Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 (10 of 2018)
Schedule 1 Amendment of the Banking Act 1959
Part 1 Main amendments
Banking Act 1959
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 ofany ADIor 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 ofinformation 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.