Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 (44 of 1999)

Schedule 2   Amendment of the Banking Act 1959

35   Subsections 16B(2), (3) and (4)

Repeal the subsections, substitute:

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, 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.

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, 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.

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

(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.