1Short title
This Act may be cited as the Financial Sector (Transfer and Restructure) Act 1999.
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Bill homepage (APH)This Act may be cited as the Financial Sector (Transfer and Restructure) Act 1999.
This Act commences on the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999.
Without prejudice to its effect apart from this section, this Act also has the effect it would have if each reference to a body corporate were, by express provision, confined to a body corporate that is a corporation to which paragraph 51(xx) of the Constitution applies.
In this Act, the following words and expressions have the meanings set out below:
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.
approved netting arrangement has the same meaning as in the Payment Systems and Netting Act 1998.
approved section 20 statement means a statement given to APRA under subsection 20(1) in relation to which an approval under subsection 20(2) is in force.
approved section 30 statement means a statement given to APRA under subsection 30(1) in relation to which an approval under subsection 30(2) is in force.
APRA means the Australian Prudential Regulation Authority.
APRA member has the same meaning as in the Australian Prudential Regulation Authority Act 1998.
APRA staff member has the same meaning as in the Australian Prudential Regulation Authority Act 1998.
asset means property, or a right, of any kind, and includes:
any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property) of any kind; and
any chose in action; and
any right, interest or claim of any kind including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing); and
any CGT asset within the meaning of the Income Tax Assessment Act 1997.
Australian business assets and liabilities, of a body corporate that is a foreign ADI, a foreign general insurer or an eligible foreign life insurance company, means the following:
the assets and liabilities of the body corporate in Australia;
any other rights and liabilities of the body corporate that:
are related to its operations in Australia; and
if regulations are made for the purposes of this subparagraph—are of a kind specified in those regulations.
authorised APRA officer, when used in a particular provision of this Act, means a person authorised under subsection (2) to perform or exercise the functions or powers of an authorised APRA officer under that provision.
business in relation to a body, includes the assets and liabilities of the body.
certificate of transfer:
in relation to a voluntary transfer of business—means a certificate issued under section 18; and
in relation to a compulsory transfer of business—means a certificate issued under section 33; and
in relation to a compulsory transfer of shares—means a certificate issued under section 33.
close‑out netting contract has the same meaning as in the Payment Systems and Netting Act 1998.
compulsory transfer determination means:
a compulsory transfer of business determination; or
a compulsory transfer of shares determination.
compulsory transfer of business determination means a determination under section 25.
compulsory transfer of shares determination means a determination under section 25AA.
eligible foreign life insurance company has the same meaning as in the Life Insurance Act 1995.
established—a body is established in a State or Territory if:
it is registered under the Corporations Act 2001 and is taken, under section 119A or subsection 1378(4) of that Act, to be registered in that State or Territory; or
it is established by or under a law of that State or Territory.
foreign ADI has the same meaning as in the Banking Act 1959.
foreign general insurer has the same meaning as in the Insurance Act 1973.
general insurer has the meaning given by the Insurance Act 1973.
holding company, of a body corporate, means another body corporate of which the first body corporate is a subsidiary.
instrument includes a document and an oral agreement.
interest, in relation to land, includes:
a legal or equitable estate or interest in the land; or
a right, power or privilege over, or in relation to, the land.
internal transfer certificate has the meaning given by section 36L.
liability includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).
life insurance company means a body corporate that is registered under section 21 of the Life Insurance Act 1995.
market netting contract has the same meaning as in the Payment Systems and Netting Act 1998.
NOHC is short for non‑operating holding company.
non‑operating holding company, of a body corporate, has the same meaning as in the Banking Act 1959.
operating body has the meaning given by section 36B.
partial transfer means a transfer of business described in subsection 8(2).
receiving body means:
in relation to a transfer of business under Part 3 or 4—a body corporate to which another body corporate is to transfer, or has transferred, business under that Part; or
in relation to a transfer of shares under Part 4—a body corporate to which shares in another body corporate are to be transferred, or have been transferred under that Part; or
in relation to an internal transfer certificate (see section 36L)—a body corporate to which another body corporate is to transfer, or has transferred, assets or liabilities under the certificate.
regulated body means a body corporate that is:
an ADI; or
a life insurance company; or
a general insurer.
regulated business in relation to a regulated body, means:
for a body that is an ADI—the body’s banking business (within the meaning of the Banking Act 1959); or
for a body that is a life insurance company—the body’s life insurance business (within the meaning of the Life Insurance Act 1995); or
for a body that is a general insurer—the body’s insurance business (within the meaning of the Insurance Act 1973).
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 section 4A.
relevant group of bodies corporate has the meaning given by section 4B.
restructure approval has the meaning given by section 36B.
restructure arrangement has the meaning given by section 36B.
restructure instrument has the meaning given by section 36G.
statement of detail, in relation to a partial transfer, means a statement that satisfies the requirements of section 19.
subsidiary, of a body corporate, means a body corporate that is a subsidiary of the first body by virtue of Division 6 of Part 1.2 of the Corporations Act 2001.
total transfer means a transfer of business described in subsection 8(3).
transferred asset, in relation to a receiving body, means an asset that has become, under this Act, an asset of the receiving body.
transferred liability, in relation to a receiving body, means a liability that has become, under this Act, a liability of the receiving body.
transferring body means:
in relation to a transfer of business under Part 3 or 4—a body corporate that is to transfer, or that has transferred, business under that Part; or
in relation to a transfer of shares under Part 4—a body corporate, shares in which are to be transferred, or have been transferred, to another body corporate under that Part; or
in relation to an internal transfer certificate (see section 36L)—a body corporate that is to transfer, or that has transferred, assets or liabilities under the certificate.
transfer rules means rules in force under section 46.
voluntary transfer approval means an instrument of approval under section 11.
APRA may, in writing, authorise a person who is an APRA member, or an APRA staff member, to perform or exercise the functions or powers of an authorised APRA officer under a particular provision of this Act.
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.
For the purposes of this Act, each of the following constitutes a relevant group of bodies corporate:
a regulated body and its subsidiaries;
an authorised NOHC (within the meaning of the Banking Act 1959) and its subsidiaries;
an authorised NOHC (within the meaning of the Insurance Act 1973) and its subsidiaries;
a registered NOHC (within the meaning of the Life Insurance Act 1995) and its subsidiaries.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
This Act extends to every external Territory.
The Criminal Code applies to all offences against this Act.
To avoid doubt, sections 8 and 8A of the Australian Prudential Regulation Authority Act 1998 (which deal with APRA’s objectives and trans‑Tasman cooperation respectively) apply to the performance of functions and the exercise of powers by APRA under this Act.
This Act provides for 2 kinds of transfers of business of regulated bodies or bodies corporate related to regulated bodies:
voluntary transfers (these are transfers of business under Part 3); and
compulsory transfers (these are transfers of business under Part 4).
Either kind of transfer of business may be a partial transfer or a total transfer.
This Act also provides for compulsory transfers of shares in regulated bodies.
A transfer of business of a regulated body, or of a body corporate related to a regulated body, is a partial transfer if it relates to some, but not all, of the transferring body’s business (including any business that is not regulated business).
A transfer of business of a regulated body, or of a body corporate related to a regulated body, is a total transfer if it relates to all of the transferring body’s business (including any business that is not regulated business).
For a voluntary transfer of business to take effect, APRA must:
receive an application for the transfer from the regulated bodies concerned (the transferring body and the receiving body); and
approve the application in writing (the voluntary transfer approval); and
issue a certificate (the certificate of transfer) stating that the transfer is to take effect.
The transfer of business takes effect when the certificate of transfer comes into force.
The regulated bodies making the application cannot be general insurers (see section 10).
For a compulsory transfer of business to take effect, APRA must:
make a determination (the compulsory transfer of business determination) that there is to be a transfer of business between the bodies concerned (the transferring body and the receiving body); and
issue a certificate (the certificate of transfer) stating that the transfer is to take effect.
The transfer of business takes effect when the certificate of transfer comes into force.
For a compulsory transfer of shares to take effect, APRA must:
make a determination (the compulsory transfer of shares determination) that there is to be a transfer of shares in a body (the transferring body) to another body (the receiving body); and
issue a certificate (the certificate of transfer) stating that the transfer is to take effect.
The transfer of shares takes effect when the certificate of transfer comes into force.
Business of regulated bodies may also be transferred otherwise than under this Act, for example in accordance with section 63 of the Banking Act 1959 or Part 9 of the Life Insurance Act 1995.
Part 4A deals with proposals by ADI, general insurer or life insurance company groups to restructure the group (under Part 5.1 of the Corporations Act 2001).
For an overview of Part 4A, see section 36A.
For a voluntary transfer of business to take effect, APRA must:
receive an application for the transfer from the regulated bodies concerned (the transferring body and the receiving body) (see section 10); and
approve the application in writing (the voluntary transfer approval) (see section 11); and
issue a certificate (the certificate of transfer) stating that the transfer is to take effect (see section 18).
The regulated bodies making the application cannot be general insurers (see section 10).
APRA must make the voluntary transfer approval if specified criteria are met (see section 11).
The voluntary transfer approval may impose conditions to be complied with by the transferring body or the receiving body either before or after the certificate of transfer is issued (see section 16).
APRA may only issue the certificate of transfer if specified criteria are met. The certificate must specify when it comes into force (see section 18).
The transfer of business takes effect when the certificate of transfer comes into force (see section 22).
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