s regulated business to another general insurer (whether or not the transfer has yet happened); and (b) APRA has considered the interests of policy owners of the transferring body (when viewed as a group) and considers that, having regard to those interests, it would be appropriate for the transfer to be made; and (c) the conditions in subsection (2) exist. Transfer from a body corporate related to a general insurer to another body (1G) APRA may make a written determination that there is to be a total transfer or partial transfer of business from a body corporate that is related to a general insurer and is not an ADI, general insurer or life insurance company to another body corporate (the transferee). APRA may make the determination only if: (a) APRA is making, or has made within a reasonable period: (i) a determination under subsection (1E) or (1F) relating to the general insurer for the total transfer or partial transfer of its business to a body corporate (the original receiving body) (whether or not the transfer provided for in that determination has occurred); or (ii) a determination under section 25AA relating to the general insurer for the transfer of the shares in the general insurer to a body corporate (also the original receiving body) (whether or not the transfer provided for in that determination has occurred); and (b) the transferee is the original receiving body or is related to the original receiving body. Common conditions for making a determination under this section > Note: (2) APRA may make a determination under this section only if: (d) APRA is satisfied that the board of directors of the receiving body has consented to the transfer; and (e) APRA is satisfied that the transfer is appropriate, having regard to: (ii) the interests of the financial sector as a whole; and (iii) any other matters that APRA considers relevant; and (f) where: (i) the transferring body is established in a State or Territory; and (ii) the receiving body is established in a State or Territory; APRA has considered whether legislation to facilitate the transfer that satisfies the requirements of section 14 has been enacted in the State or Territory in which the transferring body is established and the State or Territory in which the receiving body is established; and (g) either: (i) the Minister has consented to the transfer; or (ii) the Minister’s consent to the transfer is not required (see section 29). (2A) To avoid doubt, APRA may make a determination under this section even if the legislation mentioned in paragraph (2)(f) has not been enacted as mentioned in that paragraph. Formal requirements for determinations under this section (3) A determination under this section must include particulars of the transfer, including: (a) the names of the transferring body and the receiving body; and (b) whether it will be a total transfer or a partial transfer; and (c) if it will be a partial transfer—an identification of the part of the transferring body’s business that is to be transferred. (4) A determination under this section must include a statement of the reasons why the determination has been made. (5) A determination under this section must be signed by an authorised APRA officer. Determinations under this section are not legislative instruments (6) A determination made under this section is not a legislative instrument.