Commonwealth: Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 (Cth)

Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 No. 10, 2018 An Act to amend the law in relation to the financial sector, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendment of the Banking Act 1959 Part 1—Main amendments Banking Act 1959 Part 2—Application provisions Schedule 2—Amendment of the Insurance Act 1973 Part 1—Main amendments Insurance Act 1973 Part 2—Application provisions Schedule 3—Amendment of the Life Insurance Act 1995 Part 1—Main amendments Life Insurance Act 1995 Part 2—Application provisions Schedule 4—Amendment of the Financial Sector (Business Transfer and Group Restructure) Act 1999 Financial Sector (Business Transfer and Group Restructure) Act 1999 Schedule 5—Amendment of the Payment Systems and Netting Act 1998 Part 1—Main amendments Payment Systems and Netting Act 1998 Part 2—Application provisions Schedule 6—Amendment of the Australian Prudential Regulation Authority Act 1998 Australian Prudential Regulation Authority Act 1998 Schedule 7—Amendments of other Acts Corporations Act 2001 Income Tax Assessment Act 1997 Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 No. 10, 2018 An Act to amend the law in relation to the financial sector, and for related purposes [Assented to 5 March 2018] The Parliament of Australia enacts: 1 Short title This Act is the Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 5 March 2018 2. Schedules 1 to 7 The day this Act receives the Royal Assent. 5 March 2018 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Banking Act 1959 Part 1—Main amendments Banking Act 1959 1 Subsection 5(1) (definition of ADI statutory manager) Repeal the definition. 2 Subsection 5(1) Insert: administrator, of a body corporate's business, means an administrator appointed under subsection 13A(1) to take control of the body corporate's business. 3 Subsection 5(1) (definition of administrator of an ADI's business) Repeal the definition. 4 Subsection 5(1) Insert: Australian business assets and liabilities, of a foreign ADI, has the meaning given by subsection 11E(3). Banking Act statutory manager has the meaning given by subsection 13A(2). direction under this Act means a direction under any of the following provisions: (a) section 11CA; (b) section 11CC; (c) section 13E; (d) section 17; (e) section 23; (f) section 29; (g) section 31F. 5 Subsection 5(1) (paragraph (a) of the definition of external administrator) Omit "or provisional liquidator". 6 Subsection 5(1) (paragraph (b) of the definition of external administrator) Omit "an ADI statutory manager", substitute "a Banking Act statutory manager". 7 Subsection 5(1) Insert: financial market has the meaning given by section 761A of the Corporations Act 2001. holding company, of a body corporate, means another body corporate of which the first body corporate is a subsidiary. liquidator includes a provisional liquidator. listing rules has the meaning given by section 761A of the Corporations Act 2001. NOHC/NOHC subsidiary has the meaning given by subsection 13D(5). 8 Subsection 5(1) (definition of prudential matters) Repeal the definition, substitute: prudential matters means matters relating to: (a) the conduct of any part of the affairs of, or the structuring or organising of, an ADI, an authorised NOHC, a relevant group of bodies corporate, or a particular member or members of such a group, in such a way as: (i) to keep the ADI, NOHC, group or member or members of the group in a sound financial position; or (ii) to facilitate resolution of the ADI, NOHC, group or member or members of the group; or (iii) to protect the interests of depositors of any ADI; or (iv) not to cause or promote instability in the Australian financial system; or (v) not to cause or promote instability in the New Zealand financial system; or (b) the conduct of any part of the affairs of an ADI, an authorised NOHC, a relevant group of bodies corporate, or a particular member or members of such a group, with integrity, prudence and professional skill. 9 Subsection 5(1) (definition of recapitalisation direction) Omit "subsection 13E(1)", substitute "subsection 13E(1) or (1B)". 10 Subsection 5(1) Insert: related body corporate, in relation to a body corporate, means a body corporate that is related to the first‑mentioned body, as determined in accordance with subsection 5(2A). resolution means the process by which APRA or other relevant persons manage or respond to an entity: (a) being unable to meet its obligations; or (b) being considered likely to be unable, or being considered likely to become unable, to meet its obligations; or (c) suspending payment, or being considered likely to suspend payment; including through the exercise of powers and functions under this Act or another law. transferred liabilities determination means a determination under subsection 16AIA(1). 11 After subsection 5(2) Insert: Related bodies corporate (2A) For the purposes of this Act, the question whether a body corporate is related to another body corporate is to be determined in the same way as that question is determined for the purposes of the Corporations Act 2001. 12 Subsection 5(6) Omit "under section 14F on or after 12 October 2011", substitute "under section 16AAA". 13 Subsections 9(4) to (9) Repeal the subsections, substitute: (4) If APRA grants an authority under subsection (3), APRA must cause notice of that authority to be published in the Gazette. APRA may also cause notice of that authority to be published in any other way it considers appropriate. (5) A failure to comply with subsection (4) does not affect the validity of the authority. (6) Part VI applies to a decision to refuse an application under this section. 14 After section 9 Insert: 9AA Conditions on an authority (1) APRA may, at any time, by giving written notice to a body corporate: (a) impose conditions, or additional conditions, on the body corporate's section 9 authority; or (b) vary or revoke conditions imposed on the body corporate's section 9 authority. The conditions must relate to prudential matters. (2) A condition may be expressed to have effect despite anything in the prudential standards or the regulations. (3) Without limiting the conditions that APRA may impose on an authority, APRA may make the authority conditional on another body corporate, of which the body corporate is a subsidiary, being an authorised NOHC. (4) If APRA imposes, varies or revokes the conditions on a body corporate's section 9 authority, APRA must: (a) give written notice to the body corporate; and (b) ensure that notice that the action has been taken is published in the Gazette. (5) The taking of an action is not invalid merely because of a failure to comply with subsection (4). (6) Part VI applies to the following decisions made under this section: (a) a decision to impose conditions, or additional conditions, on a body corporate's section 9 authority; (b) a decision to vary conditions imposed on a body corporate's section 9 authority. 9AB Breach of authority conditions (1) A body corporate commits an offence if: (a) the body corporate does an act or fails to do an act; and (b) doing the act or failing to do the act results in a contravention of a condition of the body corporate's section 9 authority; and (c) there is no determination in force under section 11 that this subsection does not apply to the body corporate. Penalty: 300 penalty units. (2) If an individual: (a) commits an offence against subsection (1) because of Part 2.4 of the Criminal Code; or (b) commits an offence under Part 2.4 of the Criminal Code in relation to an offence against subsection (1); he or she is punishable, on conviction, by a fine not exceeding 60 penalty units. (3) An offence against this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 15 Section 9A (heading) Repeal the heading, substitute: 9A Revocation of authority etc. 16 Subsection 9A(2) Repeal the subsection, substitute: (2) APRA may revoke a body corporate's section 9 authority if APRA is satisfied that: (a) the body corporate has, whether before or after the commencement of this paragraph, provided, in connection with its application for the authority, information that was false or misleading in a material particular; or (b) the body corporate has failed to comply with any of the following: (i) a requirement of this Act; (ii) a requirement of the Financial Sector (Collection of Data) Act 2001; (iii) a requirement of the regulations or any other instrument made under this Act; (iv) a requirement of a provision of another law of the Commonwealth, if the provision is specified in the regulations; (v) a direction under this Act; (vi) a condition of its section 9 authority; or (c) it would be contrary to the national interest for the authority to remain in force; or (d) it would be contrary to financial system stability in Australia for the authority to remain in force; or (e) it would be contrary to the interests of depositors of the body corporate for the authority to remain in force; or (f) the body corporate has failed to pay: (i) an amount of levy or late penalty to which the Financial Institutions Supervisory Levies Collection Act 1998 applies; or (ii) an amount of charge fixed under section 51 of the Australian Prudential Regulation Authority Act 1998; or (g) the body corporate is insolvent and is unlikely to return to solvency within a reasonable period of time; or (h) the body corporate has ceased to carry on banking business in Australia; or (j) the body corporate is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution, and: (i) the body corporate is unlikely to be able to meet its liabilities in Australia and is unlikely to be able to do so within a reasonable period of time; or (ii) an authority (however described) for the body corporate to carry on banking business in a foreign country has been revoked or otherwise withdrawn in that foreign country. The procedures to be undergone before a revocation under this subsection are set out in subsection (3). Those procedures apply unless APRA determines under subsection (4) that they are not to apply. 17 Subsections 11AA(3) to (8) Repeal the subsections, substitute: (3) If APRA grants an authority under subsection (2), APRA must cause notice of that authority to be published in the Gazette. APRA may also cause notice of that authority to be published in any other way it considers appropriate. (4) A failure to comply with subsection (3) does not affect the validity of the authority. (5) Part VI applies to a decision to refuse an application under this section. 18 After section 11AA Insert: 11AAA Conditions on an authority (1) APRA may, at any time, by giving written notice to a body corporate: (a) impose conditions, or additional conditions, on the body corporate's NOHC authority; or (b) vary or revoke conditions imposed on the body corporate's NOHC authority. The conditions must relate to prudential matters. (2) A condition may be expressed to have effect despite anything in the prudential standards or the regulations. (3) If APRA imposes, varies or revokes the conditions on a body corporate's NOHC authority, APRA must: (a) give written notice to the body corporate; and (b) ensure that notice that the action has been taken is published in the Gazette. (4) The taking of an action is not invalid merely because of a failure to comply with subsection (3). (5) Part VI applies to the following decisions made under this section: (a) a decision to impose conditions, or additional conditions, on a body corporate's NOHC authority; (b) a decision to vary conditions imposed on a body corporate's NOHC authority. 11AAB Breach of authority conditions (1) A body corporate commits an offence if: (a) the body corporate does an act or fails to do an act; and (b) doing the act or failing to do the act results in a contravention of a condition of the body corporate's NOHC authority; and (c) there is no determination in force under section 11 that this subsection does not apply to the body corporate. Penalty: 300 penalty units. (2) If an individual: (a) commits an offence against subsection (1) because of Part 2.4 of the Criminal Code; or (b) commits an offence under Part 2.4 of the Criminal Code in relation to an offence against subsection (1); he or she is punishable, on conviction, by a fine not exceeding 60 penalty units. (3) An offence against this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 19 Section 11AB (heading) Repeal the heading, substitute: 11AB Revocation of authority etc. 20 Paragraph 11AB(2)(a) Repeal the paragraph, substitute: (a) the body corporate has failed to comply with any of the following: (i) a requirement of this Act; (ii) a requirement of the Financial Sector (Collection of Data) Act 2001; (iii) a requirement of the regulations or any other instrument made under this Act; (iv) a requirement of a provision of another law of the Commonwealth, if the provision is specified in the regulations; (v) a direction under this Act; (vi) a condition of its NOHC authority; or 21 At the end of Division 1AA of Part II Add: 11AE APRA may give notice to ensure that ADI has an authorised NOHC (1) This section applies if: (a) a body corporate is a holding company of an ADI; and (b) the ADI is not a subsidiary of an authorised NOHC. (2) APRA may, by notice in writing to the body corporate, require it to ensure, in accordance with the conditions (if any) specified in the notice, that either of the following occurs: (a) the body corporate becomes an authorised NOHC of the ADI; (b) a subsidiary of the body corporate becomes an authorised NOHC of the ADI. Note: See Part 4A of the Financial Sector (Transfer and Restructure) Act 1999 for other provisions that deal with a restructure arrangement to make an operating body a subsidiary of a NOHC. (3) The notice may deal with the time by which, or period during which, it is to be complied with. (4) The body corporate has power to comply with the notice despite anything in its constitution or any contract or arrangement to which it is a party. (5) APRA may, by notice in writing to the body corporate, vary the notice mentioned in subsection (2) if, at the time of the variation, it considers that the variation is necessary and appropriate. (6) The notice mentioned in subsection (2) has effect until APRA revokes it by notice in writing to the body corporate. APRA may revoke the notice mentioned in subsection (2) if, at the time of revocation, it considers that the notice is no longer necessary or appropriate. (7) Part VI applies to a decision to give a notice under subsection (2). (8) Section 11CG applies in relation to a notice to a body corporate under subsection (2) in the same way in which it applies to a direction to an ADI under Subdivision B of Division 1BA. (9) However, section 11CG does not apply to a contravention by a body corporate of a requirement in a notice under subsection (2) if: (a) the contravention happens merely because APRA refuses to grant the body corporate (or its subsidiary) an authority under subsection 11AA(2); and (b) APRA's reasons for that refusal do not include the reason that one or more conditions specified in the notice are not satisfied. 22 Before section 11AF Insert: Subdivision A—Prudential supervision and monitoring of ADIs and authorised NOHCs generally 23 Paragraphs 11AF(1)(c) and (d) Repeal the paragraphs, substitute: (c) the subsidiaries of ADIs or authorised NOHCs; or (d) a specified class of ADIs, authorised NOHCs or subsidiaries of ADIs or authorised NOHCs; or (e) one or more specified ADIs, authorised NOHCs or subsidiaries of ADIs or authorised NOHCs. 24 Subsection 11AF(1A) Repeal the subsection, substitute: (1A) A standard may impose different requirements to be complied with: (a) in different situations; or (b) in respect of different activities; including requirements to be complied with by different classes of ADIs, authorised NOHCs or subsidiaries of ADIs or authorised NOHCs. 25 After paragraph 11AF(1AA)(b) Insert: (ba) each subsidiary of an ADI or of an authorised NOHC; or (bb) each subsidiary of an ADI or of an authorised NOHC, included in a specified class of subsidiaries; or 26 After paragraph 11AF(1AA)(d) Insert: or (e) a specified subsidiary of an ADI or of an authorised NOHC; or (f) each of 2 or more specified subsidiaries of ADIs or of authorised NOHCs; 27 Subsection 11AF(2) Omit "one or more specified ADIs or authorised NOHCs", substitute "one or more specified ADIs or authorised NOHCs, or one or more specified subsidiaries of ADIs or authorised NOHCs". 28 Subsections 11AF(4A) and (5A) Repeal the subsections, substitute: (4A) If APRA determines or varies a standard referred to in paragraph (1)(e) it must, as soon as practicable: (a) give a copy of the standard, or of the variation, to the ADI, authorised NOHC or subsidiary, or to each ADI, authorised NOHC or subsidiary, to which the standard applies; and (b) give a copy of the standard, or of the variation, to the Treasurer. (5A) If APRA revokes a standard referred to in paragraph (1)(e) it must, as soon as practicable: (a) give notice of the revocation to the ADI, authorised NOHC or subsidiary, or to each ADI, authorised NOHC or subsidiary, to which the standard applied; and (b) give a copy of the revocation to the Treasurer. 29 After section 11AF Insert: 11AG Obligation to comply with the prudential standards An ADI, authorised NOHC or a subsidiary of an ADI or authorised NOHC to which a prudential standard applies must comply with the standard. 30 Section 11A Omit "ADIs and authorised NOHCs", substitute, "ADIs, authorised NOHCs, subsidiaries of ADIs and subsidiaries of authorised NOHCs". 31 At the end of Division 1A of Part II Add: Subdivision B—Conversion and write‑off provisions 11CAA Definitions In this Subdivision: clearing and settlement facility has the meaning given by Division 6 of Part 7.1 of the Corporations Act 2001. conversion and write‑off provisions means the provisions of the prudential standards that relate to the conversion or writing off of: (a) Additional Tier 1 and Tier 2 capital; or (b) any other instrument. conversion entity: an entity (the first entity) is a conversion entity for an instrument if: (a) the instrument is issued by another entity, or another entity is a party to the instrument; and (b) the instrument converts, in accordance with the terms of the instrument, into one or more ordinary shares or mutual equity interests of the first entity. converts: an instrument converts into one or more ordinary shares or mutual equity interests of an entity including by redeeming or cancelling the instrument or rights under the instrument, and replacing the instrument or rights with ordinary shares or mutual equity interests (as the case requires). mutual equity interests has the same meaning as in the prudential standards. operating rules has the meaning given by section 761A of the Corporations Act 2001. related subsidiary of an ADI means a subsidiary of a holding company of the ADI. specified law means any of the following: (a) the Financial Sector (Shareholdings) Act 1998; (b) the Foreign Acquisitions and Takeovers Act 1975; (c) Chapter 6 of the Corporations Act 2001 (takeovers); (d) any other Australian law, or law of a foreign country or part of a foreign country, prescribed by the regulations for the purposes of this paragraph. 11CAB Conversion and write‑off provisions Application (1) This section applies in relation to an instrument that contains terms that are for the purposes of the conversion and write‑off provisions and that is issued by, or to which any of the following is a party: (a) an ADI; (b) a holding company of an ADI; (c) a subsidiary or related subsidiary of an ADI; (d) an entity of a kind prescribed by the regulations for the purposes of this paragraph. Conversion of instrument despite other laws etc. (2) The instrument may be converted in accordance with the terms of the instrument despite: (a) any Australian law or any law of a foreign country or a part of a foreign country, other than a specified law; and (b) the constitution of any of the following entities (the relevant entity): (i) the entity issuing the instrument; (ii) any entity that is a party to the instrument; (iii) any conversion entity for the instrument; and (c) any contract or arrangement to which a relevant entity is a party; and (d) any listing rules or operating rules of a financial market in whose official list a relevant entity is included; and (e) any operating rules of a clearing and settlement facility through which the instrument is traded. Write‑off of instrument despite other laws etc. (3) The instrument may be written off in accordance with the terms of the instrument despite: (a) any Australian law or any law of a foreign country or a part of a foreign country; and (b) the constitution of either of the following entities (the relevant entity): (i) the entity issuing the instrument; (ii) any entity that is a party to the instrument; and (c) any contract or arrangement to which a relevant entity is a party; and (d) any listing rules or operating rules of a financial market in whose official list a relevant entity is included; and (e) any operating rules of a clearing and settlement facility through which the instrument is traded. 11CAC Conversion or write‑off etc. not grounds for denial of obligations (1) This section applies if an entity (the first entity) is party to a contract, whether the proper law of the contract is: (a) Australian law (including the law of a State or Territory); or (b) law of a foreign country (including the law of part of a foreign country). (2) None of the matters mentioned in subsection (3) allows the contract, or a party to the contract (other than the first entity), to do any of the following: (a) deny any obligation under the contract; (b) accelerate any debt under the contract; (c) close out any transaction relating to the contract; (d) enforce any security under the contract. (3) The matters are as follows: (a) a relevant instrument being converted in accordance with the terms of the instrument; (b) a relevant instrument being written off in accordance with the terms of the instrument; (c) the making of a determination (however described) by APRA that results in a relevant instrument being required to be converted or written off in accordance with the terms of the instrument. (4) In this section: relevant instrument means: (a) an instrument to which section 11CAB applies: (i) that is issued by the first entity; or (ii) to which the first entity is a party; or (iii) for which the first entity is a conversion entity; or (b) if the first entity is a body corporate that is a member of a relevant group of bodies corporate—an instrument to which section 11CAB applies: (i) that is issued by another member of the group; or (ii) to which another member of the group is a party; or (iii) for which another member of the group is a conversion entity. 32 Subsection 11CA(1) Omit "Without limiting subsection (1AA), APRA may", substitute "APRA may". 33 Paragraph 11CA(1)(c) Omit "and such a contravention is likely to give rise to a prudential risk", substitute "and the direction is reasonably necessary for one or more prudential matters relating to the body corporate". 34 Subsection 11CA(1AA) Repeal the subsection, substitute: (1AA) APRA may give a body corporate that is an ADI or is an authorised NOHC a direction of a kind specified in subsection (2) if APRA has reason to believe that: (a) a subsidiary of the body corporate has contravened a provision of: (i) this Act; or (ii) the Financial Sector (Collection of Data) Act 2001; or (b) a subsidiary of the body corporate has contravened a prudential requirement regulation or a prudential standard; or (c) a subsidiary of the body corporate is likely to contravene this Act, a prudential requirement regulation, a prudential standard or the Financial Sector (Collection of Data) Act 2001; or (d) the direction is in respect of a subsidiary of the body corporate and is necessary in the interests of: (i) if the body corporate is an ADI—depositors of the ADI; or (ii) if the body corporate is an authorised NOHC—depositors of any ADI that is a subsidiary of the NOHC; or (e) a subsidiary of the body corporate is, or is about to become, unable to meet the subsidiary's liabilities; or (f) there is, or there might be, a material risk to the security of the assets of a subsidiary of the body corporate; or (g) there has been, or there might be, a material deterioration in the financial condition of a subsidiary of the body corporate; or (h) a subsidiary of the body corporate is conducting the subsidiary's affairs in an improper or financially unsound way; or (j) a subsidiary of the body corporate is conducting the subsidiary's affairs in a way that may cause or promote instability in the Australian financial system; or (k) a subsidiary of the body corporate is conducting the subsidiary's affairs in a way that may cause it to be unable to continue to supply services to: (i) if the body corporate is an ADI—the ADI; or (ii) if the body corporate is an authorised NOHC—any ADI that is a subsidiary of the NOHC; or (l) the direction is in respect of a subsidiary of the body corporate and the failure to issue a direction would materially prejudice the interests of: (i) if the body corporate is an ADI—depositors of the ADI; or (ii) if the body corporate is an authorised NOHC—depositors of any ADI that is a subsidiary of the NOHC. (1AB) However, APRA can only make a direction as a result of a ground referred to in paragraph (1AA)(a), (b), (c), (e), (f), (g), (h) or (k) if APRA considers that the direction is reasonably necessary for one or more prudential matters relating to the body corporate. (1AC) APRA may give a body corporate that is a subsidiary of an ADI or of an authorised NOHC a direction of a kind specified in subsection (2) if: (a) APRA has given the ADI or authorised NOHC a direction under subsection (1AA) because one or more of the grounds referred to in that subsection have been satisfied in respect of the subsidiary; or (b) APRA may give the ADI or authorised NOHC a direction under subsection (1AA) because one or more of the grounds referred to in that subsection have been satisfied in respect of the subsidiary. (1AD) APRA cannot give a direction under subsection (1AC) to a body corporate of a kind specified in regulations (if any) made for the purposes of this subsection. (1AE) Subsections (1), (1AA) and (1AC) do not limit each other. 35 Paragraph 11CA(1A)(b) Repeal the paragraph, substitute: (b) specify: (i) in the case of a direction under subsection (1AC)—the ground referred to in subsection (1AA) as a result of which the direction is given; or (ii) otherwise—the ground referred to in subsection (1) or (1AA) as a result of which the direction is given. 36 Subsection 11CA(1B) Repeal the subsection, substitute: (1B) In deciding whether to give a direction under subsection (1), (1AA) or (1AC) to a body corporate, APRA may disregard any external support for the body corporate. 37 Paragraph 11CA(2)(p) Repeal the paragraph, substitute: (p) to make changes to the body corporate's systems, business practices or operations; (q) to reconstruct, amalgamate or otherwise alter all or part of any of the following: (i) the business, structure or organisation of the body corporate; (ii) the business, structure or organisation of the group constituted by the body corporate and its subsidiaries; (r) to do, or to refrain from doing, anything else in relation to the affairs of the body corporate. 38 After subsection 11CA(2A) Insert: (2AAA) The kinds of direction that may be given as mentioned in subsection (2) are not limited by any other provision in this Part (apart from subsection (2AA)). (2AAB) The kinds of direction that may be given as mentioned in a particular paragraph of subsection (2) are not limited by any other paragraph of that subsection. 39 Subsection 11CA(2B) Omit "paragraph (2)(p)", substitute "paragraph (2)(r)". 40 Paragraph 11CA(2B)(a) Omit "in a way that", substitute "in a way so as to ensure that". 41 Paragraph 11CA(2B)(b) Omit "in a way that", substitute "in a way that has the result that". 42 Subsection 11CA(5A) Repeal the subsection, substitute: (5A) Part VI applies to a decision to give a direction: (a) under subsection (1) as a result of the ground referred to in paragraph (1)(a), (b), (c), (d) or (e); or (b) under subsection (1AA) as a result of the ground referred to in paragraph (1AA)(a), (b), (c) or (d); or (c) under subsection (1AC) as a result of the ground referred to in paragraph (1AC)(a) or (b), to the extent that the paragraph relates to a ground referred to in paragraph (1AA)(a), (b), (c) or (d). 43 Subsections 11CD(1), (1A) and (2) Repeal the subsections, substitute: (1) This section applies if a body corporate is party to a contract, whether the proper law of the contract is: (a) Australian law (including the law of a State or Territory); or (b) law of a foreign country (including the law of part of a foreign country). (1A) None of the matters mentioned in subsection (1B) allows the contract, or a party to the contract (other than the body corporate), to do any of the following: (a) deny any obligations under the contract; (b) accelerate any debt under the contract; (c) close out any transaction relating to the contract; (d) enforce any security under the contract. This subsection has effect subject to subsections (2) and (3) of this section and section 31B. (1B) The matters are as follows: (a) the body corporate being given a direction by APRA under Subdivision A or B or section 29; (b) if the body corporate is a member of a relevant group of bodies corporate—another member of the group being given a direction by APRA under Subdivision A or B or section 29. (2) If the body corporate is prevented from fulfilling its obligations under the contract because of a direction under Subdivision A, other than a direction under paragraph 11CA(2)(m), or because of a direction under section 29, the other party or parties to the contract are, subject to any orders made under subsection (3), relieved from obligations owed to the body corporate under the contract. 44 Subsection 11CE(1) Omit "ADI or authorised NOHC", substitute "ADI, authorised NOHC or other body corporate". 45 Paragraph 11CE(3)(a) Omit "a particular ADI or authorised NOHC", substitute "a particular ADI, authorised NOHC or other body corporate". 46 Paragraph 11CE(3)(b) Omit "any ADIs or authorised NOHCs", substitute "any ADIs, authorised NOHCs or other bodies corporate". 47 Subsection 11CE(4) Omit "any ADI or authorised NOHC", substitute "any ADI, authorised NOHC or other body corporate". 48 Section 11CF Repeal the section. 49 Subsection 11CG(1) Omit "An ADI or an authorised NOHC", substitute "An ADI, authorised NOHC or other body corporate". 50 Subsection 11CG(1A) Omit "an ADI or an authorised NOHC", substitute "an ADI, authorised NOHC or other body corporate". 51 Subsection 11CG(1A) Omit "ADI or NOHC" (wherever occurring), substitute "ADI, NOHC or other body corporate". 52 Subsection 11CG(2) Omit "an ADI or an authorised NOHC", substitute "an ADI, authorised NOHC or other body corporate". 53 Subsection 11CG(2) Omit "ADI or NOHC" (wherever occurring), substitute "ADI, NOHC or other body corporate". 54 Subsection 11CG(2A) Omit "an ADI or an authorised NOHC", substitute "an ADI, authorised NOHC or other body corporate". 55 Subsection 11CG(2A) Omit "ADI or NOHC", substitute "ADI, NOHC or other body corporate". 56 At the end of Division 1BA of Part II Add: Subdivision D—Secrecy and disclosure provisions relating to all directions 11CH APRA may determine that a direction is covered by secrecy provision (1) This section applies if APRA has given an entity (the directed entity) a direction under this Act. (2) APRA may determine, in writing, that the direction is covered under this subsection if APRA considers that the determination is necessary to protect the depositors of any ADI or to promote financial system stability in Australia. Note: For repeal of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (3) APRA must give the directed entity a copy of the determination as soon as practicable after making it. (4) An instrument under subsection (2) is not a legislative instrument. (5) If APRA makes a determination under subsection (2), APRA must consider whether it is appropriate in the circumstances to also make a determination under either or both of subsections 11CK(2) and 11CK(5). 11CI Secrecy relating to directions (1) A person commits an offence if: (a) APRA has given an entity (the directed entity) a direction under this Act; and (b) the direction is covered by a determination under subsection 11CH(2); and (c) the person is, or has been, covered by subsection (2) of this section in relation to the direction; and (d) the person discloses information; and (e) the information reveals the fact that the direction was made. Penalty: Imprisonment for 2 years. (2) A person is covered by this subsection in relation to the direction if the person is: (a) the directed entity; or (b) an officer, employee or contractor of the directed entity at a time on or after APRA gave the directed entity the direction; or (c) any other person who, because of his or her employment, or in the course of that employment, has acquired information that reveals the fact that the direction was made. Exception (3) Subsection (1) does not apply if: (a) the disclosure is authorised by section 11CJ, 11CK, 11CL, 11CM, 11CN or 11CO; or (b) the disclosure is required by an order or direction of a court or tribunal. Note: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). 11CJ Disclosure of publicly available information A person covered by subsection 11CI(2) in relation to a direction may disclose information that reveals the fact that the direction was made, to the extent that the information has already been lawfully made available to the public. 11CK Disclosure allowed by APRA (1) A person covered by subsection 11CI(2) in relation to a direction may disclose information that reveals the fact that the direction was made if: (a) a determination under subsection (2) or (5) allows the disclosure by the person; and (b) if APRA has included conditions in the determination—those conditions are satisfied. Determinations relating to specified person (2) APRA may, in writing, make a determination allowing: (a) a specified person covered by subsection 11CI(2) in relation to a specified direction; or (b) a specified person covered by subsection 11CI(2) in relation to a direction that is in a specified class of directions; to disclose specified information in relation to the direction. (3) An instrument under subsection (2) is not a legislative instrument. (4) APRA must give a copy of the determination as soon as practicable after making it to: (a) the directed entity; and (b) the person specified, or each person specified, in the determination. Determinations relating to specified class of persons (5) APRA may, by legislative instrument, make a determination allowing a specified class of persons covered by subsection 11CI(2) in relation to a direction that is in a specified class of directions to disclose: (a) specified kinds of information in relation to the direction; or (b) any kind of information in relation to the direction. Conditions in determinations (6) APRA may include conditions in a determination under subsection (2) or (5) that relate to any of the following: (a) the kind of entities to which the disclosure may be made; (b) the way in which the disclosure is to be made; (c) any other matter that APRA considers appropriate. 11CL Disclosure to legal representative for purpose of seeking legal advice A person covered by subsection 11CI(2) in relation to a direction may disclose information that reveals the fact that the direction was made if: (a) the disclosure is to the person's legal representative; and (b) the purpose of the person making the disclosure is for the legal representative to provide legal advice, or another legal service, in relation to the direction. 11CM Disclosure allowed by APRA Act secrecy provision (1) A person covered by subsection 11CI(2) in relation to a direction may disclose information that reveals the fact that the direction was made if: (a) the person is: (i) an APRA member (within the meaning of subsection 56(1) of the Australian Prudential Regulation Authority Act 1998); or (ii) an APRA staff member (within the meaning of that subsection); or (iii) a Commonwealth officer (within the meaning of the Crimes Act 1914) who is covered by paragraph (c) of the definition of officer in subsection 56(1) of the Australian Prudential Regulation Authority Act 1998; and (b) the information is protected information (within the meaning of subsection 56(1) of that Act), or is contained in a protected document (within the meaning of that subsection); and (c) the disclosure is in accordance with subsection 56(3), (4), (5), (5AA), (6), (6A), (7), (7A), (7B) or (7C) of that Act. Relationship to APRA Act secrecy provision (2) Disclosure of information in relation to a direction is not an offence under section 56 of the Australian Prudential Regulation Authority Act 1998 if the disclosure is authorised by section 11CJ, 11CK, 11CL, 11CN or 11CO. 11CN Disclosure in circumstances set out in the regulations A person covered by subsection 11CI(2) in relation to a direction may disclose information that reveals the fact that the direction was made, if the disclosure is made in circumstances (if any) set out in the regulations. 11CO Disclosure for purpose A person covered by subsection 11CI(2) (the relevant person) in relation to a direction may disclose information that reveals the fact that the direction was made if: (a) another person covered by subsection 11CI(2) in relation to the direction disclosed that information to the relevant person for a particular purpose in accordance with section 11CK, 11CL, 11CM or 11CN, or in accordance with a previous operation of this section; and (b) the disclosure by the relevant person is for the same purpose. 11CP Exceptions operate independently Sections 11CJ, 11CK, 11CL, 11CM, 11CN and 11CO do not limit each other. 57 Section 11E (Heading) Repeal the heading, substitute: 11E Limited application of Division 2 etc. to foreign ADIs 58 Subsection 11E(1) Repeal the subsection, substitute: (1) The provisions listed in subsection (1A) do not apply in relation to: (a) business of a foreign ADI (other than Australian business assets and liabilities); or (b) the management of a foreign ADI, to the extent that the management relates to such business of the foreign ADI. (1A) The provisions are as follows: (a) sections 12, 13BA and 13C, and Subdivision B of Division 2 (statutory management); (b) subsections 13A(1) to (2), to the extent that those subsections relate to statutory management; (c) sections 62B, 62C, 62D and 62E. (1B) The following provisions do not apply in relation to a foreign ADI: (a) Division 2 (apart from the provisions in that Division listed in subsection (1A)); (b) Division 2AA. 59 At the end of section 11E Add: (3) In this section: asset has the same meaning as in the Financial Sector (Transfer and Restructure) Act 1999. Australian business assets and liabilities, of a foreign ADI, means the following: (a) the assets and liabilities of the foreign ADI in Australia; (b) any other assets and liabilities of the foreign ADI that: (i) are related to its operations in Australia; and (ii) if regulations are made for the purposes of this subparagraph—are of a kind specified in those regulations. liability has the same meaning as in the Financial Sector (Transfer and Restructure) Act 1999. 60 After section 11E Insert: 11EA APRA's power to apply for foreign ADI to be wound up (1) APRA may apply to the Federal Court of Australia for an order that a foreign ADI be wound up if APRA considers that any of the following requirements are satisfied: (a) the foreign ADI is unable to meet its liabilities in Australia, or in one or more foreign countries, as and when they become due and payable; (b) an application for the appointment of an external administrator of the foreign ADI, or for a similar procedure in respect of the foreign ADI, has been made in a foreign country; (c) an external administrator has been appointed to the foreign ADI, or a similar appointment has been made in respect of the foreign ADI, in a foreign country. (2) To avoid doubt, subsection (1) applies whether or not an ADI statutory manager is in control of the Australian business assets and liabilities of the foreign ADI. (3) The winding up of the foreign ADI is to be conducted in accordance with the Corporations Act 2001. Note: See Part 5.7 of the Corporations Act 2001. (4) If APRA makes an application under subsection (1), APRA must inform the Minister of the application as soon as possible. 61 Section 11F Before "If", insert "(1)". 62 At the end of section 11F Add: (2) Subsection (1) does not constrain: (a) the exercise of powers or the performance of functions under this Act of a Banking Act statutory manager of a foreign ADI; or (b) an entity acting at the direction or request of a Banking Act statutory manager of a foreign ADI exercising powers or performing functions under this Act. 63 Section 13A (heading) Repeal the heading, substitute: 13A Consequences of inability or failure of ADI etc. to meet certain requirements 64 After paragraph 13A(1)(c) Insert: ; or (d) an external administrator has been appointed to a holding company of the ADI (or a similar appointment has been made in a foreign country in respect of such a holding company), and APRA considers that the appointment poses a significant threat to: (i) the operation or soundness of the ADI; or (ii) the interests of depositors of the ADI; or (iii) the stability of the financial system in Australia; or (e) if the ADI is a foreign ADI: (i) an application for the appointment of an external administrator of the foreign ADI, or for a similar procedure in respect of the foreign ADI, has been made in a foreign country; or (ii) an external administrator has been appointed to the foreign ADI, or a similar appointment has been made in respect of the foreign ADI, in a foreign country. 65 Subsection 13A(2) Repeal the subsection, substitute: (1B) APRA may take any of the actions mentioned in subsection (1C) in relation to a body corporate (the target body corporate) if: (a) the target body corporate is any of the following: (i) an authorised NOHC of an ADI (the relevant ADI); (ii) a subsidiary of an authorised NOHC of an ADI (also the relevant ADI); (iii) a subsidiary of an ADI (also the relevant ADI); and (b) the condition in subsection (1D), (1E) or (1F) is satisfied; and (c) the target body corporate is incorporated in Australia; and (d) the target body corporate is not a body corporate of a kind specified in regulations (if any) made for the purposes of this paragraph. (1C) The actions are as follows: (a) taking control of the business of the target body corporate; (b) appointing an administrator to take control of the business of the target body corporate. Note: For information about another circumstance in which APRA may take control of the business of the target body corporate, see section 65. (1D) The condition in this subsection is satisfied if: (a) either: (i) a Banking Act statutory manager has taken control of the relevant ADI; or (ii) the conditions in any or all of paragraphs (1)(a), (b), (c), (d) or (e) are satisfied in relation to the relevant ADI, and APRA intends that a Banking Act statutory manager will take control of the relevant ADI; and (b) APRA considers that the target body corporate provides services that are, or conducts business that is, essential to the capacity of the relevant ADI to maintain its operations. (1E) The condition in this subsection is satisfied if: (a) either: (i) a Banking Act statutory manager has taken control of the relevant ADI; or (ii) the conditions in any or all of paragraphs (1)(a), (b), (c), (d) or (e) are satisfied in relation to the relevant ADI, and APRA intends that a Banking Act statutory manager will take control of the relevant ADI; and (b) APRA considers that it is necessary for a Banking Act statutory manager to take control of the target body corporate, in order to facilitate the resolution of any of the following: (i) the relevant ADI; (ii) an authorised NOHC of the relevant ADI; (iii) a relevant group of bodies corporate of which the relevant ADI is a member; (iv) a particular member or particular members of such a group. (1F) The condition in this subsection is satisfied if: (a) there is an external administrator of the target body corporate, or APRA considers that, in the absence of external support: (i) the target body corporate may become unable to meet its obligations; or (ii) the target body corporate may suspend payment; and (b) APRA considers that it is necessary to take an action mentioned in subsection (1C) in respect of the target body corporate in order to enable the relevant ADI to maintain its operations, or in order to facilitate the resolution of any of the following: (i) the relevant ADI; (ii) an authorised NOHC of the relevant ADI; (iii) a relevant group of bodies corporate of which the relevant ADI is a member; (iv) a particular member or particular members of such a group. (2) If: (a) APRA is in control of a body corporate's business under this Subdivision—APRA is the Banking Act statutory manager of the body corporate; or (b) an administrator appointed by APRA is in control of a body corporate's business under this Subdivision—the administrator is the Banking Act statutory manager of the body corporate. Note: This section and other provisions relating to statutory management do not apply to the aspects described in subsection 11E(1) of the business and management of a foreign ADI. (2A) If APRA appoints 2 or more Banking Act statutory managers of a body corporate, or appoints one or more additional Banking Act statutory managers of a body corporate: (a) the functions and powers under this Act of a Banking Act statutory manager of the body corporate may be performed or exercised by: (i) all of the Banking Act statutory managers of the body corporate acting jointly; or (ii) each of the Banking Act statutory managers of the body corporate acting individually (except to the extent (if any) specified in a notice given by APRA under paragraph (b)); and (b) at the time of appointment, APRA may give all of the Banking Act statutory managers of the body corporate a notice in writing for the purposes of subparagraph (a)(ii), specifying limits or conditions on their ability to perform functions and exercise powers individually; and (c) treat a reference in this Act to a Banking Act statutory manager as being a reference to whichever one or more of those Banking Act statutory managers the case requires. 66 Paragraph 13A(3)(a) Omit "section 16AI", substitute "section 16AI or 16AIC". 67 Subsection 13A(3) (note) Repeal the note. 68 After subsection 13A(3) Insert: (3AA) Subsection (3) does not constrain: (a) the exercise of powers or the performance of functions under this Act of a Banking Act statutory manager of an ADI; or (b) an entity acting at the direction or request of a Banking Act statutory manager of an ADI exercising powers or performing functions under this Act. 69 Subsection 13A(7) Omit "an ADI", substitute "a body corporate". 70 Subsection 13A(7) Omit "other ADI", substitute "other body corporate". 71 Section 13BA (heading) Repeal the heading, substitute: 13BA Start of control of body corporate's business by Banking Act statutory manager 72 Subsection 13BA(1) Omit "an ADI statutory manager", substitute "a Banking Act statutory manager". 73 Subsection 13BA(1) Omit "an ADI's business", substitute "a body corporate's business". 74 Subsection 13BA(1) Omit "give the ADI", substitute "give the body corporate". 75 Subsection 13BA(1) Omit "the ADI statutory manager", substitute "the Banking Act statutory manager". 76 Subsection 13BA(2) Omit "An ADI statutory manager takes control of an ADI's business", substitute "A Banking Act statutory manager takes control of a body corporate's business". 77 Section 13BA(2) Omit "the ADI statutory manager" (wherever occurring), substitute "the Banking Act statutory manager". 78 Section 13C (heading) Repeal the heading, substitute: 13C Banking Act statutory managers—termination of control 79 Subsection 13C(1) Repeal the subsection, substitute: Conditions necessary for termination of control (1) If APRA assumes control of a body corporate's business or appoints an administrator of a body corporate's business, APRA must ensure that either it or an administrator of the body corporate's business has control of the body corporate's business until: (a) APRA considers that it is no longer necessary for it or an administrator to remain in control of the body corporate's business; or (b) APRA has applied for the body corporate to be wound up. A termination of control that is permitted under this section is called an ultimate termination of control. Note: This provision does not prevent a change, or changes, between control of a body corporate's business by APRA and an administrator or between administrators. 80 Subsection 13C(2) Omit "an ADI statutory manager of an ADI's business", substitute "a Banking Act statutory manager of a body corporate's business". 81 Paragraph 13C(2)(a) Omit "of the ADI", substitute "of the body corporate". 82 Paragraph 13C(2)(a) Omit "the ADI's" (wherever occurring), substitute "the body corporate's". 83 Paragraph 13C(2)(a) Omit "ADI statutory manager", substitute "Banking Act statutory manager". 84 Paragraphs 13C(2)(b) and (c) Omit "the ADI", substitute "the body corporate". 85 Subsection 13C(3) Omit "an ADI's business by an ADI statutory manager", substitute "a body corporate's business by a Banking Act statutory manager". 86 Subsection 13C(4) Omit "the ADI statutory manager", substitute "the Banking Act statutory manager". 87 Subsection 13C(5) Omit "the ADI statutory manager's", substitute "the Banking Act statutory manager's". 88 Subsection 13C(5) Omit "the ADI's" (wherever occurring), substitute "the body corporate's". 89 Subsection 13C(5) (note) Omit "an ADI statutory manager is in control of an ADI's business", substitute "a Banking Act statutory manager is in control of a body corporate's business". 90 Section 13D Repeal the section, substitute: 13D Who this Subdivision applies to (1) This Subdivision applies to an ADI that: (a) is a company that: (i) is registered under the Corporations Act 2001; and (ii) has a share capital; and (b) does not have a Banking Act statutory manager. (2) Subsections (3) and (4) apply if: (a) APRA has given a recapitalisation direction to an ADI under subsection 13E(1) (the primary recapitalisation direction); and (b) the ADI is a subsidiary of a NOHC/NOHC subsidiary; and (c) the NOHC/NOHC subsidiary is a company that: (i) is registered under the Corporations Act 2001; and (ii) has a share capital; and (d) the NOHC/NOHC subsidiary does not have a Banking Act statutory manager. (3) This Subdivision applies to the NOHC/NOHC subsidiary in the same way that it does to an ADI. (4) However, disregard the following provisions in applying this Subdivision to the NOHC/NOHC subsidiary: (a) subsection 13E(1); (b) subsection 13F(1). (5) In this section: NOHC/NOHC subsidiary means a body corporate that is any of the following: (a) an authorised NOHC; (b) a subsidiary of an authorised NOHC. 91 After subsection 13E(1) Insert: (1A) Subsection (1B) applies if subsections 13D(3) and (4) apply to a NOHC/NOHC subsidiary because of a primary recapitalisation direction given to an ADI (as mentioned in subsection 13D(2)). (1B) For the purposes of facilitating compliance with the primary recapitalisation direction, APRA may give the NOHC/NOHC subsidiary a direction (also a recapitalisation direction) that requires the NOHC/NOHC subsidiary to do anything that is specified in the direction. 92 At the end of section 13E Add: (5) A recapitalisation direction may deal with the time by which, or period during which, it is to be complied with. (6) APRA may, by notice in writing to the ADI, vary the recapitalisation direction if, at the time of the variation, it considers that the variation is necessary and appropriate. (7) The direction has effect until APRA revokes it by notice in writing to the ADI. APRA may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate. 93 After subsection 13F(1) Insert: (1A) If the recapitalisation direction is a direction to a NOHC/NOHC subsidiary under subsection 13E(1B), the direction may direct the NOHC/NOHC subsidiary to do any of the following: (a) issue: (i) shares, or rights to acquire shares, in the NOHC/NOHC subsidiary; or (ii) other capital instruments in the NOHC/NOHC subsidiary of a kind specified in the direction; (b) acquire: (i) shares, or rights to acquire shares, in the ADI mentioned in subsection 13E(1A); or (ii) other capital instruments in the ADI mentioned in subsection 13E(1A) of a kind specified in the direction; (c) acquire: (i) shares, or rights to acquire shares, in a specified body corporate covered by subsection (1B); or (ii) other capital instruments in a specified body corporate covered by subsection (1B), of a kind specified in the direction. (1B) This subsection covers a body corporate if: (a) the body corporate is a subsidiary of the NOHC/NOHC subsidiary; and (b) the ADI is a subsidiary of the body corporate. (1C) Without limiting the generality of subsections (1), (1A) and (2), but subject to subsection (3), a direction referred to in those subsections may: (a) deal with some only of the matters referred to in those subsections; or (b) deal with a particular class or particular classes of those matters; or (c) make different provision with respect to different matters or different classes of matters. 94 Subsection 13F(2) Omit "paragraph (1)(a)", substitute "paragraph (1)(a) or subparagraph (1A)(a)(i), (1A)(b)(i) or (1A)(c)(i)". 95 Subsection 13F(3) Omit "paragraph (1)(b)", substitute "paragraph (1)(b) or subparagraph (1A)(a)(ii), (1A)(b)(ii) or (1A)(c)(ii)". 96 Subsection 13G(3) (heading) Repeal the heading, substitute: Issue or acquisition of shares etc. despite other laws etc. 97 Subsection 13G(3) After "issue", insert "or acquire". 98 Paragraph 13G(3)(a) After "the Corporations Act 2001", insert "(without limiting the scope of section 70B of this Act)". 99 Paragraph 13G(3)(d) Omit "(as defined in section 761A of the Corporations Act 2001) of a financial market (as defined in that section)", substitute "of a financial market". 100 After subsection 13H(1) Insert: (1A) If the recapitalisation direction is a direction to a NOHC/NOHC subsidiary under subsection 13E(1B), treat the reference in paragraph (1)(a) to "the depositors with the ADI" as being a reference to "the depositors with the ADI mentioned in subsection 13E(1A)". 101 At the end of section 13H Add: (4) If the recapitalisation direction is a direction to a NOHC/NOHC subsidiary under subsection 13E(1B), treat the references in paragraph (3)(c) to "the ADI" as being a reference to "the NOHC/NOHC subsidiary mentioned in subsection 13E(1B)". 102 Section 13N Repeal the section, substitute: 13N Recapitalisation direction not grounds for denial of obligations (1) This section applies if a body corporate is party to a contract, whether the proper law of the contract is: (a) Australian law (including the law of a State or Territory); or (b) law of a foreign country (including the law of part of a foreign country). (2) None of the matters mentioned in subsection (3) allows the contract, or a party to the contract (other than the body corporate), to do any of the following: (a) deny any obligation under the contract; (b) accelerate any debt under the contract; (c) close out any transaction relating to the contract; (d) enforce any security under the contract. (3) The matters are as follows: (a) the body corporate being subject to a recapitalisation direction; (b) if the body corporate is a member of a relevant group of bodies corporate—another member of the group being subject to a recapitalisation direction. 103 Subsection 13P(9) Repeal the subsection. 104 Subdivision B of Division 2 of Part II (heading) Repeal the heading, substitute: Subdivision B—Provisions dealing with control of a body corporate's business by a Banking Act statutory manager 105 Section 14A (heading) Repeal the heading, substitute: 14A Banking Act statutory manager's powers and functions 106 Subsection 14A(1) (heading) Repeal the heading, substitute: Banking Act statutory manager's powers and functions include powers and functions of board 107 Subsection 14A(1) Omit "An ADI statutory manager has the powers and functions of the members of the board of directors of the ADI", substitute "A Banking Act statutory manager of a body corporate has the powers and functions of the members of the board of directors of the body corporate". 108 Subsection 14A(1) (note) Omit "an ADI statutory manager", substitute "a Banking Act statutory manager". 109 Subsection 14A(1) (note) Omit "an ADI,", substitute "a body corporate,". 110 Subsection 14A(1) (note) Omit "the ADI", substitute "the body corporate". 111 Subsection 14A(2) (heading) Repeal the heading, substitute: Banking Act statutory manager's power to obtain information 112 Subsection 14A(2) Omit "An ADI statutory manager may, for the purposes of this Division, require a person who has, at any time, been an officer of the ADI to give the ADI statutory manager any information relating to the business of the ADI that the ADI statutory manager requires.", substitute "A Banking Act statutory manager of a body corporate may, for the purposes of this Division, require a person who has, at any time, been an officer of the body corporate to give the statutory manager any information relating to the business of the body corporate that the statutory manager requires.". 113 Subsection 14A(2A) Omit "officer of an ADI", substitute "officer of a body corporate". 114 Paragraph 14A(2A)(a) Omit "an ADI statutory manager in relation to the ADI", substitute "a Banking Act statutory manager of the body corporate". 115 Paragraph 14A(2A)(b) Omit "ADI statutory manager", substitute "Banking Act statutory manager". 116 Subsection 14A(5) (heading) Repeal the heading, substitute: Banking Act statutory manager's power to sell whole or part of body corporate's business 117 Subsection 14A(5) Omit "An ADI statutory manager", substitute "A Banking Act statutory manager". 118 Subsection 14A(5) Omit "the ADI's business", substitute "the body corporate's business". 119 Subsection 14A(5) Omit "the ADI statutory manager", substitute "the Banking Act statutory manager". 120 Subsection 14A(5A) (heading) Repeal the heading, substitute: Banking Act statutory manager to alter body corporate's constitution etc. 121 Subsection 14A(5A) Omit "An ADI statutory manager may, if the ADI concerned", substitute "A Banking Act statutory manager may, if the body corporate concerned". 122 Subsection 14A(5A) Omit "the ADI's constitution", substitute "the body corporate's constitution". 123 Paragraph 14A(5A)(a) Omit "the ADI statutory manager's functions and duties, or the exercise of the ADI statutory manager's other powers, under this Division in relation to the ADI", substitute "the Banking Act statutory manager's functions and duties, or the exercise of the Banking Act statutory manager's other powers, under this Division in relation to the body corporate". 124 Subparagraph 14A(5A)(b)(i) Omit "the ADI", substitute "the relevant ADI mentioned in subsection 13A(1B)". 125 Subsection 14A(5B) Omit "An ADI statutory manager", substitute "A Banking Act statutory manager". 126 Subsection 14A(5B) Omit "subsection (5A)", substitute "subsection (5) or (5A)". 127 Paragraph 14A(5B)(a) After "the Corporations Act 2001", insert "(without limiting the scope of section 70B of this Act)". 128 Paragraph 14A(5B)(b) Omit "the ADI's", substitute "the body corporate's". 129 Paragraphs 14A(5B)(c) and (d) Omit "the ADI", substitute "the body corporate". 130 Paragraph 14A(5B)(d) Omit "(as defined in section 761A of the Corporations Act 2001) of a financial market (as defined in that section)", substitute "of a financial market". 131 After section 14A Insert: 14AAA Safeguards on exercise of Banking Act statutory manager's powers and functions (1) Despite anything else in this Subdivision, a Banking Act statutory manager of a body corporate (the body corporate under management) may not perform a function or exercise a power under section 14A if: (a) either or both of subsections (2) and (3) apply; and (b) the performance of the function or the exercise of the power is not for the purposes of: (i) an act of the Banking Act statutory manager under subsection 14AA(1); or (ii) Part 3 or 4 of the Financial Sector (Transfer and Restructure) Act 1999. (2) This subsection applies if: (a) the body corporate under management is not an ADI; and (b) the performance or the exercise would result in: (i) the provision of services by the body corporate under management to a related body corporate of the body corporate under management; or (ii) the provision of services by a related body corporate of the body corporate under management to the body corporate under management; or (iii) subject to subsection (4), the transfer of assets between the body corporate under management and another body corporate (otherwise than in the ordinary course of business); and (c) the performance or the exercise is not required or permitted by a binding arrangement that was in existence immediately before the Banking Act statutory manager started to be in control of the business of the body corporate under management; and (d) the provision or transfer is not for fair value. (3) This subsection applies if: (a) the body corporate under management is an authorised NOHC of an ADI; and (b) the performance or the exercise requires using funds of the body corporate or a subsidiary of the body corporate to increase the level of capital of the ADI to a specified level; and