Part II
-
Provisions relating to the carrying on of banking business
Division 2A
-
Auditors of ADIs and authorised NOHCs and their subsidiaries
SECTION 16B
Auditors to give information to APRA on request
Duty to give information when required
(1)
APRA may, by notice in writing, require a person who is, or has been, an auditor of:
(a)
an ADI; or
(b)
an authorised NOHC; or
(c)
a subsidiary of an ADI or authorised NOHC; or
(d)
if an ADI is a subsidiary of a foreign corporation (whether or not the ADI is itself a foreign ADI):
(i)
another subsidiary (a
relevant Australian-incorporated subsidiary
) of the foreign corporation (other than a body mentioned in paragraph (a), (b) or (c)), being a subsidiary that is incorporated in Australia; or
(ii)
another subsidiary (a
relevant foreign-incorporated subsidiary
) of the foreign corporation (other than a body mentioned in paragraph (a), (b) or (c)), being a subsidiary that is not incorporated in Australia and carries on business in Australia;
to provide information, or to produce books, accounts or documents, to APRA about the ADI, authorised NOHC, subsidiary of the ADI or authorised NOHC, or relevant Australian-incorporated subsidiary, or about the Australian operations of the relevant foreign-incorporated subsidiary, if APRA considers that the provision of the information, or the production of the books, accounts or documents, will assist APRA in performing its functions under this Act or the
Financial Accountability Regime Act 2023
.
History
S 16B(1) amended by No 68 of 2023, s 3 and Sch 1 item 25, by inserting
"
or the
Financial Accountability Regime Act 2023
"
, effective 15 September 2023. For application, saving and transitional provisions, see note under s
15D(1)
.
S 16B(1) substituted by No 116 of 2003, s 3 and Sch 2 item 13, effective 28 November 2003. S 16B(1) formerly read:
(1)
Duty to give information when required
APRA may, by notice in writing, require a person who is, or who has been, an auditor of:
(a)
an ADI; or
(b)
an authorised NOHC; or
(c)
a subsidiary of an ADI or authorised NOHC;
to provide information about the ADI, authorised NOHC or subsidiary to APRA if APRA considers that the provision of the information will assist APRA in performing its functions under this Act.
(1A)
A person commits an offence if:
(a)
under subsection
(1)
, APRA requires the person to provide information or to produce books, accounts or documents; and
(b)
the person fails to comply with the requirement.
(c)
(Repealed by No 154 of 2007)
Penalty: Imprisonment for 6 months.
Note 1:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection
4B(2)
of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection
4B(3)
of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
History
S 16B(1A) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 14, by substituting
"
Penalty
"
for
"
Maximum penalty
"
in the penalty, effective 27 July 2010.
S 16B(1A) amended by No 154 of 2007, s 3 and Sch 1 items 33 and 34, by substituting
"
requirement.
"
for
"
requirement; and
"
in para (b) and repealing para (c), effective 24 September 2007. Para (c) formerly read:
(c)
there is no order in force under section
11
determining that this subsection does not apply to the person.
S 16B(1A) amended by No 116 of 2003, s 3 and Sch 2 items 14 and 14A, by omitting
"
who is or has been an auditor of an ADI, an authorised NOHC, or a subsidiary of an ADI or an authorised NOHC,
"
before
"
is guilty of an offence if:
"
and inserting
"
or to produce books, accounts or documents
"
in para (a), effective 28 November 2003.
(2)
(Repealed by No 154 of 2007)
History
S 16B(2) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2008. S 16B(2) formerly read:
Additional duty to give information about ADIs
(2)
A person who is or has been an auditor of an ADI is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the ADI is insolvent, or there is a significant risk that the ADI will become insolvent; or
(ii)
the ADI has failed to comply with a prudential standard, a requirement under this Act or the regulations or the
Financial Sector (Collection of Data) Act 2001
, a direction under Division 1BA of Part II or a condition of its section
9
authority; or
(iii)
an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection 4B(2) of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
S 16B(2) amended by No 121 of 2001, s 3 and Sch 2 item 14, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
in para (a)(ii), effective 1 July 2002.
Act No 121 of 2001, s 3 and Sch 2 item 18, contained the following application provision:
Application
18(1)
The amendments apply to a financial sector entity (within the meaning of the
Financial Sector (Collection of Data) Act 2001
) that is a body referred to in subitem (2) only on and after the day on which the reporting standards determined under section 13 of that Act begin to apply under section 15 of that Act to a class or kind of financial sector entities in which that body is included.
18(2)
The bodies are:
(a)
ADIs; and
(b)
authorised NOHCs; and
(c)
subsidiaries of ADIs; and
(d)
subsidiaries of authorised NOHCs.
18(3)
Expressions used in subitem (2) have the same meanings as in the
Banking Act 1959
.
(3)
(Repealed by No 154 of 2007)
History
S 16B(3) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2007. S 16B(3) formerly read:
Additional duty to give information about authorised NOHCs
(3)
A person who is or has been an auditor of an authorised NOHC is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the NOHC is insolvent, or there is a significant risk that the NOHC will become insolvent; or
(ii)
the NOHC has failed to comply with a prudential standard, a requirement under this Act or the regulations or the
Financial Sector (Collection of Data) Act 2001
, a direction under Division 1BA of Part II or a condition of its NOHC authority; or
(iii)
an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection 4B(2) of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
S 16B(3) amended by No 121 of 2001, s 3 and Sch 2 item 14, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
in para (a)(ii), effective 1 July 2002.
Act No 121 of 2001, s 3 and Sch 2 item 18, contained the following application provision:
Application
18(1)
The amendments apply to a financial sector entity (within the meaning of the
Financial Sector (Collection of Data) Act 2001
) that is a body referred to in subitem (2) only on and after the day on which the reporting standards determined under section 13 of that Act begin to apply under section 15 of that Act to a class or kind of financial sector entities in which that body is included.
18(2)
The bodies are:
(a)
ADIs; and
(b)
authorised NOHCs; and
(c)
subsidiaries of ADIs; and
(d)
subsidiaries of authorised NOHCs.
18(3)
Expressions used in subitem (2) have the same meanings as in the
Banking Act 1959
.
(4)
(Repealed by No 154 of 2007)
History
S 16B(4) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2008. S 16B(4) formerly read:
Additional duty to give information about subsidiaries of ADIs or authorised NOHCs
(4)
A person who is or has been an auditor of a subsidiary of an ADI or an authorised NOHC (other than a subsidiary that itself is an ADI or an authorised NOHC) is guilty of an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or
(ii)
the subsidiary has failed to comply with a requirement under this Act or the regulations or the
Financial Sector (Collection of Data) Act 2001
; or
(iii)
if the subsidiary is a subsidiary of an ADI
-
an existing or proposed state of affairs may materially prejudice the interests of depositors of the ADI; or
(iv)
if the subsidiary is a subsidiary of an authorised NOHC
-
an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the NOHC; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection
4B(2)
of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection
4B(3)
of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
S 16B(4) amended by No 121 of 2001, s 3 and Sch 2 item 14, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
in para (a)(ii), effective 1 July 2002.
Act No 121 of 2001, s 3 and Sch 2 item 18, contained the following application provision:
Application
18(1)
The amendments apply to a financial sector entity (within the meaning of the
Financial Sector (Collection of Data) Act 2001
) that is a body referred to in subitem (2) only on and after the day on which the reporting standards determined under section 13 of that Act begin to apply under section 15 of that Act to a class or kind of financial sector entities in which that body is included.
18(2)
The bodies are:
(a)
ADIs; and
(b)
authorised NOHCs; and
(c)
subsidiaries of ADIs; and
(d)
subsidiaries of authorised NOHCs.
18(3)
Expressions used in subitem (2) have the same meanings as in the
Banking Act 1959
.
(4A)
(Repealed by No 154 of 2007)
History
S 16B(4A) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2007. S 16B(4A) formerly read:
Additional duty to give information about Australian-incorporated subsidiaries of certain foreign corporations
(4A)
A person who is or has been an auditor of a relevant Australian-incorporated subsidiary of a foreign corporation commits an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or
(ii)
the subsidiary has failed to comply with a requirement under this Act or the regulations or under the
Financial Sector (Collection of Data) Act 2001
; or
(iii)
an existing or proposed state of affairs may materially prejudice the interests of depositors of any ADI that is a subsidiary of the foreign corporation; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section 11 determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection 4B(2) of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
S 16B(4A) inserted by No 116 of 2003, s 3 and Sch 2 item 15, effective 28 November 2003.
(4B)
(Repealed by No 154 of 2007)
History
S 16B(4B) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2008. S 16B(4B) formerly read:
Additional duty to give information about foreign-incorporated subsidiaries of certain foreign corporations
(4B)
A person who is or has been an auditor of a relevant foreign-incorporated subsidiary of a foreign corporation commits an offence if:
(a)
the person has reasonable grounds for believing that:
(i)
the subsidiary is insolvent, or there is a significant risk that the subsidiary will become insolvent; or
(ii)
the subsidiary has failed to comply with a requirement under this Act or the regulations or under the
Financial Sector (Collection of Data) Act 2001
; or
(iii)
an existing or proposed state of affairs of the Australian operations of the subsidiary may materially prejudice the interests of depositors of any ADI that is a subsidiary of the foreign corporation; and
(b)
the person does not inform APRA of the matter; and
(c)
there is no order in force under section
11
determining that this subsection does not apply to the person.
Maximum penalty: Imprisonment for 6 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection
4B(2)
of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
If a body corporate is convicted of an offence against this subsection, subsection
4B(3)
of the
Crimes Act 1914
allows a court to impose a fine of up to 5 times the maximum fine worked out as mentioned in Note 2.
S 16B(4B) inserted by No 116 of 2003, s 3 and Sch 2 item 15, effective 28 November 2003.
(4C)
(Repealed by No 154 of 2007)
History
S16B(4C) repealed by No 154 of 2007, s 3 and Sch 1 item 159, effective 1 January 2008. S 16B(4C) formerly read:
Strict liability
(4C)
Strict liability applies to the physical elements in paragraphs (1A)(c), (2)(c), (3)(c), (4)(c), (4A)(c) and (4B)(c) that no orders making determinations of kinds referred to in the paragraphs concerned are in force under section
11
.
S 16B(4C) inserted by No 116 of 2003, s 3 and Sch 2 item 15, effective 28 November 2003.
Self-incrimination
(5)
(Repealed by No 154 of 2007)
History
S 16B(5) repealed by No 154 of 2007, s 3 and Sch 1 item 35, effective 24 September 2007. S 16B(5) formerly read:
(5)
An individual is not excused from complying with a requirement under this section to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(6)
(Repealed by No 154 of 2007)
History
S 16B(6) repealed by No 154 of 2007, s 3 and Sch 1 item 35, effective 24 September 2007. S 16B(6) formerly read:
(6)
If:
(a)
before giving information in compliance with a requirement under this section, an individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b)
giving the information might in fact tend to incriminate the individual or make the individual so liable;
the information given in compliance with the requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information.
(7)
(Repealed by No 154 of 2007)
History
S 16B(7) repealed by No 154 of 2007, s 3 and Sch 1 item 35, effective 24 September 2007. S 16B(7) formerly read:
(7)
Subsections (5) and (6) apply to the production of books, accounts or documents in a corresponding way to the way in which they apply to the giving of information.
S 16B(7) inserted by No 116 of 2003, s 3 and Sch 2 item 15A, effective 28 November 2003.
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