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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Treasury Laws Amendment (2017
Measures No. 5) Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to amend the law relating to
corporations, financial products and services and
the Productivity Commission, and for related
purposes
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Financial benchmarks
3
Part 1--Main amendments
3
Corporations Act 2001
3
Part 2--Main consequential amendments
36
Corporations Act 2001
36
Part 3--Other consequential amendments
44
Treasury Laws Amendment (2016 Measures No. 1) Act 2017
44
Schedule 2--Indigenous policy and program evaluation
45
Productivity Commission Act 1998
45
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
1
A Bill for an Act to amend the law relating to
1
corporations, financial products and services and
2
the Productivity Commission, and for related
3
purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act is the Treasury Laws Amendment (2017 Measures No. 5)
7
Act 2017.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Parts 1 and 2
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 3
Immediately after the commencement of
Schedule 5 to the Treasury Laws
Amendment (2016 Measures No. 1) Act
2017.
4 April 2018
4. Schedule 2
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Schedules
10
Legislation that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
concerned, and any other item in a Schedule to this Act has effect
13
according to its terms.
14
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
3
Schedule 1--Financial benchmarks
1
Part 1--Main amendments
2
Corporations Act 2001
3
1 After Part 7.5A
4
Insert:
5
Part 7.5B--Regulation of financial benchmarks
6
Division 1--Preliminary
7
908AA Simplified outline of this Part
8
Administrators of significant financial benchmarks must be
9
licensed under this Part. Administrators of other financial
10
benchmarks may voluntarily opt in to the same licensing scheme.
11
Licensees are subject to certain obligations.
12
ASIC may make financial benchmark rules that apply in relation to
13
licensees and the financial benchmarks they administer.
14
ASIC may also make compelled financial benchmark rules to deal
15
with circumstances such as the failure of a licensee to administer a
16
significant financial benchmark specified in its licence.
17
Offences and civil penalty provisions apply to conduct that could
18
unduly manipulate a financial benchmark.
19
908AB Meaning of financial benchmark
20
(1) A financial benchmark is a price, estimate, rate, index or value
21
that:
22
(a) is made available to users (whether or not for a fee); and
23
(b) is calculated periodically from one or more:
24
Schedule 1 Financial benchmarks
Part 1 Main amendments
4
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
(i) transactions, instruments, currencies, prices, estimates,
1
rates, indices, values, financial products, bank accepted
2
bills or negotiable certificates of deposit; or
3
(ii) other interests or goods (whether tangible or intangible);
4
and
5
(c) is referenced or otherwise used for purposes that include one
6
or more of the following:
7
(i) calculating the interest, or other amounts, payable under
8
financial products, bank accepted bills or negotiable
9
certificates of deposit;
10
(ii) calculating the price at which a financial product, bank
11
accepted bill or negotiable certificate of deposit may be
12
traded, redeemed or dealt in;
13
(iii) calculating the value of a financial product, bank
14
accepted bill or negotiable certificate of deposit;
15
(iv) measuring the performance of a financial product, bank
16
accepted bill or negotiable certificate of deposit.
17
(2) However, the regulations, or ASIC by written instrument, may
18
provide that a price, estimate, rate, index or value is not a financial
19
benchmark.
20
(3) Such an instrument by ASIC is a legislative instrument if it is
21
expressed to apply in relation to a class of prices, estimates, rates,
22
indices or values (whether or not it is also expressed to apply in
23
relation to one or more prices, estimates, rates, indices or values
24
identified otherwise than by reference to membership of a class).
25
(4) If subsection (3) does not apply to an instrument by ASIC under
26
subsection (2), ASIC must publish the instrument.
27
908AC Meaning of significant financial benchmark
28
(1) A significant financial benchmark is a financial benchmark that is
29
declared under subsection (2).
30
(2) ASIC may, by legislative instrument, declare a financial
31
benchmark to be a significant financial benchmark if ASIC is
32
satisfied that:
33
(a) the benchmark is systemically important to the Australian
34
financial system; or
35
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
5
(b) there is a material risk of financial contagion, or systemic
1
instability, in Australia if the availability or integrity of the
2
benchmark were disrupted; or
3
(c) there would be a material impact on retail or wholesale
4
investors in Australia if the availability or integrity of the
5
benchmark were disrupted.
6
Note 1:
For declaration by class, see subsection 13(3) of the Legislation Act
7
2003.
8
Note 2:
For variation and revocation of a declaration, see subsection 33(3) of
9
the Acts Interpretation Act 1901.
10
(3) ASIC must not make a declaration under subsection (2) unless
11
consent for it has been given under subsection (4).
12
(4) The Minister may, in writing, consent to the making of a
13
declaration under subsection (2).
14
908AD Emergency declarations: consultation and consent not
15
required
16
(1) Despite subsection 908AC(3), ASIC may make a declaration under
17
subsection 908AC(2) without the consent of the Minister if ASIC
18
is of the opinion that it is necessary, or in the public interest, to do
19
so in order to protect:
20
(a) the Australian economy; or
21
(b) the efficiency, integrity and stability of the Australian
22
financial system.
23
(2) If ASIC makes a declaration under subsection 908AC(2) without
24
the consent of the Minister, ASIC must:
25
(a) provide the Minister, on the following day, with a written
26
explanation of the need for the declaration; and
27
(b) revoke the declaration in accordance with any direction under
28
subsection (3).
29
(3) The Minister may give ASIC a written direction to revoke a
30
declaration made as described in subsection (1).
31
(4) A direction under subsection (3) is not a legislative instrument.
32
Schedule 1 Financial benchmarks
Part 1 Main amendments
6
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
908AE Notifying administrator about declarations
1
ASIC must, as soon as practicable, give the administrator of a
2
financial benchmark written notice of:
3
(a) any declaration of the financial benchmark under
4
subsection 908AC(2); or
5
(b) any variation, or revocation, under subsection 908AC(2) of a
6
declaration of the financial benchmark under that subsection;
7
or
8
(c) any revocation under subsection 908AD(2)(b) of a
9
declaration of the financial benchmark under
10
subsection 908AC(2).
11
908AF ASIC to supervise financial benchmarks that are specified in
12
benchmark administrator licences
13
(1) ASIC has the function of supervising financial benchmarks that are
14
specified in benchmark administrator licences.
15
(2) If such a financial benchmark is wholly or partly generated or
16
administered in a foreign country, ASIC may, to such extent as
17
ASIC considers appropriate, perform the function of supervising
18
the financial benchmark by satisfying itself:
19
(a) that the regulatory regime that applies in relation to the
20
financial benchmark in that country provides for adequate
21
supervision of the financial benchmark; or
22
(b) that adequate cooperative arrangements are in place with an
23
appropriate authority of that country to ensure that the
24
financial benchmark will be adequately supervised by that
25
authority.
26
908AG Extraterritorial application
27
Subject to sections 908BB and 908DD, this Part applies to acts,
28
omissions, matters and things in Australia or outside Australia.
29
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
7
Division 2--Licensing of financial benchmarks
1
Subdivision A--Requirement to be licensed
2
908BA Administrators of significant financial benchmarks must be
3
licensed
4
(1) A person commits an offence if:
5
(a) the person:
6
(i) administers a significant financial benchmark; or
7
(ii) holds out that the person administers a significant
8
financial benchmark; and
9
(b) the person does not hold a benchmark administrator licence
10
that specifies the financial benchmark; and
11
(c) the period applying under subsection (2) for the financial
12
benchmark has ended.
13
Penalty: 500 penalty units or imprisonment for 5 years, or both.
14
(2) The period for the purposes of paragraph (1)(c):
15
(a) starts on the day (the start day) the financial benchmark is
16
declared under subsection 908AC(2) to be a significant
17
financial benchmark; and
18
(b) ends as described in subsection (3).
19
(3) The period ends at the end of the later of the following days:
20
(a) the 90th day after the start day;
21
(b) if, before the end of that 90th day, the person applies for a
22
benchmark administrator licence specifying the financial
23
benchmark--either:
24
(i) the day the person withdraws the application; or
25
(ii) the day the person is notified under
26
subsection 908BC(4) of ASIC's decision to grant or
27
refuse to grant the licence.
28
(4) Absolute liability applies to paragraph (1)(c).
29
Note:
For absolute liability, see section 6.2 of the Criminal Code.
30
Schedule 1 Financial benchmarks
Part 1 Main amendments
8
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
908BB Other prohibitions on holding out
1
A person commits an offence if:
2
(a) in Australia, the person holds out that:
3
(i) the person holds a benchmark administrator licence; or
4
(ii) the administration of a financial benchmark by the
5
person is authorised by a benchmark administrator
6
licence; or
7
(iii) a financial benchmark is specified in a benchmark
8
administrator licence; or
9
(iv) a financial benchmark is a significant financial
10
benchmark; or
11
(v) a financial benchmark is not a significant financial
12
benchmark; and
13
(b) this is not the case.
14
Penalty: 500 penalty units or imprisonment for 5 years, or both.
15
Subdivision B--Granting licences
16
908BC When a licence may be granted
17
Granting licences--general
18
(1) ASIC may grant an applicant a licence (a benchmark
19
administrator licence) to administer a specified financial
20
benchmark if ASIC is satisfied that:
21
(a) the application was made in accordance with section 908BD;
22
and
23
(b) the applicant will comply with the obligations that will apply
24
if the licence is granted; and
25
(c) no disqualified individual appears to be involved in the
26
applicant.
27
The licence may be granted subject to conditions.
28
Note 1:
ASIC must also have regard to the matters in section 908BO in
29
deciding whether to grant a licence.
30
Note 2:
A licence is required if the benchmark is a significant financial
31
benchmark (see section 908BA). Licences are not required, but can
32
still be granted, for other financial benchmarks.
33
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
9
Foreign bodies
1
(2) Despite subsection (1), if the applicant is a foreign body corporate,
2
ASIC must not grant the applicant a licence unless the applicant is
3
registered under Division 2 of Part 5B.2.
4
Disqualified individuals
5
(3) Despite subsection (1), ASIC must not grant the applicant a licence
6
unless:
7
(a) 42 days have passed since the application was made; and
8
(b) if ASIC gives a notice under subsection 853D(2) to the
9
applicant within those 42 days, ASIC decides not to make a
10
declaration under section 853C about any individual who is
11
involved in the applicant.
12
Notice of decision
13
(4) ASIC must give the applicant written notice of:
14
(a) ASIC's decision whether to grant the applicant a licence; and
15
(b) if the licence is granted--any conditions to which the licence
16
is subject.
17
908BD Applying for a licence
18
(1) A body corporate may, by lodging an application with ASIC that is
19
in a form approved by ASIC in writing, apply for a benchmark
20
administrator licence for a particular financial benchmark.
21
Note:
For fees for lodging applications, see Part 9.10.
22
(2) ASIC may, by written notice given to an applicant, require the
23
applicant to lodge with ASIC, within the period specified in the
24
notice, further information in connection with the application.
25
(3) If the applicant fails to lodge the further information as required,
26
ASIC may, by written notice given to the applicant:
27
(a) refuse to consider the application; or
28
(b) refuse to take any action, or any further action, in relation to
29
the application.
30
Schedule 1 Financial benchmarks
Part 1 Main amendments
10
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
908BE More than one financial benchmark may be specified in the
1
same licence
2
(1) The same benchmark administrator licence may specify 2 or more
3
financial benchmarks.
4
(2) In that case, a reference in this Chapter to the financial benchmark
5
specified in the licence is taken instead to be a reference to each of
6
those financial benchmarks severally.
7
(3) A benchmark administrator licence that specifies 2 or more
8
financial benchmarks may be suspended or cancelled under
9
Subdivision D in respect of one or some of those financial
10
benchmarks only, as if the licensee held a separate licence for each
11
of the financial benchmarks.
12
908BF Publishing details of licences
13
If ASIC grants a benchmark administrator licence, ASIC must
14
publish a notice stating:
15
(a) the name of the licensee and of the financial benchmark
16
specified in the licence; and
17
(b) when the licence was granted; and
18
(c) any conditions to which the licence is subject; and
19
(d) when the licence takes effect.
20
Subdivision C--Conditions on licences
21
908BG Conditions, including varying and revoking conditions
22
(1) ASIC may, at any time, take action to:
23
(a) impose conditions, or additional conditions, on a benchmark
24
administrator licence; or
25
(b) vary or revoke any conditions to which a benchmark
26
administrator licence is subject (whether imposed under
27
paragraph (a) or under subsection 908BC(1));
28
by giving written notice to the licensee. ASIC must also publish a
29
notice with details of the action and when it took effect.
30
Note 1:
As well as complying with the requirements in this section, ASIC
31
must have regard to the matters in section 908BO.
32
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
11
Note 2:
A licensee is also subject to other obligations in this Part (for example,
1
see Divisions 3 and 4).
2
(2) ASIC may take action under subsection (1):
3
(a) on its own initiative, subject to subsection (3); or
4
(b) if the licensee lodges an application with ASIC, in a form
5
approved by ASIC in writing, seeking:
6
(i) the imposition of conditions; or
7
(ii) the variation or revocation of conditions.
8
Note:
For fees for lodging applications, see Part 9.10.
9
(3) ASIC may only take action on its own initiative to impose
10
conditions or additional conditions, or to vary or revoke conditions,
11
to which the licence is subject if:
12
(a) ASIC considers it appropriate to do so having regard to:
13
(i) the licensee's obligations under this Part; and
14
(ii) the licensee's obligations under rules made under
15
Division 3; and
16
(iii) any change in the administration of the financial
17
benchmark specified in the licence; and
18
(b) ASIC gives the licensee written notice of the proposed action
19
and an opportunity to make a submission before the proposed
20
action is to take effect.
21
This subsection does not apply to ASIC imposing conditions when
22
a licence is granted.
23
Subdivision D--When a licence can be varied, suspended or
24
cancelled
25
908BH Varying licences
26
ASIC may vary a benchmark administrator licence to:
27
(a) take account of a change in the licensee's name; or
28
(b) take account of a change in the financial benchmark specified
29
in the licence; or
30
(c) specify one or more further financial benchmarks;
31
if the licensee seeks the variation by lodging an application with
32
ASIC in a form approved by ASIC in writing.
33
Note 1:
The conditions on the licence can be varied under section 908BG.
34
Schedule 1 Financial benchmarks
Part 1 Main amendments
12
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
Note 2:
For a variation referred to in paragraph (b) or (c), ASIC must also
1
have regard to the matters in section 908BO.
2
Note 3:
For fees for lodging applications, see Part 9.10.
3
908BI Immediate suspension or cancellation
4
(1) ASIC may, by giving written notice to a benchmark administrator
5
licensee, suspend the licensee's licence for a specified period, or
6
cancel it, if:
7
(a) the licensee ceases to carry on the business of administering
8
the financial benchmark specified in the licence; or
9
(b) the licensee is a Chapter 5 body corporate, or under a foreign
10
law is in a similar position to a Chapter 5 body corporate; or
11
(c) the licensee asks ASIC to do so; or
12
(d) in the case of a licensee that is a leviable entity (within the
13
meaning of the ASIC Supervisory Cost Recovery Levy Act
14
2017)--the following have not been paid in full at least 12
15
months after the due date for payment:
16
(i) an amount of levy (if any) payable in respect of the
17
licensee;
18
(ii) the amount of late payment penalty payable (if any) in
19
relation to the levy;
20
(iii) the amount of shortfall penalty payable (if any) in
21
relation to the levy.
22
(2) However, before doing so, ASIC must have regard to anything that
23
is required, or could be required, of the licensee under the
24
compelled financial benchmark rules.
25
908BJ Suspension or cancellation following hearing and report
26
(1) If ASIC considers that a benchmark administrator licensee has
27
breached, or is in breach of:
28
(a) any conditions to which the licence is subject; or
29
(b) any of its obligations under this Part; or
30
(c) any of its obligations under rules made under Division 3;
31
ASIC may give the licensee a written notice that requires the
32
licensee to show cause, at a hearing before a specified person, why
33
the licence should not be suspended or cancelled.
34
(2) The notice must specify:
35
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
13
(a) the grounds on which it is proposed to suspend or cancel the
1
licence; and
2
(b) a reasonable time and place at which the hearing is to be
3
held.
4
However, if the licensee consents, the person conducting the
5
hearing may fix a different time or place.
6
(3) The person conducting the hearing must:
7
(a) give the licensee an opportunity to be heard at the hearing;
8
and
9
(b) give ASIC:
10
(i) a report about the hearing; and
11
(ii) a recommendation about the grounds in the notice on
12
which it is proposed to suspend or cancel the licence.
13
(4) After considering the report and recommendation, ASIC may:
14
(a) decide to take no further action in relation to the matter and
15
give written advice of that decision to the licensee; or
16
(b) suspend the licence for a specified period, or cancel the
17
licence, by giving written notice to the licensee.
18
Note:
ASIC must also have regard to the matters in section 908BO.
19
(5) A notice under subsection (1) is not a legislative instrument.
20
908BK Effect of suspension
21
(1) A person whose benchmark administrator licence is suspended is
22
taken not to hold that licence while it is suspended.
23
(2) However, ASIC may specify in the written notice to the licensee
24
under section 908BI, or paragraph 908BJ(4)(b), that subsection (1)
25
of this section does not apply for specified purposes.
26
908BL Varying or revoking a suspension
27
ASIC may at any time vary or revoke a suspension of a benchmark
28
administrator licence by giving written notice to the licensee.
29
908BM Publishing details of suspensions or cancellations of licences
30
(1) If ASIC takes action to:
31
Schedule 1 Financial benchmarks
Part 1 Main amendments
14
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
(a) suspend, or vary or revoke a suspension of, a benchmark
1
administrator licence; or
2
(b) cancel a benchmark administrator licence;
3
ASIC must publish a notice to that effect.
4
(2) The notice must state when the action took effect.
5
908BN Variations, suspensions or cancellations only in accordance
6
with this Subdivision
7
A benchmark administrator licence cannot be varied, suspended or
8
cancelled otherwise than in accordance with this Subdivision.
9
Note:
The conditions on the licence can be varied under section 908BG.
10
Subdivision E--Matters to which ASIC must have regard
11
908BO Matters to which ASIC must have regard
12
(1) ASIC must have regard to certain matters in deciding whether to
13
take any of the following actions in relation to a financial
14
benchmark:
15
(a) grant under section 908BC a benchmark administrator
16
licence that specifies the financial benchmark;
17
(b) impose, vary or revoke conditions on such a licence under
18
section 908BC or 908BG;
19
(c) vary such a licence under section 908BH for a change
20
referred to in paragraph 908BH(b) or (c);
21
(d) suspend or cancel such a licence under section 908BJ.
22
(2) The matters ASIC must have regard to are as follows:
23
(a) how the financial benchmark is, or is to be, administered;
24
(b) the nature and purpose of the financial benchmark;
25
(c) the manner in which the financial benchmark is, or is to be,
26
used;
27
(d) the persons who are, or may be, required to report data or
28
other information to the licensee for the purposes of
29
generating or administering the financial benchmark;
30
(e) for an entity that is authorised to administer the same or a
31
similar financial benchmark in the foreign country in which
32
its principal place of business is located:
33
Financial benchmarks Schedule 1
Main amendments Part 1
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
15
(i) the criteria that the entity satisfied to obtain an
1
authorisation to administer that financial benchmark in
2
that country; and
3
(ii) the obligations the entity must continue to comply with
4
to keep the authorisation; and
5
(iii) the level of supervision to which the administration of
6
that financial benchmark in that country is subject; and
7
(iv) whether adequate arrangements exist for cooperation
8
between ASIC and the authority that is responsible for
9
that supervision;
10
(f) whether it would be in the public interest to take the action
11
referred to in subsection (1).
12
(3) ASIC may also have regard to any other matter that ASIC
13
considers relevant.
14
Subdivision F--Other obligations of licensees
15
908BP General obligations
16
A benchmark administrator licensee must:
17
(a) comply with the conditions on the licence; and
18
(b) if the licensee is a foreign body corporate--be registered
19
under Division 2 of Part 5B.2; and
20
(c) take all reasonable steps to ensure that no disqualified
21
individual becomes, or remains, involved in the
22
administration of the financial benchmark specified in the
23
licence.
24
Note:
The licensee also needs to comply with the rules made under
25
Division 3 (see section 908CF).
26
908BQ Obligation to notify ASIC of certain matters
27
(1) A person commits an offence if:
28
(a) the person is a benchmark administrator licensee; and
29
(b) the licensee becomes aware of any of the following events:
30
(i) that the licensee may no longer be able to comply with
31
an obligation under section 908BP;
32
(ii) that the licensee has failed to comply with an obligation
33
under section 908BP;
34
Schedule 1 Financial benchmarks
Part 1 Main amendments
16
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
(iii) that a person becomes or ceases to be a director,
1
secretary or senior manager of the licensee;
2
(iv) that a person becomes or ceases to be a director,
3
secretary or senior manager of a holding company of the
4
licensee; and
5
(c) the licensee fails to give written notice to ASIC of:
6
(i) the event; and
7
(ii) such related information (if any) as is prescribed by the
8
regulations for the purposes of this subparagraph;
9
as soon as practicable after becoming aware of the event.
10
Penalty: 100 penalty units.
11
(2) Without limiting subparagraph (1)(b)(iii) or (iv), that subparagraph
12
applies to the case where a person:
13
(a) changes from one of the positions mentioned in that
14
subparagraph to another; or
15
(b) changes from a position mentioned in that subparagraph to a
16
position mentioned in the other subparagraph.
17
908BR Obligation to assist ASIC, APRA and the Reserve Bank
18
(1) ASIC, APRA and the Reserve Bank of Australia are each a
19
regulator to which this section applies.
20
(2) A person commits an offence if:
21
(a) the person is a benchmark administrator licensee; and
22
(b) a regulator to which this section applies reasonably requests,
23
in writing, the person to:
24
(i) give the regulator access to the person's books that
25
relate to the person's capacity as such a licensee; or
26
(ii) give other assistance to the regulator in relation to the
27
performance of the regulator's functions; and
28
(c) the person fails to comply with the request.
29
Penalty: 100 penalty units.
30
908BS Obligation to give ASIC access to licensee's facilities
31
A person commits an offence if:
32
(a) the person is a benchmark administrator licensee; and
33
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(b) ASIC requests, in writing, the person to provide reasonable
1
access to any of the person's facilities for any of the purposes
2
of this Part; and
3
(c) the facilities relate to the person's capacity as such a licensee;
4
and
5
(d) the person fails to comply with the request.
6
Penalty: 100 penalty units.
7
Subdivision G--Directions to licensees
8
908BT ASIC's power to give directions to licensee not complying
9
with obligations
10
(1) If ASIC considers that a benchmark administrator licensee is not
11
complying with:
12
(a) any of its obligations under this Part; or
13
(b) any of its obligations under rules made under Division 3;
14
ASIC may give the licensee a written direction to do specified
15
things that ASIC believes will promote the licensee's compliance
16
with those obligations.
17
(2) The licensee must comply with the direction.
18
(3) If the licensee fails to comply with the direction, ASIC may apply
19
to the Court for, and the Court may make, an order that the licensee
20
comply with the direction.
21
(4) ASIC may vary or revoke a direction at any time by giving written
22
notice to the licensee.
23
(5) A direction under subsection (1) is not a legislative instrument.
24
908BU Minister may disallow all or part of an ASIC direction etc.
25
(1) As soon as practicable after giving the benchmark administrator
26
licensee:
27
(a) a direction under subsection 908BT(1); or
28
(b) a notice of variation or revocation under
29
subsection 908BT(4);
30
ASIC must give the Minister a copy of the direction or notice.
31
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(2) Within 30 days after ASIC gives the Minister the copy of the
1
direction or notice, the Minister may, by written instrument,
2
disallow all or a specified part of that direction or notice.
3
(3) In deciding whether to do so, the Minister must have regard to:
4
(a) the consistency of the direction or notice with the licensee's
5
obligations referred to in subsection 908BT(1); and
6
(b) the matters referred to in subsection 908BO(2).
7
(4) As soon as practicable after all or a part of a direction or notice is
8
disallowed, ASIC must give notice of the disallowance to the
9
licensee. The direction or notice ceases to have effect, to the extent
10
of the disallowance, when the licensee receives notice of the
11
disallowance.
12
(5) An instrument under subsection (2) is not a legislative instrument.
13
908BV ASIC's power to give directions requiring reports
14
(1) ASIC may, in writing, direct a benchmark administrator licensee to
15
give ASIC a report that:
16
(a) deals with specified matters; and
17
(b) if ASIC requires--includes an audit statement on the
18
licensee's report on those matters.
19
(2) A direction under subsection (1) must specify:
20
(a) a reasonable period for giving ASIC the report; and
21
(b) if paragraph (1)(b) applies--a person or body that is suitably
22
qualified to prepare the audit statement.
23
(3) ASIC may give a copy of the report to the Minister.
24
(4) A person commits an offence if:
25
(a) the person is a benchmark administrator licensee; and
26
(b) the person is given a direction under subsection (1); and
27
(c) the person fails to comply with the direction.
28
Penalty: 100 penalty units.
29
(5) A direction under subsection (1) is not a legislative instrument.
30
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Subdivision H--Other matters
1
908BW ASIC may assess licensee's compliance
2
(1) ASIC may do an assessment of how well a benchmark
3
administrator licensee is complying with one or more of its
4
obligations:
5
(a) under this Part; or
6
(b) under rules made under Division 3.
7
In doing the assessment, ASIC may take account of any
8
information and reports that it thinks appropriate.
9
(2) As soon as practicable after doing an assessment under this section,
10
ASIC must give a written report on the assessment to the licensee.
11
ASIC may give a copy of the report to the Minister.
12
(3) If an assessment, or part of an assessment, relates to any other
13
person's affairs to a material extent, ASIC may, at the person's
14
request or on its own initiative, give the person a copy of the report
15
on the assessment or the relevant part of the report.
16
(4) If an assessment, or part of an assessment, relates to a serious
17
contravention of a law of the Commonwealth or of a State or
18
Territory, ASIC may give a copy of the report on the assessment,
19
or the relevant part of the report, to:
20
(a) the Australian Federal Police; or
21
(b) the Chief Executive Officer of the Australian Crime
22
Commission or a member of the staff of the ACC (within the
23
meaning of the Australian Crime Commission Act 2002); or
24
(c) the Director of Public Prosecutions; or
25
(d) a person or body prescribed by the regulations for the
26
purposes of this paragraph.
27
(5) ASIC may publish all or part of the written report on an
28
assessment.
29
908BX Basis of licences
30
(1) A benchmark administrator licence is granted under this Part on the
31
basis that:
32
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(a) the licence may be varied, suspended or cancelled, or made
1
subject to conditions (or additional conditions), by or under:
2
(i) this Division; or
3
(ii) later legislation; and
4
(b) no compensation is payable if the licence is varied,
5
suspended or cancelled, or made subject to conditions (or
6
additional conditions), as mentioned in paragraph (a).
7
(2) Subsection (1) does not, by implication, affect the interpretation of
8
any other provision:
9
(a) of this Act; or
10
(b) of an instrument made under this Act.
11
Division 3--Financial benchmark rules and compelled
12
financial benchmark rules
13
Subdivision A--Power to make financial benchmark rules
14
908CA ASIC may make financial benchmark rules
15
Subject to this Division, ASIC may, by legislative instrument,
16
make rules (the financial benchmark rules) dealing with one or
17
more of the matters permitted by this Subdivision.
18
Note:
Subdivision D deals with the process of making the rules.
19
908CB Main permitted matters that may be dealt with in the rules
20
The main permitted matters are the following:
21
(a) the responsibilities of benchmark administrator licensees,
22
including for their oversight of internal and external parties
23
who have a role in the generation and administration of the
24
financial benchmarks specified in those licences;
25
(b) the generation and administration of financial benchmarks
26
specified in benchmark administrator licences, including:
27
(i) the design of the financial benchmarks; and
28
(ii) the use of data or information in generating the financial
29
benchmarks; and
30
(iii) the method for generating the financial benchmarks; and
31
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(iv) the approach for changing the design referred to in
1
subparagraph (i) or changing the method referred to in
2
subparagraph (iii); and
3
(v) the public disclosure of one or more of the matters
4
referred to in this paragraph;
5
(c) the manner in which benchmark administrator licensees may
6
or must provide their services, including the manner and
7
conditions (including fees) on which they provide access to
8
the financial benchmarks specified in those licences;
9
(d) business continuity planning for financial benchmarks
10
specified in benchmark administrator licences, including the
11
possible transition of such benchmarks to new licensees;
12
(e) the governance, management and resources (including
13
financial, technological and human resources) of benchmark
14
administrator licensees, including the following:
15
(i) the handling of conflicts of interest;
16
(ii) the handling of complaints;
17
(iii) the monitoring and enforcing of compliance with
18
obligations;
19
(iv) the resources that benchmark administrator licensees
20
must have (including requirements relating to the
21
experience, qualifications or fitness for office of their
22
officers and employees);
23
(v) the integrity and security of computer systems and other
24
systems;
25
(vi) operational reliability;
26
(vii) business continuity planning;
27
(viii) the operational separation of functions;
28
(ix) the outsourcing of functions to other entities;
29
(f) the public disclosure of conditions (including fees) on which
30
benchmark administrator licensees provide their services;
31
(g) the handling or use of financial benchmark data by
32
benchmark administrator licensees and their officers and
33
employees, including the following:
34
(i) the acceptance and retention of such data;
35
(ii) the creation of statistical data from such data;
36
(iii) the use and disclosure of, and provision of access to,
37
such data (including statistical data referred to in
38
subparagraph (ii));
39
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(h) the responsibilities of entities whose activities result in the
1
provision of data or information to benchmark administrator
2
licensees for the generation or administration of the financial
3
benchmarks specified in those licences;
4
(i) the reporting to ASIC or other regulators of matters relating
5
to:
6
(i) benchmark administrator licensees; or
7
(ii) the generation or administration of financial
8
benchmarks specified in benchmark administrator
9
licences;
10
(j) a matter prescribed by the regulations for the purposes of this
11
paragraph.
12
Note:
For paragraph (c), the rules may (for example) require benchmark
13
administrator licensees to provide open and non-discriminatory access
14
to their financial benchmarks, including as to price.
15
908CC Other permitted matters that may be dealt with in the rules
16
The other permitted matters are matters incidental or related to the
17
matters permitted under section 908CB, including the following:
18
(a) subject to section 908CP, the persons who are obliged to
19
comply with requirements imposed by the rules;
20
(b) the manner and form in which persons must comply with
21
requirements imposed by the rules;
22
(c) the circumstances in which persons are, or may be, relieved
23
from complying with requirements in the rules that would
24
otherwise apply to them;
25
(d) the keeping of records, or the provision of records or other
26
information, relating to compliance with (or determining
27
whether there has been compliance with) the rules;
28
(e) any other matters that the provisions of this Act provide may
29
be dealt with in the financial benchmark rules.
30
Subdivision B--Power to make compelled financial benchmark
31
rules
32
908CD ASIC may make compelled financial benchmark rules
33
Subject to this Division, ASIC may, by legislative instrument,
34
make rules (the compelled financial benchmark rules) conferring
35
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one or more of the powers, or dealing with one or more of the
1
matters, permitted by this Subdivision.
2
Note:
Subdivision D deals with the process of making the rules.
3
908CE Permitted powers and matters that may be dealt with in the
4
rules
5
(1) The permitted powers and matters are the following:
6
(a) the power for ASIC to require, by written notice, an entity
7
referred to in paragraph 908CB(h):
8
(i) to provide data or information to a benchmark
9
administrator licensee, or to another entity, for the
10
generation or administration of a significant financial
11
benchmark specified in that licence; and
12
(ii) to provide ASIC with some or all of that data or
13
information for purposes relating to the generation or
14
administration of that significant financial benchmark;
15
(b) the power for ASIC to require, by written notice, a
16
benchmark administrator licensee:
17
(i) to continue to generate or administer a significant
18
financial benchmark specified in that licence; or
19
(ii) to generate or administer in a particular way a
20
significant financial benchmark specified in that licence;
21
(c) powers or matters incidental or related to:
22
(i) one or more of the above powers; or
23
(ii) the compulsory generation or administration of a
24
significant financial benchmark specified in a
25
benchmark administrator licence;
26
including a power or matter prescribed by the regulations for
27
the purposes of this paragraph.
28
(2) However, ASIC may only require something under a power
29
referred to in subsection (1) if:
30
(a) ASIC reasonably believes it is in the public interest to do so;
31
and
32
(b) in the case of paragraph (1)(a)--the activities of the entity
33
concerned have previously resulted in the provision of data or
34
information to that licensee for the generation or
35
administration of that significant financial benchmark.
36
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Subdivision C--Compliance with each set of rules etc.
1
908CF Obligation to comply with each set of rules
2
(1) A person (whether a benchmark administrator licensee or
3
otherwise) must comply with:
4
(a) provisions of the financial benchmark rules; and
5
(b) provisions of the compelled financial benchmark rules;
6
that apply to the person.
7
Note 1:
This subsection is a civil penalty provision (see section 1317E). For
8
the maximum penalty amount for contravening a provision of the
9
rules, see section 908CO and subsection 1317G(1DD). For relief from
10
liability to a civil penalty relating to this subsection, see
11
section 1317S.
12
Note 2:
The regulations may limit the persons on whom each set of rules may
13
impose requirements (see section 908CP).
14
(2) If there is an inconsistency between the financial benchmark rules
15
and the compelled financial benchmark rules, the compelled
16
financial benchmark rules prevail to the extent of the
17
inconsistency.
18
(3) If there is an inconsistency between any of the rules made under
19
this Division and any of the other rules made under other
20
provisions of this Chapter, those other rules prevail to the extent of
21
the inconsistency.
22
908CG Alternatives to civil proceedings
23
(1) The regulations may provide for a person who is alleged to have
24
contravened subsection 908CF(1) to do one or more of the
25
following as an alternative to civil proceedings:
26
(a) pay a penalty to the Commonwealth;
27
(b) undertake or institute remedial measures (including education
28
programs);
29
(c) accept sanctions other than the payment of a penalty to the
30
Commonwealth.
31
(2) The penalty payable under regulations made for the purposes of
32
paragraph (1)(a) in relation to a rule must not exceed one-fifth of
33
the penalty amount specified for the rule in the applicable set of
34
rules.
35
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908CH Infringement notices
1
(1) Subsection 908CF(1) is subject to an infringement notice under
2
Part 5 of the Regulatory Powers Act.
3
Infringement officer
4
(2) For the purposes of Part 5 of the Regulatory Powers Act, each staff
5
member of ASIC who holds, or is acting in, an office or position
6
that is equivalent to an SES employee is an infringement officer in
7
relation to subsection 908CF(1) of this Act.
8
Relevant chief executive
9
(3) For the purposes of Part 5 of the Regulatory Powers Act, each
10
member of ASIC (within the meaning of section 9 of the ASIC
11
Act) is the relevant chief executive in relation to
12
subsection 908CF(1) of this Act.
13
908CI Enforceable undertakings
14
(1) Subsection 908CF(1) is enforceable under Part 6 of the Regulatory
15
Powers Act (about enforceable undertakings).
16
Authorised person
17
(2) For the purposes of Part 6 of the Regulatory Powers Act, each staff
18
member of ASIC who holds, or is acting in, an office or position
19
that is equivalent to an SES employee is an authorised person in
20
relation to subsection 908CF(1) of this Act.
21
Relevant courts
22
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of
23
the following courts is a relevant court in relation to
24
subsection 908CF(1) of this Act:
25
(a) the Federal Court of Australia;
26
(b) the Federal Circuit Court of Australia;
27
(c) a court of a State or Territory that has jurisdiction in relation
28
to the matter.
29
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908CJ Protection from liability for compliance in good faith
1
If:
2
(a) a person (the protected person):
3
(i) provides financial benchmark data, or other information,
4
to another person; or
5
(ii) otherwise allows another person access to financial
6
benchmark data, or other information; or
7
(iii) generates or administers in a particular way a significant
8
financial benchmark specified in a benchmark
9
administrator licence; and
10
(b) the protected person does so, in good faith, in compliance
11
with a requirement imposed by the compelled financial
12
benchmark rules;
13
the protected person is not liable to an action or other proceeding,
14
whether civil or criminal, for or in relation to that conduct.
15
Subdivision D--Matters relating to the making of each set of
16
rules
17
908CK Matters to which ASIC has regard when making rules
18
In considering whether to make a rule under this Division, ASIC:
19
(a) must have regard to:
20
(i) the final report titled "Principles for Financial
21
Benchmarks", dated July 2013 and published by the
22
Board of the International Organization of Securities
23
Commissions, as amended from time to time; and
24
(ii) the likely effect of the proposed rule on the Australian
25
economy, and on the efficiency, integrity and stability
26
of the Australian financial system; and
27
(iii) the likely regulatory impact of the proposed rule; and
28
(b) may have regard to any other matters that ASIC considers
29
relevant.
30
Note 1:
The Principles for Financial Benchmarks could in 2017 be viewed on
31
the International Organization of Securities Commissions website
32
(https://www.iosco.org/).
33
Note 2:
Matters that ASIC may have regard to under paragraph (b) could, for
34
example, include foreign laws relating to financial benchmarks, and
35
any matters raised in consultations under section 908CL.
36
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908CL ASIC to consult before making rules
1
(1) ASIC must not make a rule under this Division unless ASIC:
2
(a) has consulted the public about the proposed rule; and
3
(b) has also consulted any other person or body as required by
4
regulations made for the purposes of this paragraph.
5
Note:
In some situations, consultation is not required (see section 908CN).
6
(2) Without limiting the ways in which ASIC may comply with the
7
obligation in paragraph (1)(a) to consult the public about a
8
proposed rule, ASIC is taken to comply with that obligation if
9
ASIC, on its website:
10
(a) makes the proposed rule, or a description of the content of
11
the proposed rule, available; and
12
(b) invites the public to comment on the proposed rule.
13
(3) A failure to consult as required by subsection (1) does not
14
invalidate a rule.
15
908CM Ministerial consent to rules required
16
(1) ASIC must not make a rule under this Division unless consent for
17
it has been given under subsection (2).
18
Note:
In some situations, consent is not required (see section 908CN).
19
(2) The Minister may, in writing, consent to the making of a rule under
20
this Division.
21
908CN Emergency rules: consultation and consent not required
22
(1) ASIC may make a rule under this Division without consulting as
23
required by section 908CL, and without the consent of the Minister
24
as required by section 908CM, if ASIC is of the opinion that it is
25
necessary, or in the public interest, to do so in order to protect:
26
(a) the Australian economy; or
27
(b) the efficiency, integrity or stability of the Australian financial
28
system; or
29
(c) the security or confidentiality of financial benchmark data.
30
(2) However, if ASIC does so, ASIC must:
31
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(a) provide the Minister, on the following day, with a written
1
explanation of the need for the rule; and
2
(b) vary or revoke the rule in accordance with any direction
3
under subsection (3).
4
(3) The Minister may give ASIC a written direction to vary or revoke a
5
rule made as described in subsection (1).
6
(4) A direction under subsection (3) is not a legislative instrument.
7
908CO Requirements and penalty amounts
8
Each of the financial benchmark rules and compelled financial
9
benchmark rules may:
10
(a) deal with a matter by imposing requirements; or
11
(b) specify a penalty amount for a rule.
12
A penalty amount must not exceed 5,550 penalty units (for any
13
entity).
14
908CP Regulations may limit how rules may deal with certain
15
matters
16
(1) The regulations may prescribe limits on:
17
(a) the extent to which, or the way in which, the financial
18
benchmark rules may deal with matters permitted by
19
Subdivision A; or
20
(b) the classes of persons on whom those rules may impose
21
requirements; or
22
(c) the extent to which those rules may impose requirements (or
23
certain kinds of requirements) on certain classes of persons.
24
(2) The regulations may prescribe limits on:
25
(a) the extent to which, or the way in which, the compelled
26
financial benchmark rules may deal with matters permitted
27
by Subdivision B; or
28
(b) the classes of persons on whom those rules may impose
29
requirements; or
30
(c) the extent to which those rules may impose requirements (or
31
certain kinds of requirements) on certain classes of persons.
32
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908CQ Varying or revoking the rules
1
(1) ASIC may vary or revoke a rule made under this Division in like
2
manner and subject to like conditions (see subsections 33(3) and
3
(3AA) of the Acts Interpretation Act 1901).
4
(2) However, the requirements of sections 908CK, 908CL and 908CM
5
do not apply in relation to a variation or revocation pursuant to a
6
direction by the Minister under subsection 908CN(3).
7
Division 4--Offences and civil penalties relating to
8
manipulation of financial benchmarks
9
908DA Manipulation of financial benchmarks
10
Civil penalty provisions
11
(1) A person contravenes this subsection if:
12
(a) the person does, or omits to do, one or more acts; and
13
(b) the acts or omissions have or are likely to have the effect of
14
influencing the level at which a financial benchmark is
15
generated or administered; and
16
(c) the person intends for the acts or omissions to have that effect
17
(whether or not the person also intends for the acts or
18
omissions to have another effect).
19
Note 1:
This is a civil penalty provision (see section 1317E). For relief from
20
liability, see section 1317S.
21
Note 2:
Section 908DD (about geographical scope) causes this subsection to
22
be read down so that it covers persons who are Australian entities, or
23
persons whose acts or omissions occur wholly or partly in Australia
24
etc.
25
(2) A person contravenes this subsection if:
26
(a) paragraphs (1)(a) to (c) apply in relation to the person, one or
27
more acts or omissions, and a financial benchmark; and
28
(b) the acts or omissions result, or are likely to result, in an
29
Australian entity suffering financial or other disadvantage
30
from use of the financial benchmark.
31
Note 1:
This is a civil penalty provision (see section 1317E). For relief from
32
liability, see section 1317S.
33
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Note 2:
This subsection extends subsection (1) so that persons, who are not
1
otherwise covered, will be covered if a result of their acts or omissions
2
occurs wholly or partly in Australia etc.
3
Offence
4
(3) A person commits an offence if the person contravenes
5
subsection (1) or (2).
6
Note:
For the penalty for the offence, see section 908DC. For its
7
geographical scope, see section 908DD.
8
908DB False or misleading statements or information that could
9
affect financial benchmarks
10
Civil penalty provisions
11
(1) A person contravenes this subsection if:
12
(a) the person makes one or more statements, or disseminates
13
information; and
14
(b) the statements or information:
15
(i) are false or misleading; or
16
(ii) omit any matter or thing without which the statements
17
or information are misleading; and
18
(c) the person knows the statements or information could be used
19
in the generation or administration of a financial benchmark.
20
Note 1:
This is a civil penalty provision (see section 1317E). For relief from
21
liability, see section 1317S.
22
Note 2:
Section 908DD (about geographical scope) causes this subsection to
23
be read down so that it covers persons who are Australian entities, or
24
persons whose conduct occurs wholly or partly in Australia etc.
25
(2) A person contravenes this subsection if:
26
(a) paragraphs (1)(a) to (c) apply in relation to the person, one or
27
more statements or information, and a financial benchmark;
28
and
29
(b) making the statements or disseminating the information
30
results, or is likely to result, in an Australian entity suffering
31
financial or other disadvantage from use of the financial
32
benchmark.
33
Note 1:
This is a civil penalty provision (see section 1317E). For relief from
34
liability, see section 1317S.
35
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31
Note 2:
This subsection extends subsection (1) so that persons, who are not
1
otherwise covered, will be covered if a result of their conduct occurs
2
wholly or partly in Australia etc.
3
Offence
4
(3) A person commits an offence if the person contravenes
5
subsection (1) or (2).
6
Note:
For the penalty for the offence, see section 908DC. For its
7
geographical scope, see section 908DD.
8
908DC Penalties for offences against this Division
9
Penalty for an individual
10
(1) An offence against this Division committed by an individual is
11
punishable on conviction by either or both of the following:
12
(a) imprisonment for not more than 10 years;
13
(b) a fine of not more than the greater of:
14
(i) 4,500 penalty units; and
15
(ii) if the court can determine the total value of the benefits
16
that have been obtained by one or more persons and are
17
reasonably attributable to the commission of the
18
offence--3 times that total value.
19
Penalty for a body corporate
20
(2) An offence against this Division committed by a body corporate is
21
punishable on conviction by a fine of not more than the greater of:
22
(a) 45,000 penalty units; and
23
(b) if the court can determine the total value of the benefits that
24
have been obtained by one or more persons and are
25
reasonably attributable to the commission of the offence--3
26
times that total value; and
27
(c) if the court cannot determine the total value of those
28
benefits--10% of the body corporate's annual turnover
29
during the 12-month period ending at the end of the month in
30
which the body corporate committed, or began committing,
31
the offence.
32
Schedule 1 Financial benchmarks
Part 1 Main amendments
32
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
908DD Geographical scope of offences and civil penalty provisions
1
Offences
2
(1) Section 15.2 of the Criminal Code (extended geographical
3
jurisdiction--category B) applies to each offence against this
4
Division.
5
Contraventions of civil penalty provisions
6
(2) A declaration of contravention by a person must not be made under
7
section 1317E relating to an alleged contravention by the person of
8
a civil penalty provision in this Division unless:
9
(a) the person's conduct that allegedly contravenes the provision
10
occurs:
11
(i) wholly or partly in Australia; or
12
(ii) wholly or partly on board an Australian aircraft or an
13
Australian ship; or
14
(b) the person's conduct that allegedly contravenes the provision
15
occurs wholly outside Australia and a result of the conduct
16
occurs:
17
(i) wholly or partly in Australia; or
18
(ii) wholly or partly on board an Australian aircraft or an
19
Australian ship; or
20
(c) the person's conduct that allegedly contravenes the provision
21
occurs wholly outside Australia and, at the time of the
22
alleged contravention, the person is an Australian entity.
23
Defences relating to contraventions of civil penalty provisions
24
(3) In proceedings under section 1317E for a declaration of
25
contravention by a person relating to an alleged contravention by
26
the person of a civil penalty provision in this Division, it is a
27
defence if:
28
(a) the conduct constituting the alleged contravention occurs
29
wholly in a foreign country, but not on board an Australian
30
aircraft or an Australian ship; and
31
(b) the person is neither:
32
(i) an Australian citizen; nor
33
(ii) a body corporate incorporated by or under a law of the
34
Commonwealth or of a State or Territory; and
35
Financial benchmarks Schedule 1
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Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
33
(c) there is not in force in:
1
(i) the foreign country where the conduct constituting the
2
alleged contravention occurs; or
3
(ii) the part of the foreign country where the conduct
4
constituting the alleged contravention occurs;
5
a law of that foreign country, or a law of that part of that
6
foreign country, that provides for a pecuniary or criminal
7
penalty for such conduct.
8
(4) A defendant bears an evidential burden in relation to the matter in
9
subsection (3).
10
Attorney-General's consent needed for certain proceedings
11
(5) The Attorney-General's prior written consent must be obtained to
12
commence proceedings under section 1317E for a declaration of
13
contravention by a person relating to an alleged contravention by
14
the person of a civil penalty provision in this Division if:
15
(a) the conduct constituting the alleged contravention occurs
16
wholly in a foreign country; and
17
(b) at the time of the alleged contravention, the person is neither:
18
(i) an Australian citizen; nor
19
(ii) a body corporate incorporated by or under a law of the
20
Commonwealth or of a State or Territory.
21
When conduct taken to occur partly in Australia
22
(6) For the purposes of (but without limiting) this section, if a person
23
sends a thing, or causes a thing to be sent:
24
(a) from a point outside Australia to a point in Australia; or
25
(b) from a point in Australia to a point outside Australia;
26
that conduct is taken to have occurred partly in Australia.
27
(7) For the purposes of (but without limiting) this section, if a person
28
sends, or causes to be sent, an electronic communication:
29
(a) from a point outside Australia to a point in Australia; or
30
(b) from a point in Australia to a point outside Australia;
31
that conduct is taken to have occurred partly in Australia.
32
Schedule 1 Financial benchmarks
Part 1 Main amendments
34
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
Definitions
1
(8) In this section:
2
Australian aircraft has the same meaning as in the Criminal Code.
3
Australian ship has the same meaning as in the Criminal Code.
4
conduct has the same meaning as in the Criminal Code.
5
electronic communication has the same meaning as in the
6
Criminal Code.
7
evidential burden has the same meaning as in the Criminal Code.
8
foreign country has the same meaning as in the Criminal Code.
9
point has the same meaning as in section 16.2 of the Criminal
10
Code.
11
Division 5--Other provisions
12
908EA Making provision by referring to instruments as in force
13
from time to time
14
(1) This section applies to the following instruments:
15
(a) regulations made for the purposes of a provision of this Part;
16
(b) rules made under Division 3.
17
(2) An instrument to which this section applies may make provision in
18
relation to a matter by applying, adopting or incorporating any
19
matter contained in an instrument or other writing:
20
(a) as in force or existing at a particular time; or
21
(b) as in force or existing from time to time.
22
(3) Subsection (2) has effect despite subsection 14(2) of the
23
Legislation Act 2003.
24
908EB Exemptions by the regulations or by ASIC
25
(1) The provisions covered by this section are:
26
(a) the following provisions:
27
(i) the provisions of this Part;
28
Financial benchmarks Schedule 1
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No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
35
(ii) the provisions of regulations made for the purposes of
1
provisions of this Part;
2
(iii) the provisions of rules made under Division 3; and
3
(b) definitions in this Act, or in the regulations, as they apply to
4
references in provisions referred to in paragraph (a).
5
(2) The regulations, or ASIC by written instrument, may:
6
(a) exempt a person or class of persons from all or specified
7
provisions covered by this section; or
8
(b) exempt a financial benchmark or class of financial
9
benchmarks from all or specified provisions covered by this
10
section.
11
(3) An exemption may apply unconditionally or subject to specified
12
conditions. A person to whom a condition specified in an
13
exemption applies must comply with the condition. The Court
14
may, on application by ASIC, order the person to comply with the
15
condition in a specified way.
16
(4) An exemption by ASIC is a legislative instrument if the exemption
17
is expressed to apply in relation to:
18
(a) a class of persons; or
19
(b) a class of financial benchmarks;
20
(whether or not it is also expressed to apply in relation to one or
21
more persons or financial benchmarks identified otherwise than by
22
reference to membership of a class).
23
(5) If subsection (4) does not apply to an exemption by ASIC, ASIC
24
must publish the exemption.
25
(6) If there is an inconsistency between:
26
(a) an exemption prescribed by regulations made for the
27
purposes of subsection (2); and
28
(b) an exemption by ASIC under that subsection;
29
(including in relation to any conditions specified by ASIC), the
30
regulations prevail to the extent of the inconsistency.
31
Schedule 1 Financial benchmarks
Part 2 Main consequential amendments
36
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
Part 2--Main consequential amendments
1
Corporations Act 2001
2
2 Section 9
3
Insert:
4
benchmark administrator licence means a licence granted under
5
section 908BC.
6
benchmark administrator licensee means a person who holds a
7
benchmark administrator licence.
8
3 Section 9 (paragraph (c) of the definition of civil penalty
9
order)
10
Omit "or 1317HB", substitute ", 1317HB or 1317HC".
11
4 Section 9
12
Insert:
13
compelled financial benchmark rules means rules made under
14
section 908CD.
15
financial benchmark has the meaning given by section 908AB.
16
financial benchmark data means:
17
(a) information obtained to generate or administer a financial
18
benchmark; or
19
(b) information (including statistical data) that is created or
20
derived from information referred to in paragraph (a).
21
financial benchmark rules means rules made under
22
section 908CA.
23
Regulatory Powers Act means the Regulatory Powers (Standard
24
Provisions) Act 2014.
25
significant financial benchmark has the meaning given by
26
section 908AC.
27
Financial benchmarks Schedule 1
Main consequential amendments Part 2
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
37
5 Paragraph 199A(2)(b)
1
Omit "or 1317HB", substitute ", 1317HB or 1317HC".
2
6 Subsection 199A(3) (note 1)
3
Omit "or 1317HB", substitute ", 1317HB or 1317HC".
4
7 Section 761A
5
Insert:
6
Australian entity means:
7
(a) an Australian citizen; or
8
(b) a resident of Australia (within the meaning of the Criminal
9
Code); or
10
(c) a body corporate incorporated by or under a law of the
11
Commonwealth or of a State or Territory.
12
8 Section 761A (note at the end of the definition of financial
13
product)
14
Repeal the note, substitute:
15
Note:
Some references in this Chapter to financial products have effect
16
subject to particular express exclusions (for example, see
17
sections 1010A and 1074A) or inclusions (see section 1040B).
18
9 Section 853B
19
Omit "or a derivative trade repository licensee", substitute ", a
20
derivative trade repository licensee or a benchmark administrator
21
licensee".
22
10 Subsection 853C(1)
23
Omit "or a derivative trade repository licensee", substitute ", a
24
derivative trade repository licensee or a benchmark administrator
25
licensee".
26
11 Paragraphs 853D(2)(a) and (b)
27
Omit "or an Australian derivative trade repository licence", substitute ",
28
an Australian derivative trade repository licence or a benchmark
29
administrator licence".
30
Schedule 1 Financial benchmarks
Part 2 Main consequential amendments
38
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
12 Subsections 853F(1) and (2)
1
Omit "or a derivative trade repository licensee", substitute ", a
2
derivative trade repository licensee or a benchmark administrator
3
licensee".
4
13 Section 853G
5
Omit "or a derivative trade repository licensee", substitute ", a
6
derivative trade repository licensee or a benchmark administrator
7
licensee".
8
14 After section 1040A
9
Insert:
10
1040B Treat certain instruments as if they were financial products
11
and Division 3 financial products
12
(1) This Part applies to bank accepted bills, and to negotiable
13
certificates of deposit, as if they were:
14
(a) financial products; and
15
(b) Division 3 financial products (within the meaning of
16
Division 3).
17
(2) If a term used in this Part is defined outside of this Part by
18
reference to financial products, treat that term when used in this
19
Part as if that reference to financial products included a reference
20
to each of the following:
21
(a) bank accepted bills;
22
(b) negotiable certificates of deposit.
23
(3) Subsections (1) and (2) do not, by implication, affect the
24
interpretation of any other provision:
25
(a) of this Act; or
26
(b) of an instrument made under this Act.
27
15 Paragraph 1100A(1)(b)
28
After "798H(1) (complying with market integrity rules)", insert ",
29
908CF(1) (complying with rules about financial benchmarks)".
30
16 After paragraph 1100A(2)(d)
31
Insert:
32
Financial benchmarks Schedule 1
Main consequential amendments Part 2
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
39
or (e) a benchmark administrator licensee;
1
17 Paragraph 1101B(1)(d)
2
After "a licensed market,", insert "or subsection 908CF(1) (complying
3
with rules about financial benchmarks),".
4
18 Paragraph 1101B(4)(b)
5
After "operating rules of a licensed CS facility", insert ", or a provision
6
of the financial benchmark rules or the compelled financial benchmark
7
rules,".
8
19 Subparagraph 1101B(4)(c)(i)
9
After "a licensed market", insert ", or a provision of the financial
10
benchmark rules or the compelled financial benchmark rules,".
11
20 Subparagraph 1101B(4)(d)(i)
12
After "a licensed market,", insert "or a provision of the financial
13
benchmark rules or the compelled financial benchmark rules,".
14
21 Before paragraph 1312(2)(a)
15
Insert:
16
(aa) subsection 908DA(3) or 908DB(3);
17
22 Subsection 1312(2) (note)
18
After "are", insert "generally".
19
23 Before paragraph 1317C(ge)
20
Insert:
21
(gdf) a decision by ASIC to make a declaration under
22
subsection 908AC(2), or to vary or revoke such a declaration
23
(about significant financial benchmarks); or
24
(gdg) a decision by the Minister under:
25
(i) subsection 908AC(4) to consent to the making of a
26
declaration under subsection 908AC(2); or
27
(ii) subsection 908AD(3) to direct ASIC to revoke a
28
declaration made under subsection 908AC(2); or
29
(gdh) a decision of the Minister under subsection 908BU(2) to
30
disallow a direction or notice given by ASIC under
31
Schedule 1 Financial benchmarks
Part 2 Main consequential amendments
40
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
section 908BT (about compliance directions or notices given
1
to benchmark administrator licensees); or
2
(gdi) a decision by ASIC to make rules under Division 3 of
3
Part 7.5B, or to vary or revoke such rules; or
4
(gdj) a decision by ASIC to do or not do anything under
5
regulations made for the purposes of subsection 908CG(1)
6
(alternatives to civil proceedings for contraventions of rules
7
about financial benchmarks); or
8
(gdk) a decision by the Minister:
9
(i) under subsection 908CM(2) to consent to the making of
10
rules under Division 3 of Part 7.5B; or
11
(ii) under subsection 908CN(3) to direct ASIC to vary or
12
revoke rules made under Division 3 of Part 7.5B; or
13
(gdl) a decision by ASIC to require something, by giving written
14
notice, under the compelled financial benchmark rules; or
15
24 Subsection 1317E(1) (after table item 17)
16
Insert:
17
17A
subsection 908CF(1)
complying with financial benchmark
rules or compelled financial benchmark
rules
17B
subsections 908DA(1) and (2)
and 908DB(1) and (2)
manipulating financial benchmarks
25 At the end of subsection 1317E(1)
18
Add:
19
Note 3:
Section 908DD contains some matters relevant for making
20
declarations of contravention for the civil penalty provisions
21
mentioned in table item 17B (about manipulating financial
22
benchmarks).
23
26 After subsection 1317G(1DB)
24
Insert:
25
Financial benchmark rules and compelled financial benchmark
26
rules
27
(1DC) A Court may order a person to pay the Commonwealth a pecuniary
28
penalty if:
29
Financial benchmarks Schedule 1
Main consequential amendments Part 2
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
41
(a) a declaration of contravention by the person has been made
1
under section 1317E; and
2
(b) the contravention is of subsection 908CF(1) (complying with
3
rules about financial benchmarks).
4
(1DD) The maximum amount that the court may order the person to pay
5
for contravening a financial benchmark rule, or a compelled
6
financial benchmark rule, is the penalty amount specified in those
7
rules for the rule that has been contravened.
8
Manipulating financial benchmarks
9
(1DE) A Court may order a person to pay the Commonwealth a pecuniary
10
penalty if:
11
(a) a declaration of contravention by the person has been made
12
under section 1317E; and
13
(b) the contravention is of subsection 908DA(1) or (2) or
14
908DB(1) or (2).
15
(1DF) The maximum amount that the court may order the person to pay
16
for contravening a provision mentioned in paragraph (1DE)(b) is:
17
(a) $200,000 for an individual; or
18
(b) $1 million for a body corporate.
19
27 After section 1317HB
20
Insert:
21
1317HC Compensation orders--financial benchmark rules or
22
compelled financial benchmark rules
23
Compensation for damage suffered
24
(1) A Court may order a person (the liable person) to compensate
25
another person (including a corporation), or a registered scheme,
26
for damage suffered by the person or scheme if:
27
(a) the liable person has contravened subsection 908CF(1)
28
(complying with rules about financial benchmarks); and
29
(b) the damage resulted from the contravention.
30
The order must specify the amount of compensation.
31
Note:
An order may be made under this subsection whether or not a
32
declaration of contravention has been made under section 1317E.
33
Schedule 1 Financial benchmarks
Part 2 Main consequential amendments
42
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
Damage includes profits
1
(2) In determining the damage suffered by a person or scheme for the
2
purposes of making a compensation order, include profits made by
3
any person resulting from the contravention.
4
Damage to scheme includes diminution of value of scheme
5
property
6
(3) In determining the damage suffered by a registered scheme for the
7
purposes of making a compensation order, include any diminution
8
in the value of the property of the scheme.
9
Recovery of damage
10
(4) A compensation order may be enforced as if it were a judgment of
11
the Court.
12
28 Subsection 1317S(1) (paragraphs (a) and (b) of the
13
definition of eligible proceedings)
14
Omit "or 1317HB", substitute ", 1317HB or 1317HC".
15
29 Section 1324B
16
After "section 901E or 903D", insert ", subsection 908CF(1)".
17
30 Subsections 1325(1), (2) and (3)
18
After "subsection 798H(1)" (wherever occurring), insert "or 908CF(1)".
19
31 In the appropriate position in Chapter 10
20
Insert:
21
Part 10.30--Transitional provisions relating to the
22
Treasury Laws Amendment (2017
23
Measures No. 5) Act 2017
24
25
1639 Definitions
26
In this Part:
27
start day means the later of:
28
Financial benchmarks Schedule 1
Main consequential amendments Part 2
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
43
(a) 1 January 2018; and
1
(b) the day after the Treasury Laws Amendment (2017 Measures
2
No. 5) Act 2017 receives the Royal Assent.
3
1640 Application--obligation to comply with rules about financial
4
benchmarks
5
Subsection 908CF(1) applies on or after the start day in relation to
6
rules made before, on or after that day.
7
1641 Application--offences relating to manipulation of financial
8
benchmarks
9
Division 4 of Part 7.5B applies in relation to acts or omissions
10
occurring on or after the start day (whether or not the financial
11
benchmark to which the acts or omissions relate is first generated
12
or administered before, on or after the start day).
13
1642 Application--extended meaning of financial products and
14
Division 3 financial products for Part 7.10
15
Section 1040B applies in relation to acts or omissions occurring on
16
or after the start day (whether or not the bank accepted bills or
17
negotiable certificates of deposit to which the acts or omissions
18
relate are issued before, on or after the start day).
19
Schedule 1 Financial benchmarks
Part 3 Other consequential amendments
44
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
No. , 2017
Part 3--Other consequential amendments
1
Treasury Laws Amendment (2016 Measures No. 1) Act 2017
2
32 Items 27 and 28 of Schedule 5
3
Repeal the items, substitute:
4
27 Section 1324B
5
After "subsection 908CF(1)", insert "or 981M(1)".
6
28 Subsections 1325(1), (2) and (3)
7
Omit "or 908CF(1)" (wherever occurring), insert ", 908CF(1) or
8
981M(1)".
9
Indigenous policy and program evaluation Schedule 2
No. , 2017
Treasury Laws Amendment (2017 Measures No. 5) Bill 2017
45
Schedule 2--Indigenous policy and program
1
evaluation
2
3
Productivity Commission Act 1998
4
1 Section 3
5
Insert:
6
Indigenous person means a person who is:
7
(a) a member of the Aboriginal race of Australia; or
8
(b) a descendant of an Indigenous inhabitant of the Torres Strait
9
Islands.
10
2 Paragraph 23(1)(b)
11
Omit "11", substitute "12".
12
3 Paragraph 23(2)(c)
13
Repeal the paragraph, substitute:
14
(c) the lack of a Commissioner who meets the requirements of
15
subsection 24(3), (4), (5) or (6) for a period of not more than
16
4 months.
17
4 At the end of section 24
18
Add:
19
(6) At least one Commissioner must:
20
(a) have extensive skills and experience in dealing with policies
21
and programs that have an impact on Indigenous persons; and
22
(b) have experience in dealing with one or more communities of
23
Indigenous persons.
24
5 Subsections 26(3), (4) and (5)
25
Repeal the subsections.
26
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