Financial Institutions (Application of Laws) Act 1992

Financial Institutions (Application of Laws) Act 1992

An Act to make provision for a uniform legislative scheme for certain financial institutions and for other purposes and to amend the Acts Interpretation Act 1931

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Financial Institutions (Application of Laws) Act 1992 .

2.   Commencement

This Act commences on a day or days to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

AFIC means the Australian Financial Institutions Commission established by the AFIC Act ;

AFIC Act means the Australian Financial Institutions Commission Act 1992 of Queensland;

AFIC (Tasmania) Code means the provisions applying by reason of section 5 ;

AFIC (Tasmania) Regulations means the provisions applying by reason of section 6 ;

Appeals Tribunal means the Australian Financial Institutions Appeals Tribunal established under the AFIC Act ;

Financial Institutions Act means the Financial Institutions (Queensland) Act 1992 of Queensland;

financial institutions agreement has the same meaning as in the AFIC (Tasmania) Code ;

Financial Institutions (Tasmania) Code means the provisions applying by reason of section 8 ;

Financial Institutions (Tasmania) Regulations means the provisions applying by reason of section 9 ;

Ministerial Council means the Ministerial Council established under the financial institutions agreement;

scheme legislation of Tasmania means –

(a) this Act and the regulations under this Act; and

(b) the AFIC (Tasmania) Code ; and

(c) the AFIC (Tasmania) Regulations ; and

(d) the Financial Institutions (Tasmania) Code ; and

(e) the Financial Institutions (Tasmania) Regulations ;

SSA means –

(a) until a body is established as the State Supervisory Authority under the Tasmanian Office of Financial Supervision Act 1992 , the Commissioner for Corporate Affairs; or

(b) on the establishment of a body as the State Supervisory Authority under that Act, that body.

4.   References to Queensland Acts

In this Act, a reference to a Queensland Act includes a reference to –

(a) that Queensland Act as amended and in force for the time being; and

(b) an Act passed in substitution for that Act.

PART 2 - The AFIC (Tasmania) Code and the AFIC (Tasmania) Regulations

5.   Application in Tasmania of the AFIC Code

The AFIC Code set out in section 21 of the AFIC Act as in force for the time being –

(a) applies as a law of Tasmania; and

(b) as so applying, may be referred to as the AFIC (Tasmania) Code .

6.   Application of regulations

(1)  The regulations in force for the time being under Part 5 of the AFIC Act –

(a) apply as regulations in force for the purposes of the AFIC (Tasmania) Code ; and

(b) as so applying, may be referred to as the AFIC (Tasmania) Regulations .

(2)  Subject to subsection (3) , where regulations under Part 5 of the AFIC Act take effect from a specified day that is earlier than the day when they are notified in the Queensland Government Gazette under section 28A of the Acts Interpretation Act 1954 of Queensland, subsection (1) has effect, and is taken always to have had effect, as if those regulations had taken effect under the AFIC Act from the specified day.

(3)  To the extent that a provision of the AFIC (Tasmania) Regulations is taken because of a particular application of subsection (2) to have effect, or to have had effect, before the day of notification of the regulations referred to in that subsection, the provision –

(a) operates to the advantage of a person (other than Tasmania or an authority of Tasmania) by –

(i) increasing the person's rights; or

(ii) relieving the person of liabilities; and

(b) does not operate to the disadvantage of another person (other than Tasmania or an authority of Tasmania) by –

(i) decreasing the person's rights; or

(ii) imposing liabilities on the person.

(4)  Subsection (3) does not affect any other operation that the provision has because of subsection (2) or otherwise.

7.   Interpretation of some expressions in Code and Regulations

(1)  In the AFIC(Tasmania) Code and the AFIC (Tasmania) Regulations –

Corporations Law and Corporations Regulations have the meaning given by Part 3 of the Corporations (Tasmania) Act 1990 ;

Financial Institutions Code means the Financial Institutions (Tasmania) Code ;

Legislature of this State means the House of Assembly and the Legislative Council;

Magistrate has the same meaning as in the Magistrates Court Act 1987 ;

the Code means the AFIC (Tasmania) Code ;

this State means Tasmania.

(2)  The Corporations (Tasmania) Act 1990 and the applicable provisions of Tasmania within the meaning of that Act, are prescribed for the purposes of section 39 (2) of the AFIC (Tasmania) Code .

PART 3 - The Financial Institutions (Tasmania) Code and the Financial Institutions (Tasmania) Regulations

8.   Application in Tasmania of the Financial Institutions Code

The Financial Institutions Code set out in section 30 of the Financial Institutions Act as in force for the time being –

(a) applies as a law of Tasmania; and

(b) as so applying, may be referred to as the Financial Institutions (Tasmania) Code .

9.   Application of regulations

(1)  The regulations in force for the time being under Part 3 of the Financial Institutions Act –

(a) apply as regulations in force for the purposes of the Financial Institutions (Tasmania) Code ; and

(b) as so applying, may be referred to as the Financial Institutions (Tasmania) Regulations .

(2)  Subject to subsection (3) , where regulations under Part 3 of the Financial Institutions Act take effect from a specified day that is earlier than the day when they are notified in the Queensland Government Gazette under section 28A of the Acts Interpretation Act 1954 of Queensland, subsection (1) has effect, and is taken always to have had effect, as if those regulations had taken effect under the Financial Institutions Act from the specified day.

(3)  To the extent that a provision of the Financial Institutions (Tasmania) Regulations is taken because of a particular application of subsection (2) to have effect, or to have had effect, before the day of notification of the regulations referred to in that subsection, the provision –

(a) operates to the advantage of a person (other than Tasmania or an authority of Tasmania) by –

(i) increasing the person's rights; or

(ii) relieving the person of liabilities; and

(b) does not operate to the disadvantage of another person (other than Tasmania or an authority of Tasmania) by –

(i) decreasing the person's rights; or

(ii) imposing liabilities on the person.

(4)  Subsection (3) does not affect any other operation that the provision has because of subsection (2) or otherwise.

10.   Interpretation of some expressions in the Code and Regulations

(1)  In the Financial Institutions (Tasmania) Code and the Financial Institutions (Tasmania) Regulations –

AFIC Code means the AFIC (Tasmania) Code ;

continuing association and continuing association of credit unions means the Association of Tasmanian Credit Unions Limited;

continuing building society means the Bass and Equitable Building Society, the Household Building Society and the Pyramid Building Society;

continuing credit union means a society registered under the Co-operative Industrial Societies Act 1928 immediately before the commencement of the Financial Institutions (Tasmania) Code and carrying on business as a credit union;

continuing society means a continuing building society or continuing credit union;

Corporations Law and Corporations Regulations have the meaning given by Part 3 of the Corporations (Tasmania) Act 1990 ;

Legislature of this State means the House of Assembly and the Legislative Council;

Magistrate has the same meaning as in the Magistrates Court Act 1987 ;

previous law means –

(a) the Building Societies Act 1876 , the Building Societies Act 1887 , the Building Societies Act 1895 and the Building Societies Act 1958 ; or

(b) the Co-operative Industrial Societies Act 1928 ;

Registrar means the Commissioner for Corporate Affairs;

the Code means the Financial Institutions (Tasmania) Code ;

this State means Tasmania.

(2)  The Corporations (Tasmania) Act 1990 , and the applicable provisions of Tasmania within the meaning of that Act, are prescribed for the purposes of section 65 (4) of the Financial Institutions (Tasmania) Code .

PART 4 - Conferral of Functions and Powers

11.   Conferral of functions and powers on AFIC

AFIC has the functions and powers conferred or expressed to be conferred on it by or under the scheme legislation of Tasmania.

12.   Conferral of functions and powers on Tribunal

The Australian Financial Institutions Appeals Tribunal established under the AFIC Act has the functions and powers conferred or expressed to be conferred on it by or under the scheme legislation of Tasmania.

13.   

PART 5 - State Supervisory Authority

14.   State Supervisory Authority

Until a body is established as the State Supervisory Authority under the Tasmanian Office of Financial Supervision Act 1992 , the Commissioner for Corporate Affairs is the State Supervisory Authority for the purposes of the scheme legislation of Tasmania.

PART 6 - Application of Codes and Regulations to the Crown

15.   Crown is bound

(1)  The scheme legislation of Tasmania binds the Crown in right of Tasmania and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2)  Nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.

PART 7 - Imposition of Fees and Other Amounts

16.   Fees for chargeable matters

This section imposes the fees that the Financial Institutions (Tasmania) Regulations or the AFIC (Tasmania) Regulations prescribe.

17.   Levies, contributions and loans

(1)  This section imposes –

(a) the levy payable under sections 119 and 120 of the AFIC (Tasmania) Code by a financial institution; and

(b) the levy payable under section 95 of the Financial Institutions (Tasmania) Code by a financial body; and

(c) the contributions payable under section 98 of the Financial Institutions (Tasmania) Code by a credit union; and

(d) the support levy payable under section 99 of the Financial Institutions (Tasmania) Code by a credit union; and

(e) the compulsory loans payable under section 100 of the Financial Institutions (Tasmania) Code by a credit union.

(2)  An expression has in subsection (1) the meaning it would have if this section were in the AFIC (Tasmania) Code or the Financial Institutions (Tasmania) Code , as the case requires.

PART 8 - General

18.   Action to be taken by Premier under certain report

(1)  If the Premier is provided with a report under section 49 (6) of the AFIC (Tasmania) Code , the Premier must provide AFIC with a response to the report within 14 days of its receipt by the Premier.

(2)  If –

(a) the Premier does not provide AFIC with a response to the report within 14 days of the receipt of the report; or

(b) AFIC is of the opinion that it is necessary to do so –

AFIC may, by written notice given to the Premier, request the Premier to cause a copy of the report provided with the request to be laid before each House of Parliament within 14 sitting days of the receipt of the request.

(3)  The Premier must comply with the request.

(4)  If, at the time the Premier would otherwise be required to cause a copy of the report to be laid before each House of Parliament, a House is not sitting –

(a) the Premier must give a copy of the report to the Clerk of the House which is not sitting; and

(b) the Clerk of that House must cause a copy of the report to be laid before that House on its next sitting day; and

(c) for the purposes of its printing and publication, the report is to be taken to have been laid before that House, and to have been ordered to be printed by that House, when it is given to the Clerk.

18A.   Treasurer to lay copy of AFIC's annual report, &c., before Parliament

[Section 18A Inserted by No. 83 of 1993, s. 4 ]As soon as practicable after the board of directors of AFIC submits its report on the operations of AFIC during a particular financial year, together with financial statements for that financial year, to the Ministerial Council under section 116 (2) of the AFIC (Tasmania) Code , the Treasurer must cause to be laid before each House of Parliament –

(a) copies of the report and financial statements; and

(b) a copy of the report by the Auditor-General of Queensland, in relation to the financial statements, made under section 116 (4) of the AFIC (Tasmania) Code .

19.   Amendment of certain provisions

(1)  If, under the financial institutions agreement, the Ministerial Council –

(a) approves –

(i) a proposed amendment of the AFIC Act or the Financial Institutions Act ; or

(ii) regulations proposed to be made under the AFIC Act or the Financial Institutions Act (whether or not amending other regulations); and

(b) approves proposed regulations to be made under this Act in connection with the operation of the proposed amendment or regulations referred to in paragraph (a) –

the Governor may make regulations in accordance with that approval varying the effect in Tasmania of that Act or those regulations.

(2)  If regulations are made under subsection (1) , the AFIC Act or the Financial Institutions Act or regulations in force under either of those Acts have effect in Tasmania (as the case requires) as if varied in accordance with the regulations made under subsection (1) .

20.   Offences

Where under section 59 of the Financial Institutions (Tasmania) Code , it is provided that an offence against a relevant Code is punishable summarily, proceedings for that offence are to be heard and determined in accordance with the Justices Act 1959 , and any penalty imposed in respect of that offence may be enforced and recovered as provided by that Act.

21.   Aiding and abetting, attempts, &c.

Section 61 of the Financial Institutions (Tasmania) Code is not to be taken to affect the application in relation to any relevant Code of the provisions of the Criminal Code (other than section 3 (1) (b) , (c) and (d) and section 299 ).

22.   Fees, fines and penalties

[Section 22 Amended by No. 63 of 1995, s. 3 ]

(1)  Subject to subsection (2) , all fines, penalties and other money which, under or by virtue of the scheme legislation of Tasmania, are authorised or directed to be imposed on any person and are not, under that legislation, levies, contributions, loans or other amounts payable to a specified person must be paid to the State.

(2)  [Section 22 Subsection (2) inserted by No. 63 of 1995, s. 3 ]The Tasmanian Office of Financial Supervision may keep, for its own use, fees received by it for the lodging, filing, registration or issuing of a document, or for an act or service required or authorised to be performed by it, under the scheme legislation of Tasmania or any Act.

22A.   Notification in Gazette of certain enactments, &c.

[Section 22A Inserted by No. 83 of 1993, s. 5 ]

(1)  Where, by reason of the enactment of an Act of Queensland amending the AFIC Act or the Financial Institutions Act , the AFIC (Tasmania) Code or the Financial Institutions (Tasmania) Code is amended, the Treasurer must cause the enactment of the Act of Queensland to be notified in the Gazette within 28 days from the day on which the Royal Assent of the Act of Queensland is notified in the Queensland Government Gazette.

(2)  Where regulations are made under Part 5 of the AFIC Act or under Part 3 of the Financial Institutions Act , the Treasurer must cause the making of the regulations to be notified in the Gazette within 28 days from the day on which they are notified in the Queensland Government Gazette.

23.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Treasurer; and

(b) the Department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance.

PART 9 - Transitional, Consequential and Repeal

24.   Interpretation

In this Part, unless the contrary intention appears, a word or expression has the same meaning as in the Financial Institutions (Tasmania) Code .

25.   Mergers

(1)  This section applies where, immediately before the commencement of this section –

(a) 2 or more continuing societies of the same type had, by special resolution, applied for registration as an amalgamated society in accordance with section 47 of the Co-operative Industrial Societies Act 1928 and section 30 of the Building Societies Act 1876 ; and

(b) the Commissioner for Corporate Affairs had not made a decision in relation to that application.

(2)  Where this section applies –

(a) Division 1 of Part 7 of the Financial Institutions (Tasmania) Code applies in relation to the relevant application as if it were an application under section 293 of the Financial Institutions (Tasmania) Code for the merger of the societies; and

(b) for that purpose, each relevant continuing society is to be taken to have complied with section 293 of the Financial Institutions (Tasmania) Code .

26.   Voluntary transfers of engagements

(1)  This section applies where, immediately before the commencement of this section –

(a) a continuing society had decided, by special resolution, to transfer its engagements to another society of the same type in accordance with section 30B of the Building Societies Act 1876 ; and

(b) that transfer had not been effected.

(2)  Where this section applies –

(a) Division 1 of Part 7 of the Financial Institutions (Tasmania) Code applies in relation to the proposed transfer as if it were a transfer applied for under section 293 of the Financial Institutions (Tasmania) Code ; and

(b) for that purpose, each relevant society is to be taken to have complied with section 293 of the Financial Institutions (Tasmania) Code .

27.   Suspension

A suspension relating to a credit union registered under the Co-operative Industrial Societies Act 1928 in force under section 9 of that Act immediately before the commencement of this section is to be taken to be a suspension by the SSA under section 89 of the Financial Institutions (Tasmania) Code .

28.   Records

On and from the commencement of this section each record and each other document in relation to the affairs of a continuing society held by the Commissioner for Corporate Affairs for the purposes of the Building Societies Act 1876 and the Co-operative Industrial Societies Act 1928 –

(a) becomes the property of the SSA; and

(b) is to be taken to be held for the purposes of –

(i) the financial institutions legislation; or

(ii) any proceedings in relation to the society being conducted under the Building Societies Act 1876 and the Co-operative Industrial Societies Act 1928 .

29.   Special meetings and inquiries

(1)  Where, immediately before the commencement of this section, a special meeting of a continuing society had been called, but not held, under section 20 of the Co-operative Industrial Societies Act 1928 , section 87 of the Financial Institutions (Tasmania) Code applies in relation to the meeting as if it had been called in accordance with section 87 (1) of the Financial Institutions (Tasmania) Code .

(2)  Where, immediately before the commencement of this section, an inquiry in relation to the affairs of a continuing society under section 20 of the Co-operative Industrial Societies Act 1928 had commenced, but had not concluded, section 87 of the Financial Institutions (Tasmania) Code applies in relation to the inquiry as if it had been authorised in accordance with section 87 (1) of the Financial Institutions (Tasmania) Code .

30.   Investigations

(1)  Where, immediately before the commencement of this section, an investigation was being conducted into the affairs of a continuing society under the Building Societies Act 1876 or the Co-operative Industrial Societies Act 1928 , the investigationmay continue as an investigation under Part 10 of the Financial Institutions (Tasmania) Code .

(2)  Where this section applies –

(a) the SSA may appoint an investigator under section 348 of the Financial Institutions (Tasmania) Code for the purposes of continuing the investigation; and

(b) any document or other information properly obtained in the course of the investigation is to be taken to have been properly obtained in the course of the continuing investigation under the Financial Institutions (Tasmania) Code .

31.   Proceedings instituted under former Acts

(1)  The SSA may institute proceedings under the Building Societies Act 1876 (as if it had not been repealed by this Act) or the Co-operative Industrial Societies Act 1928 in relation to a continuing society.

(2)  For the purposes of subsection (1) , a reference in the Building Societies Act 1876 or the Co-operative Industrial Societies Act 1928 to the Commissioner for Corporate Affairs is to be read as a reference to the SSA.

32.   Disputes between members and societies

(1)  This section applies –

(a) where, immediately before the commencement of this section, a dispute between a continuing society and a member of that society –

(i) had been referred to the Commissioner for Corporate Affairs or the Supreme Court under section 31 or 32 of the Building Societies Act 1876 or section 44 of the Co-operative Industrial Societies Act 1928 and

(ii) the dispute had not been determined; or

(b) where –

(i) during the period of 28 days before the commencement of this section, a dispute between a continuing society and a member of that society had been referred to arbitration in accordance with the society's rules; and

(ii) one month after the reference of that dispute to arbitration, no award had been made pursuant to the arbitration; and

(iii) a party to the dispute applies to refer it to the Commissioner for Corporate Affairs.

(2)  Where this section applies, section 31 or 32 of the Building Societies Act 1876 or section 44 of the Co-operative Industrial Societies Act 1928 of the previous law continues to apply in relation to the relevant dispute as if the relevant continuing society were still a society registered under the Building Societies Act 1876 or the Co-operative Industrial Societies Act 1928 .

33.   Use of name by continuing building society

A continuing building society need not comply with section 140 (3) of the Financial Institutions (Tasmania) Code until 6 months after the date of its commencement.

34.   Acceptance of deposits

(1)  [Section 34 Subsection (1) amended by No. 63 of 1995, s. 3 ]Despite anything to the contrary in section 138 or 433 of the Financial Institutions (Tasmania) Code , a continuing building society may accept a deposit of money from a person who is not a member of the continuing building society subject to and in accordance with its rules and any applicable standard in force under section 28 of the AFIC (Tasmania) Code .

(2)  [Section 34 Subsection (2) omitted by No. 63 of 1995, s. 3 ].  .  .  .  .  .  .  .  

35.   General savings and transitional provisions

(1)  Except as otherwise provided by this Act or the Financial Institutions (Tasmania) Code or by regulations made under section 36 , anything done under a provision of an Act repealed by this Act or under the Co-operative Industrial Societies Act 1928 that had an effect immediately before the commencement of a corresponding provision of the Financial Institutions (Tasmania) Code is to be considered to have been done under that corresponding provision.

(2)  Subsection (1) applies even if when done under the corresponding provision of the Financial Institutions (Tasmania) Code the thing can only be done by a different person or body and in such a case is to be considered to have been done by that person or body.

36.   Regulations – savings and transitional

(1)  The Governor, on the recommendation of the Minister made with the approval of the Ministerial Council, may make regulations of a saving or transitional nature consequent on the enactment or commencement of this Act.

(2)  If the regulations so provide, they have effect despite any provision of the Financial Institutions (Tasmania) Code or the AFIC (Tasmania) Code .

(3)  If the regulations so provide, a provision of the regulations may take effect on the date of commencement of this section or a later date.

(4)  To the extent to which a provision referred to in subsection (3) takes effect from a date that is earlier than the date of its notification of the making of the regulations in the Gazette, the provision –

(a) operates to the advantage of a person (other than Tasmania or an authority of Tasmania) by –

(i) increasing the person's rights; or

(ii) relieving the person of liabilities; and

(b) does not operate to the disadvantage of another person (other than Tasmania or an authority of Tasmania) by –

(i) decreasing the person's rights; or

(ii) imposing liabilities on the person.

37.    Co-operative Industrial Societies Act 1928 not to apply to credit unions

(1)  In so far as it relates to credit unions, the Co-operative Industrial Societies Act 1928 ceases to have effect.

(2)  Subsection (1) is subject to express provision made by the scheme legislation of Tasmania.

40.   Repeal

The Acts specified in Schedule 1 are repealed.

SCHEDULE 1 - Acts Repealed

Section 40