Payment Systems (Regulation) Act 1998 No. 58, 1998

Payment Systems (Regulation) Act 1998 No. 58, 1998

Contents

Part 1--Preliminary

1 Short title

2 Commencement

3 Crown is bound by this Act

4 Application of this Act to external Territories

5 Application of Criminal Code

6 Overview of Act

Part 2--Interpretation

7 Definitions

8 Meaning of public interest

9 Meaning of purchased payment facility and holder of the stored value

Part 3--Regulation of payment systems

Division 1--Overview

10 Overview of main regulatory provisions

Division 2--Designation of payment systems

11 Reserve Bank may designate payment systems

Division 3--Access to designated systems

Subdivision A--Access regimes

12 Imposition of access regime

13 When access regimes are in force

14 Variation of access regime

15 When access regimes cease to be in force

Subdivision B--Enforcement of access regimes

16 Right to ask Reserve Bank to give a direction

17 Right to apply to the Federal Court

Division 4--Standards for designated systems

18 Reserve Bank may make standards for designated systems

Division 5--Arbitration of disputes relating to designated systems

19 Disputes to which Division applies

20 Arbitration of disputes

Division 6--Directions to participants in designated systems

21 Directions

Part 4--Regulation of purchased payment facilities

22 Holder of stored value must be an ADI or be authorised or exempted under this Part

23 Authority to be the holder of the stored value

24 Directions on failure to comply with conditions

25 Exemptions

Part 5--Miscellaneous

26 Persons to give Reserve Bank information

27 Power to determine requirements for applications

28 Consultation obligations

29 Notification obligations

30 Power to publish by other means

31 Delegation

32 Regulations

Payment Systems (Regulation) Act 1998

No. 58, 1998

An Act to provide for the regulation of payment systems and purchased payment facilities, and for related purposes

Assented to 29 June 1998

The Parliament of Australia enacts:

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 1 Short title

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 2 Commencement

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 3 Crown is bound by this Act

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 4 Application of this Act to external Territories

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 5 Application of Criminal Code

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 6 Overview of Act

Note: The regulation of purchased payment facilities operates through regulation of the holders of the stored value of such facilities.

(3) Part 3 deals with the regulation of payment systems. It provides for:

(a) the designation of payment systems (see Division 2); and

(b) the imposition of access regimes on participants in designated payment systems (see Division 3); and

(c) standards to be complied with by participants in designated payment systems (see Division 4); and

(d) the arbitration of disputes relating to designated payment systems (see Division 5); and

(e) directions to be complied with by participants in designated payment systems (see Division 6).

(5) Part 5 deals with miscellaneous matters.

PAYMENT SYSTEMS (REGULATION) ACT 1998

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- SECT 7 Definitions

access, in relation to a payment system, means the entitlement or eligibility of a person to become a participant in the system, as a user of the system, on a commercial basis on terms that are fair and reasonable.

access regime, in relation to a designated payment system, means an access regime:

(a) that has been imposed by the Reserve Bank under section 12; and

(b) that is in force.

designated payment system means a payment system that is designated under section 11.

Federal Court means the Federal Court of Australia.

holder of the stored value, in relation to a purchased payment facility, has the meaning given by subsection 9(2).

participant in a payment system means:

(a) a constitutional corporation that is a participant in the system in accordance with the rules governing the operation of the system; or

(b) a constitutional corporation that is an administrator of the system.

public interest has the meaning given by section 8.

purchased payment facility means a facility described in subsection 9(1), other than a facility covered by a declaration under

Reserve Bank means the Reserve Bank of Australia.

standard means a standard in force under section 18.

PAYMENT SYSTEMS (REGULATION) ACT 1998

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- SECT 8 Meaning of public interest

(a) being (in its opinion):

(i) financially safe for use by participants; and

(ii) efficient; and

(iii) competitive; and

(b) not (in its opinion) materially causing or contributing to increased risk to the financial system.

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 9 Meaning of purchased payment facility and holder of the stored value

(a) the facility is purchased by a person from another person; and

(b) the facility is able to be used as a means of making payments up to the amount that, from time to time, is available for use under the conditions applying to the facility; and

(c) those payments are to be made by the provider of the facility or by a person acting under an arrangement with the provider (rather than by the user of the facility).

(2) The holder of the stored value, in relation to a purchased payment facility, is the person who is to make payments as mentioned in paragraph (1)(c).

(3) The Reserve Bank may, by notice in writing published in the Gazette, declare that this Act does not apply to a specified facility, or to facilities included in a specified class of facilities, if the Reserve Bank considers that it is not appropriate for this Act to apply to the facility, or to each facility of that class, having regard to:

(a) any restrictions that limit the number or types of people who may purchase the facility; or

(b) any restrictions that limit the number or types of people to whom payments may be made using the facility.

(4) In this section:

(a) a reference to a facility includes a reference to a right to use a facility; and

(b) a reference to the purchase of a facility includes a reference to the payment of an amount for a right to use a facility.

(2) The Reserve Bank has the following powers in relation to a designated payment system:

(a) it may impose an access regime on the participants in the payment system (see Division 3); and

(b) it may make standards to be complied with by participants in the payment system (see Division 4); and

(c) it may arbitrate disputes relating to the payment system (see Division 5); and

(d) it may give directions to participants in the payment system (see Division 6).

(2) The designation has effect until it is revoked.

(3) The Reserve Bank may revoke the designation if it no longer considers that it is in the public interest that the system be designated. The revocation is to be by notice in writing published in the Gazette.

(2) The access regime imposed must be one that the Reserve Bank considers appropriate, having regard to:

(a) whether imposing the access regime would be in the public interest; and

(b) the interests of the current participants in the system; and

(c) the interests of people who, in the future, may want access to the system; and

(d) any other matters the Reserve Bank considers relevant.

(4) The decision to impose the access regime is to be in writing and is to set out the access regime.

(5) As soon as practicable after imposing the access regime, the Reserve Bank must provide notification under section 29.

(6) A failure to comply with subsection (5) does not affect the validity of the access regime.

PAYMENT SYSTEMS (REGULATION) ACT 1998

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- SECT 13 When access regimes are in force

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which the decision to impose the access regime is made; or

(ii) if that decision specifies a later day as the day on which the access regime comes into force--on the day so specified; and

(b) may be varied as provided in section 14; and

(c) remains in force until it ceases to be in force as provided in section 15.

(a) whether the variation would be in the public interest; and

(b) the interests of the current participants in the system; and

(c) the interests of people who, in the future, may want access to the system; and

(d) any other matters the Reserve Bank considers relevant.

(3) The Reserve Bank may vary the access regime without complying with subsection (2) if it considers that the variation is of a minor technical nature.

(4) A decision to vary the access regime is to be in writing and is to set out the variation.

(5) If the Reserve Bank varies the access regime it must, as soon as practicable, provide notification under section 29.

(6) A failure to comply with subsection (5) does not affect the validity of a variation of the access regime.

(7) A variation of the access regime takes effect:

(a) unless paragraph (b) applies--on the day on which the decision to vary the access regime is made; or

(b) if that decision specifies a later day as the day on which the variation


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comes into force--on the day so specified.

(a) the access regime contains an expiry date and that date is reached; or

(b) the Reserve Bank, on the application of the participants in the designated payment system concerned, revokes the access regime; or

(c) the Reserve Bank revokes the access regime on its own initiative; or

(d) the payment system concerned ceases to exist or ceases to be a designated payment system.

(3) The Reserve Bank may revoke the access regime (pursuant to an application or on its own initiative) if the Reserve Bank considers it appropriate to do so, having regard to:

(a) whether revoking the access regime would be in the public interest; and

(b) the interests of the current participants in the system; and

(c) the interests of people who, in the future, may want access to the system; and

(d) any other matters the Reserve Bank considers relevant.

(5) If the Reserve Bank revokes the access regime it must, as soon as practicable, provide notification under section 29.

(6) A failure to comply with subsection (5) does not invalidate the revocation of the access regime.

(7) A revocation of the access regime takes effect:

(a) unless paragraph (b) applies--on the day on which the decision to revoke the access regime is made; or

(b) if that decision specifies a later day as the day on which the revocation takes effect--on the day so specified.

PAYMENT SYSTEMS (REGULATION) ACT 1998

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- SECT 17 Right to apply to the Federal Court

(2) The person must notify the Reserve Bank of the application to the Federal Court. The Reserve Bank may apply to the Federal Court to be joined as a party to the proceedings for the order.

(3) If the Federal Court is satisfied that the participant has breached a provision of the access regime, the Court may make all or any of the following orders:

(a) an order directing the participant to comply with that provision of the access regime;

(b) an order directing the participant to compensate any other person who has suffered loss or damage as a result of the breach;

(c) any other order that the Court considers appropriate.

Note: A failure to comply with a standard is not an offence, but it may lead to a direction being given under section 21.

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which the determination of the standard is made; or

(ii) if that determination specifies a later day as the day on which the standard comes into force--on the day so specified; and

(b) continues in force until it is revoked.

(4) The Reserve Bank must not determine or vary a standard unless it has first consulted in accordance with section 28.

(5) The Reserve Bank may determine or vary a standard without complying with subsection (4) if:

(a) the Reserve Bank considers that there is an urgent need for the determination or variation of the standard; or

(b) in the case of a variation--the Reserve Bank considers that the variation is of a minor technical nature.

(7) A failure to comply with subsection (6) does not affect the validity of a standard or of the variation or revocation of a standard.

(a) a dispute between 2 or more participants in a designated payment system that arises out of, or that is otherwise connected with, that system;

(b) a dispute between a person and 2 or more participants in a designated payment system for which there is an access regime, being a dispute relating to whether the access regime is being complied with.

(a) it considers that the dispute raises issues related to:

(i) the financial safety of payment systems for participants; or

(ii) the efficiency of payment systems; or

(iii) the competitiveness of payment systems; or

(iv) risk to the financial system; and

(b) the parties to the dispute agree to the Reserve Bank arranging the arbitration.

Note: The Reserve Bank may be acting on its own initiative or in response to a request from one or more of the parties to the dispute in arranging for the arbitration.

(3) The person conducting an arbitration is not subject to any action, claim or demand by, or liable to, any person in respect of anything done, or omitted to be done, in good faith in connection with the arbitration.

(4) The arbitration must be conducted in accordance with the regulations.

(5) The fact the dispute is being, or has been, settled by arbitration under this section does not prevent a party to the dispute from bringing an action in a court in connection with the dispute, unless the court otherwise orders.

(a) the participant has failed to comply with a standard; or

(b) the participant has failed to comply with an access regime.

(3) The direction must be consistent with any applicable standards and with any applicable access regime.

(4) The direction may deal with the time by which, or the period during which, it is to be complied with.

(6) The participant is guilty of an offence if:

(a) the participant does, or fails to do, an act; and

(b) doing, or failing to do, the act results in a contravention of the direction; and

(c) the doing of the act, or the failure to do the act, occurs at a time when:

(i) the participant is still a participant in the payment system referred to in subsection (1); and

(ii) that payment system is still a designated payment system.

Penalty: 50 penalty units

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(a) the day on which the contravention occurs; and

(b) each subsequent day (if any) on which the contravention continues (including the day of conviction for any such offence or any later day).

Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which it is given; or

(ii) if the instrument giving the direction specifies a later day as the day on which it comes into force--on the day so specified; and

(b) continues in force until it is revoked.

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 22 Holder of stored value must be an ADI or be authorised or exempted under this Part

(a) it is the holder of the stored value of a purchased payment facility; and

(b) it is not an authorised deposit-taking institution, within the meaning of the Banking Act 1959; and

(c) there is no authority or exemption in force under section 23 or 25 that applies to the corporation and the purchased payment facility.

Penalty: 200 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(a) the day on which the contravention occurs; and

(b) each subsequent day (if any) on which the contravention continues (including the day of conviction for any such offence or any later day).

Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

(2) The Reserve Bank may grant the authority if it is satisfied that the corporation will be able to satisfy its obligations as the holder of the stored

(3) The grant of the authority is to be by notice in writing given to the corporation.

(4) The Reserve Bank may, at any time, by notice in writing given to the corporation:

(a) impose conditions, or additional conditions, on the authority; and

(b) vary or revoke conditions imposed on the authority.

(5) The authority:

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which it is granted; or

(ii) if the instrument granting the authority specifies a later day as the day on which it comes into force--on the day so specified; and

(b) continues in force until it is revoked.

(a) it is no longer satisfied as mentioned in subsection (2); or

(b) it considers that the corporation has contravened a condition of the authority; or

(c) the corporation applies to the Reserve Bank for revocation of the authority; or

(d) the corporation ceases to be the holder of the stored value of any purchased payment facilities of the relevant class.

(7) If the Reserve Bank:

(a) grants an authority under subsection (2); or

(b) imposes, varies or revokes conditions under subsection (4); or

(c) revokes an authority under subsection (6);

(8) Failure to comply with subsection (7) does not affect the validity of the action concerned.

PAYMENT SYSTEMS (REGULATION) ACT 1998

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- SECT 24 Directions on failure to comply with conditions

(2) The direction is to require the corporation to take specified action, or to refrain from specified action, as the Reserve Bank considers appropriate having regard to the failure.

(3) The direction may deal with the time by which, or the period during which, it is to be complied with.

(4) The direction is to be given by notice in writing given to the corporation.

(5) The corporation is guilty of an offence if:

(a) the corporation does, or fails to do, an act; and

(b) doing, or failing to do, the act results in a contravention of the direction; and

(c) the doing of the act, or the failure to do the act, occurs at a time when;

(i) the authority referred to in subsection (1) is still in force; and

(ii) the corporation is the holder of the stored value of one or more purchased payment facilities of the class to which that authority applies.

Penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(a) the day on which the contravention occurs; and

(b) each subsequent day (if any) on which the contravention continues (including the day of conviction for any such offence or any later day).

Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which it is given; or




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(ii) if the instrument giving the direction specifies a later day as the day on which it comes into force--on the day so specified; and

(b) continues in force until it is revoked.

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 25 Exemptions

(2) The Reserve Bank may be acting on its own initiative or pursuant to an application in granting the exemption. An application for an exemption must comply with the applicable requirements determined under section 27.

(3) The Reserve Bank may grant the exemption if it is satisfied that the corporation, or each of the corporations in the class, will be able to satisfy the obligations of the holder of the stored value of purchased payment facilities of the relevant class.

(4) The exemption is to be granted:

(a) if it applies to a particular corporation--by notice in writing given to the corporation; or

(b) if it applies to a class of corporations--by notice in writing published in the Gazette.

(a) comes into force:

(i) unless subparagraph (ii) applies--on the day on which it is given; or

(ii) if the instrument granting the exemption specifies a later day as the day on which it comes into force--on the day so specified; and

(b) continues in force until it is revoked.

(a) if it applies to a particular corporation--by notice in writing given to the corporation; or

(b) if it applies to a class of corporations--by notice in writing published in the Gazette.

(a) grants an exemption to a particular corporation under subsection (3); or

(b) revokes an exemption under subsection (6), being an exemption granted to a particular corporation;

(8) Failure to comply with subsection (7) does not affect the validity of the action concerned.

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 26 Persons to give Reserve Bank information

(2) The Reserve Bank may require a corporation that is authorised under section 23, or that is exempted under section 25, to give the Reserve Bank information relating to purchased payment facilities of the class to which the authority or exemption relates.

(3) A corporation (including a participant in a payment system) commits an offence if it refuses or fails to comply with a requirement under this section.

Penalty: 200 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

Note 3: The secrecy requirements of Part 6 of the Reserve Bank Act 1959 apply to information provided under this section.

(a) the day on which the refusal or failure occurs; and

(b) each subsequent day (if any) until the requirement is complied with (including the day of conviction for any such offence or any later day).

Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.

(a) the means by which an application is to be made; and

(b) the information or documentation that is to be included in or submitted with an application; and

(c) the verification of an application or of information or documentation included in or submitted with it.

(a) the proposed imposition of an access regime;

(b) the proposed variation of an access regime, other than a variation to which subsection 14(3) applies;

(c) the proposed determination of a standard, other than a determination to which subsection 18(5) applies;

(d) the proposed variation of a standard, other than a variation to which subsection 18(5) applies.

(a) cause a notice to be published in the Gazette:

(i) advising of the proposed action; and

(ii) summarising its purpose and effect; and

(iii) inviting people to make submissions within a specified time to the Reserve Bank on the proposed action; and

(b) consider any submissions that are received within that time limit.

(1) Subsection (2) applies to the following actions taken by the Reserve Bank:

(a) the imposition of an access regime;

(b) the variation of an access regime;

(c) the determination of a standard;

(d) the variation of a standard.

(a) cause a notice to be published in the Gazette:

(i) advising of the action; and

(ii) summarising its purpose and effect; and

(b) take reasonable steps to ensure that the participants in the payment system concerned are informed of the action; and

(c) take reasonable steps to ensure that people will be able to get access to the current text of the standard or the access regime.

(3) If the Reserve Bank revokes a standard or an access regime, the Reserve Bank must:

(a) cause a notice advising of the revocation to be published in the Gazette; and

(b) take reasonable steps to ensure that any participants in the payment system concerned are informed of the revocation.

PAYMENT SYSTEMS (REGULATION) ACT 1998

No. 58, 1998

- SECT 31 Delegation

(a) Governor of the Reserve Bank;

(b) Deputy Governor of the Reserve Bank;

(c) Assistant Governor of the Reserve Bank;

(d) Department Head of the Reserve Bank;

(e) any other prescribed office in the Reserve Bank Service.

(a) Deputy Governor of the Reserve Bank;

(b) Assistant Governor of the Reserve Bank;

(c) Department Head of the Reserve Bank;

(d) any other prescribed office in the Reserve Bank Service.

Note: For further information about delegations, see sections 34AA to 34A of the Acts Interpretation Act 1901.

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient for carrying out or giving effect to this Act.

(29/98)

Minister's second reading speech made in--

House of Representatives on 26 March 1998

Senate on 13 May 1998