National Consumer Credit Protection (Large ADI) Determination 2023

This instrument formally defines which authorised deposit‑taking institutions, or ADIs, qualify as "large ADIs" for the purposes of subsection 5(1A) of the National Consumer Credit Protection Act 2009, by setting a size threshold, specifying how to measure an ADI’s size, and prescribing indexation and transition rules. The determination is made under the Act (see s 3) and was made by the Assistant Treasurer and Minister for Financial Services on 14 September 2023 (instrument heading and signature block). It commences the day after registration (s 2).

Mechanically, the determination does four things.

• It sets a numeric threshold. An ADI is a large ADI at a time during a financial year if its total asset size at the start of the financial year is equal to or exceeds $124 billion, subject to annual indexation (s 5(2); s 8).
• It prescribes how to measure "total asset size" for this purpose by reference to an ADI’s "total resident assets value" in APRA final reports and by averaging that value across earlier financial years depending on how many final reports exist (s 5(3)-(4); s 6).
• It specifies how to extract the "total resident assets value" from APRA reporting forms depending on which reporting standard applies, including precise line items and arithmetic when Reporting Standard ARS 720.0 applies in certain forms (s 6(2)-(4)).
• It fixes a method for annual indexation of the $124 billion threshold to movements in GDP (Current Prices, Original series) with rounding rules to the nearest $1 billion, a floor against downward adjustment, and calculation detail to three decimal places with prescribed rounding behaviour (s 8(1)-(4)).

The instrument also contains transitional protection that preserves large ADI status for an ADI that was a large ADI under the previous size determination for the remainder of the same financial year (s 9). The instrument links explicitly to particular APRA Reporting Standards by identifier and provides rules for mapping to replacement standards if identifiers change (s 7). Definitions and cross references bring in the Corporations Act definition of financial year and the prior "old determination" (s 4).

In sum, this instrument does not itself impose new prudential obligations; rather, it operationally determines which ADIs are captured as "large ADIs" under the National Consumer Credit Protection Act by setting a threshold, measurement rules and indexation mechanics. All procedural and measurement rules are contained in the determination and in the APRA reporting standards it references (s 4; s 7).

The instrument turns a legal criterion in the National Consumer Credit Protection Act 2009 into concrete, administrable measurement rules. The primary concepts in the text are explained and cross‑referenced as follows.

• Large ADI. The statute contains the concept. This determination specifies the kinds of ADIs that satisfy the statutory criterion in subsection 5(1A) by reference to a size threshold and measurement rules (s 5(1)-(2)). The instrument therefore operationalises the statutory label "large ADI".
• Total asset size. This is the proximate comparator used to decide large ADI status. The determination defines an ADI’s total asset size at the start of a financial year by reference to reported "total resident assets value" and an averaging rule across up to three earlier financial years, dependent on how many final reports the ADI has filed (s 5(3)).
• Total resident assets value. This is a term of art for the APRA reported value used in measuring total asset size. The instrument provides two alternative prescriptions depending on which APRA Reporting Standard and form were used for an ADI’s final report. Under ARS 323.0 it is the amount in Section A, item 11 Total assets in Form ARF 323.0 (s 6(2)). Under ARS 720.0 the value is taken either from Section A, item 13 Total assets including intra‑group assets in Form ARF 720.0B (s 6(4)), or computed from specified line items in Form ARF 720.0A by following the three‑step method in s 6(3).
• Reporting Standard. The instrument ties the measurement machinery to APRA reporting standards identified by their canonical identifiers (for example Reporting Standard ARS 323.0 and ARS 720.0), and it contains a clause governing how to interpret those identifiers if APRA replaces a standard with one having a different identifier (s 7(1)-(2)).
• Indexation factor. The $124 billion threshold is indexed annually on 1 January by a factor equal to the ratio of two ABS GDP figures: the first‑published annual estimate of Current Prices Original series for the most recent completed financial year before the indexation date, divided by the ABS annual estimate for the financial year ending 30 June 2022 (the base GDP number) (s 8(1)-(3)). The calculation is carried to three decimal places with specified rounding, is rounded down to the nearest $1 billion after multiplication (s 8(2)-(3)), and cannot decrease the threshold because factors less than 1 are raised to 1 (s 8(4)).
• Transitional protection. If an ADI was classified as a large ADI under the prior "old determination" for the financial year in which this instrument commences, the ADI remains a large ADI for the rest of that financial year despite the new measurement rule (s 9).

The instrument affects authorised deposit‑taking institutions, APRA as data recipient and aggregator, and any decision or regulatory regime that uses the statutory label "large ADI" under subsection 5(1A) of the National Consumer Credit Protection Act 2009.

• ADIs. The immediate legal effect is to change which ADIs are classified as large ADIs for a given financial year. An ADI with a total asset size at the start of a financial year equal to or exceeding the $124 billion threshold, as measured under the determination, is a large ADI for that time during the financial year (s 5(2)-(3)). The measurement relies on final reports submitted to APRA under Reporting Standards ARS 323.0 or ARS 720.0 (s 4; s 6(1)-(4)). The determination therefore affects ADIs who file those reports and whose reported totals fall near or above the threshold.
• APRA and reporting agents. The instrument imports values directly from APRA final reports and requires ADIs and their reporting agents to ensure the relevant line items are correctly completed because the determination uses specific items and forms to compute the "total resident assets value" (s 6(2)-(4)). Where an ADI has both ARS 720.0 and ARS 323.0 final reports for the same financial year, the determination instructs to use ARS 720.0 (s 5(4)).
• Treasury/Assistant Treasurer and statutory users. The Assistant Treasurer made the determination under the Act (s 3). Any other law or regulatory instrument that attaches regulatory consequences to the "large ADI" label for the purposes of the Act will be affected by the identity of ADIs classified under this determination, because this instrument determines the kinds of ADIs that are large ADIs under subsection 5(1A) of the Act (s 5(1)-(2)).
• Users of ABS statistics. The indexation mechanism relies on ABS GDP Current Prices Original series figures (s 8(3)). Users who monitor threshold movements need to follow the ABS first‑published annual estimates for the relevant financial years.

Who pays. The instrument does not itself impose monetary charges or penalties. However, ADIs that become classified as large ADIs under the Act will, by virtue of being so classified, be subject to whatever duties, obligations or regulatory consequences the Act and subsidiary instruments attach to large ADIs. The determination therefore shifts compliance costs and obligations to ADIs that cross the threshold, as measured by the reporting rules in this instrument (s 5; s 6).

Who decides. The determination assigns the measurement function to the Assistant Treasurer through the instrument made under the Act (s 3), with the operational data coming from APRA reports and ABS statistics as specified by the instrument (s 6; s 8).

The determination itself does not set substantive regulatory duties or rights beyond defining a classification. Rather, it creates binding measurement rules that determine which ADIs will be subject to duties and rights under the National Consumer Credit Protection Act 2009 connected to the "large ADI" label. The following are the concrete duties and procedural entitlements that the determination imposes or recognises.

• Obligation to use APRA final report data. An ADI’s total asset size for the start of a financial year must be calculated from its "total resident assets value" in APRA final reports, as defined by the instrument (s 5(3); s 6(1)-(4)). This ties the legal classification to an existing statutory reporting regime and thereby creates an indirect duty on ADIs to ensure accurate and timely final reporting to APRA if they wish to control their classification status.
• Averaging rule. The instrument imposes a specific arithmetic duty on how to compute the total asset size when an ADI has different numbers of prior final reports. If the ADI has only one prior final report, the total asset size is that single reported value. If there are two earlier final reports, the total is the simple average of those two years. If there are three or more earlier final reports, the total asset size is the average of the three most recent earlier financial years (s 5(3)(a)-(c)). This averaging rule is a binding calculation rule and creates an entitlement to rely upon older reporting years being disregarded when more than three earlier final reports exist.
• Preference for Reporting Standard ARS 720.0. If an ADI has submitted final reports for a financial year under both ARS 720.0 and ARS 323.0, the instrument directs that only the ARS 720.0 number is to be taken into account (s 5(4)). That is a binding rule that eliminates ambiguity where both reporting standards have been used.
• Detailed extraction rules. For ARS 323.0 final reports, the "total resident assets value" is taken from a specific item on a specific form, Section A, item 11 Total assets in Form ARF 323.0 (s 6(2)). For ARS 720.0 final reports with Form ARF 720.0A, the instrument prescribes a three‑step subtraction method using specified line items (s 6(3)). For ARF 720.0B, the value comes from Section A, item 13 Total assets including intra‑group assets (s 6(4)). These are strict rules on which line items determine the legal input number.
• Rights to certainty on reporting standard identity. Section 7 creates a statutory rule for identifying which version of a Reporting Standard applies for a given reporting period, and for substituting identifiers when APRA replaces a Reporting Standard under the Financial Sector (Collection of Data) Act 2001. This gives ADIs and practitioners an entitlement to consistent application of reporting rules even if APRA changes identifiers (s 7(1)-(2)).

The instrument itself contains no new penalty provisions and does not create enforcement powers beyond those already available under the National Consumer Credit Protection Act 2009 and other applicable statutes. The determination is a measurement instrument. Its enforcement properties are therefore indirect and depend on how the Act and other instruments apply to ADIs that are classified as "large ADIs".

• No fines or criminal sanctions in this instrument. The text contains no penalty clauses, infringement rules or criminal sanctions. It does not specify enforcement mechanisms for failures to comply with its measurement or reporting rules, nor does it create administrative fines (no sections in this determination create penalties).
• Indirect enforcement via APRA reporting obligations. The layer that gives the instrument effect is APRA’s reporting framework. The determination imports APRA final report values and reporting standards ARS 323.0 and ARS 720.0 (s 4; s 6). Failures to provide required reports, or to provide accurate APRA reports, remain subject to any enforcement regimes that apply under the Financial Sector (Collection of Data) Act 2001, APRA’s statutory powers and other relevant law. The determination itself does not modify those regimes; it simply refers to the values reported under them.
• Determination of legal status. The practical enforcement consequence of the determination is that it changes which ADIs are legally classified as large ADIs under subsection 5(1A) of the Act. Any enforcement, supervisory obligations, or sanctions that the Act or secondary instruments attach to that classification will therefore apply to ADIs that meet the numeric and reporting criteria set in this instrument (s 5). Enforcement of those downstream duties is undertaken under the Act and its enforcement architecture, not under this determination.
• Indexation and adjustment. The instrument fixes mechanics for indexation (s 8). Indexation reduces administrative uncertainty about when and how the threshold will move. The determination mandates rounding rules and a minimum factor of 1, and those arithmetic adjustments will alter which ADIs are captured in future years. There is no enforcement penalty for the indexation calculation because it is an automatic arithmetic rule applied by or on behalf of the responsible agency.
• Transitional protection. Section 9 removes the immediate enforcement risk of a mid‑financial year declassification: an ADI that was a large ADI under the old determination for the financial year in which this instrument commences remains a large ADI for the remainder of that financial year (s 9). That provision limits enforcement or supervisory reclassification actions within the transitional year.

The instrument is tightly integrated with, and dependent on, a small set of existing statutory and regulatory instruments and data sources. Those interactions determine both its legal force and its practical operation.

• National Consumer Credit Protection Act 2009. The instrument is made under the Act (s 3) and specifically implements subsection 5(1A) by defining the kinds of ADIs that are large ADIs (s 5(1)). The determination is therefore a subordinate instrument that gives effect to a statutory classification used elsewhere in the Act. Any duties, rights or enforcement mechanisms that attach to being a large ADI must be sought in the Act and its subordinate instruments; this determination only identifies which ADIs meet that criterion.
• Corporations Act 2001. The instrument adopts the Corporations Act definition of "financial year" through express reference to s 323D of the Corporations Act in its definitions (s 4). Therefore the temporal reference points used for “start of the financial year” and for “earlier financial years” are those statutory definitions.
• Financial Sector (Collection of Data) Act 2001 and APRA Reporting Standards. The determination imports data from APRA final reports prepared under Reporting Standard ARS 323.0 and ARS 720.0 (s 4; s 6). Section 7 expressly links the instrument’s references to a Reporting Standard identifier with determinations made under s 13 of the Financial Sector (Collection of Data) Act 2001 and provides mapping rules should APRA replace a Reporting Standard identifier (s 7(1)-(2)). Thus the instrument depends on APRA’s reporting regime and on the Financial Sector (Collection of Data) Act for operational data and for authoritative versions of the reporting standards.
• Old determination and the Financial Accountability Regime (Consequential Amendments) Act 2023. The instrument defines "old determination" as the Banking Executive Accountability Regime (Size of an Authorised Deposit‑taking Institution) Determination 2021 as in force immediately before the commencement of Part 2 of Schedule 1 to the Financial Accountability Regime (Consequential Amendments) Act 2023 (s 4). Section 9 provides a transitional rule for ADIs that were large ADIs under the old determination. This creates a temporal interaction between the two subordinate instruments around the relevant commencement event described in the Financial Accountability Regime (Consequential Amendments) Act 2023.
• Australian Bureau of Statistics GDP publications. Indexation of the $124 billion threshold is tied to ABS GDP Current Prices Original series annual estimates (s 8(3)). The base GDP number is specified as the ABS annual estimate for the financial year ending 30 June 2022. The "relevant GDP number" is defined as the first‑published annual estimate for the last financial year that ends before the relevant 1 January indexation date, disregarding any later revisions (s 8(3)). This ties the threshold to an independent statistical series and sets a clear rule for which ABS release is used.

The instrument as presented records its own making and commencement details and cites the instrument that it replaces or follows for transitional purposes. The determination contains limited internal amendment history because it is short and recent. The following items are the explicit historical markers contained in the text.

• Date and maker. The instrument is dated 14 September 2023 and signed by Stephen Jones, Assistant Treasurer and Minister for Financial Services. That is the making date recorded in the heading and signature block of the instrument.
• Commencement. Section 2 contains a commencement table that states "The whole of this instrument" commences the day after this instrument is registered. The instrument notes that the table relates only to provisions as originally made and will not be amended to record later amendments to the instrument (s 2).
• Relation to previous determinations. Section 4 defines "old determination" as the Banking Executive Accountability Regime (Size of an Authorised Deposit‑taking Institution) Determination 2021 as in force immediately before the commencement of Part 2 of Schedule 1 to the Financial Accountability Regime (Consequential Amendments) Act 2023. Section 9 provides that an ADI that was a large ADI under the old determination for the financial year in which this instrument commences continues to be a large ADI for the remainder of that financial year (s 9). That transitional clause records and accommodates the changeover from the prior subordinate instrument to this one.
• Indexation schedule. Section 8 institutes an ongoing, formulaic mechanism for annual indexation. That is an internal long‑term procedural "amendment" mechanism to the monetary threshold because the $124 billion figure is subjected to annual adjustment beginning 1 January 2024 and each 1 January thereafter (s 8(1)). The section prescribes exactly how the indexation factor is to be computed and the rounding rules for the indexed threshold (s 8(2)-(4)).
• No internal amendments recorded. The instrument contains no schedule of subsequent amendments, no amending provisions, and no footnote history of prior revisions. It contains a note that expressions have the same meaning as in the National Consumer Credit Protection Act 2009 as in force from time to time (s 4). Any later amendments to this determination would have to be made by a subsequent legislative instrument and would be recorded in the usual Federal Register of Legislation and the instrument’s own amendment notes.
• Interaction with APRA Reporting Standards. Section 7 contemplates replacement of Reporting Standards by APRA and sets rules for how references to reporting standard identifiers should be interpreted if identifiers are changed or a standard is replaced. That is a built‑in mechanism that reduces the need to amend the determination when APRA changes identifiers for reporting standards (s 7(1)-(2)).

The determination contains no litigation history and does not name any judicial decisions. The instrument is a subordinate legislative instrument that prescribes measurement rules; it does not purport to record case law or litigation outcomes.

• No cases or proceedings in the instrument. There are no named cases, references to judicial decisions or summaries of litigation in the text. Practitioners will not find precedent citations within the instrument itself.
• Practical note for litigators and advisers. Because the instrument determines which ADIs fall into a legislative category that may carry regulatory obligations elsewhere, disputes over classification could become the subject of administrative or judicial review proceedings in practice. The instrument does not specify an internal review path for classification decisions or APRA’s use of reported figures. Any challenge to a classification would therefore need to be framed against the statutory source that imposes obligations on large ADIs and against the factual basis supplied by APRA reporting and ABS data. The instrument does not itself create or define judicial remedies.
• Where to look for litigation. If a client requires up‑to‑date litigation about this determination or disputes arising from its application, the instrument itself contains no record. Practitioners must search external databases and court or tribunal records for any administrative or judicial review proceedings that post‑date this instrument. The determination’s text provides the legal hooks that would be litigated: the arithmetic averaging in s 5(3), the reporting form extractions in s 6, the ARS 720.0 preference in s 5(4), and the indexation calculations in s 8.
• Evidence considerations. The instrument fixes the evidential inputs: APRA final report items and ABS first‑published GDP annual estimates (s 6; s 8). Any factual dispute in litigation will therefore turn on whether those inputs were correctly reported, extracted and applied in accordance with the instrument’s rules.

Because the instrument contains no litigation history or references to cases, readers should assume none is recorded here and consult external legal databases for any subsequent litigation that may have arisen from the application of these measurement rules.

The determination contains several technical features and arithmetic rules that can produce unintended classification results unless practitioners pay attention to the precise mechanics. The following are concrete pitfalls and subtleties drawn from the text.

• Use of APRA "final report" items as the sole inputs. The instrument directs reliance on specific line items in APRA final reports for the "total resident assets value" (s 6). If an ADI’s accounting or reporting practice changes the content or allocation of particular line items in ARF 323.0 or ARF 720.0 forms, the legal classification can change even if underlying economic scale is unchanged. Practitioners must align legal advice with APRA reporting practice and form instructions to predict classification outcomes.
• Different outcomes depending on which APRA form is used. For ARS 720.0, the instrument distinguishes between Form ARF 720.0A and ARF 720.0B. For ARF 720.0A a particular subtraction method across specified line items is prescribed (s 6(3)). For ARF 720.0B the figure is taken directly from Section A, item 13 (s 6(4)). Therefore materially different reported forms for the same reporting period can produce different "total resident assets value" inputs. ADIs and reporting advisers must check which form was used and ensure the appropriate arithmetic is applied.
• Preference for ARS 720.0 when both standards used. If an ADI submits final reports for a financial year under both ARS 720.0 and ARS 323.0, the instrument requires using the ARS 720.0 value only (s 5(4)). That choice can significantly affect the calculated asset size if the two forms produce different totals. Where both were submitted, plan to rely on ARS 720.0 values for classification calculations.
• Averaging rules can mask recent growth or decline. The total asset size at the start of a financial year is calculated as the average of one, two or the three most recent earlier financial years depending on how many final reports exist (s 5(3)). If an ADI has three or more earlier final reports, only the three most recent years are averaged. This smoothing means that rapid growth or decline in the most recent year can be diluted by the averaging rule. Conversely, in early years with only one or two prior final reports, a single high or low year will directly determine classification. The averaging rule therefore creates differing volatility profiles depending on an ADI’s reporting history.
• Indexation rounding and floor. Indexation is applied on 1 January each year by multiplying the amount by an indexation factor and then rounding the result down to the nearest multiple of $1 billion (s 8(1)-(2)). The use of rounding down creates discontinuities at $1 billion steps. An ADI whose asset size sits near the threshold can therefore experience classification changes caused by rounding arithmetic rather than economic changes. Moreover, the indexation factor is floored at 1, so the threshold cannot decrease as a result of indexation, which can obstruct declassification driven by GDP contraction, but also prevents windfall downwards adjustments (s 8(4)).

Compliance with the determination is largely a matter of ensuring that the APRA final reports and related internal recordkeeping produce the correct inputs that the determination requires. The following concrete steps and checks, grounded in the instrument’s text, are the practical compliance actions ADIs and advisers should adopt.

1. Identify the relevant start date and prior final reports. Determine the ADI’s financial year as defined in s 323D of the Corporations Act 2001, which the instrument adopts by reference (s 4). For the relevant start of that financial year, count how many earlier financial years the ADI has submitted final reports for to APRA. This determines whether the total asset size will be the single value, the average of two values, or the average of the three most recent values (s 5(3)(a)-(c)).

2. Confirm which Reporting Standard and specific form apply. For each final reporting period being used to compute the total resident assets value, confirm whether the report was submitted under Reporting Standard ARS 323.0 or ARS 720.0, and whether ARS 720.0 was reported on Form ARF 720.0A or ARF 720.0B (s 4; s 6). If both ARS 720.0 and ARS 323.0 were submitted for the same financial year, plan to use only the ARS 720.0 value as specified (s 5(4)).

3. Extract the precise line items. For ARS 323.0 final reports, extract the amount reported in Section A, item 11 Total assets in Form ARF 323.0 (s 6(2)). For ARS 720.0 final reports using ARF 720.0B, extract Section A, item 13 Total assets including intra‑group assets (s 6(4)). For ARF 720.0A, apply the three‑step arithmetic method in s 6(3): start with Section A, item 13 Total assets including intra‑group assets; subtract Section A, item 11.1 Total assets excluding intra‑group assets of which: Due from non‑residents; then subtract Section A, item 12.1 Total intra‑group assets of which: Due from non‑residents (s 6(3)).

4. Compute averages correctly. Once the relevant total resident assets values have been identified for the earlier financial years in question, compute the total asset size at the start of the financial year by applying the averaging rule in s 5(3). For three or more earlier financial years use the three most recent earlier years only (s 5(3)(c)).

5. Monitor APRA reporting practices and form selection. Ensure internal reporting and external reporting providers (including APRA reporting teams) understand that the instrument’s legal classification depends on the specific form and line items. If the ADI considers that using a different APRA form or consolidation approach would better reflect its resident assets, plan form selection accordingly and document the rationale.