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Banking Act 1959
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Department of the Treasury
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C2017C00067 C49
01 March 2017
-
04 March 2018
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Part I—Preliminary
1 Short title
2 Commencement
4 Repeal
5 Interpretation
6 Application of Act
6A Cessation of application of Act to Territory
6B Application of Criminal Code
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Part II—Provisions relating to the carrying on of banking business
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Division 1—Authority to carry on banking business
7 Person other than a body corporate must not carry on banking business
8 Only the Reserve Bank and bodies corporate that are ADIs may carry on banking business
9 Authority to carry on banking business
9A Revocation of authority
9B Bodies that cease to exist or change their names
9C Publication of list of ADIs
10 APRA to be supplied with certain documents
11 APRA may determine that provisions of this Act do not apply
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Division 1AA—Authority to be a NOHC of an ADI
11AA Authority to be a NOHC
11AB Revocation of authority
11AC Bodies that cease to exist or change their names
11AD Publication of list of NOHCs
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Division 1A—Prudential supervision and monitoring of ADIs and authorised NOHCs
11AF APRA may make prudential standards for ADIs and authorised NOHCs
11A Prudential requirements may also be prescribed by the regulations
11B APRA to monitor prudential matters
11C Division not to limit operation of other provisions
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Division 1BA—APRA’s power to issue directions
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Subdivision A—Directions other than to enforce certified industry support contracts
11CA APRA may give directions in certain circumstances
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Subdivision B—Directions to enforce certified industry support contracts
11CB APRA may certify an industry support contract
11CC APRA may direct parties to an industry support contract to comply with the contract
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Subdivision C—General provisions relating to all directions
11CD Direction not grounds for denial of obligations
11CE Supply of information about issue and revocation of directions
11CF Secrecy requirements
11CG Non-compliance with a direction
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Division 1B—Provisions relating to certain ADIs
11E Division 2 not applicable to foreign ADIs
11F Assets of foreign ADIs
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Division 2—Protection of depositors
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Subdivision A—General provisions relating to depositor protection
12 APRA to protect depositors
13 ADI to supply information to APRA
13A Consequences of inability or failure of ADI to meet obligations
13B Investigators—ADI must provide information and facilities
13BA Start of control of ADI’s business by ADI statutory manager
13C ADI statutory managers—termination of control
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Subdivision AA—Recapitalisation directions by APRA
13D Who this Subdivision applies to
13E Recapitalisation direction by APRA
13F Additional contents of a recapitalisation direction
13G Compliance with a recapitalisation direction
13H APRA must obtain expert’s report on the fair value of shares etc.
13J Determination of the fair value of shares by an expert
13K Determination of the fair value of rights by an expert
13L Ascertaining the fair value of other capital instruments
13M Contravention of certain provisions does not affect the validity of recapitalisation direction etc.
13N Recapitalisation direction not grounds for denial of obligations
13P Supply of information about issue and revocation of recapitalisation directions
13Q Non-compliance with a recapitalisation direction
13R Exceptions to Part IV of the Competition and Consumer Act 2010
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Subdivision B—Provisions dealing with control of an ADI’s business by an ADI statutory manager
14A ADI statutory manager’s powers and functions
14AA ADI statutory manager’s additional powers to facilitate recapitalisation
14AB Considering report before acting under section 14AA
14AC Act under section 14AA not ground for denying obligation
14AD APRA may require a person to give information etc. for the purposes of this Division
14B Administrator in control—additional powers to recommend action by APRA
14C ADI statutory manager’s liabilities and duties
14D Administrator in control—additional duties
14DAA Administrator in control—additional duties where action may affect financial system stability in Australia
14DA Administrator in control—additional duties where action may affect financial system stability in New Zealand
14E Termination of administrator’s appointment
14F APRA’s powers to apply for ADI to be wound up
15 Effect on directors of ADI statutory manager taking control of an ADI’s business
15A Effect on external administrator of ADI statutory manager taking control of an ADI’s business
15B Effect on legal proceedings of ADI statutory manager taking control of an ADI’s business
15C ADI statutory manager being in control not grounds for denial of obligations
15D Continued application of other provisions
16 Costs of statutory management
16A APRA must report to Treasurer and publish information about statutory management
16AA Exceptions to Part IV of the Competition and Consumer Act 2010
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Division 2AA—Financial claims scheme for account-holders with insolvent ADIs
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Subdivision A—Preliminary
16AB Purpose of this Division
16AC APRA’s functions relating to this Division
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Subdivision B—Declaration of ADI
16AD Declaration that Subdivision C applies in relation to ADI
16AE Advice and information for decision on making declaration
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Subdivision C—Payment of account-holders with declared ADI
16AF Payment of account-holders with declared ADI
16AG Limit on payments to account-holder with declared ADI
16AH Payment
16AHA Giving information about payments in a financial year
16AI Substitution of APRA for account-holder as ADI’s creditor
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Subdivision D—Administration
16AJ Requiring assistance
16AK Obtaining information relevant to determining and paying entitlements
16AL Enforcing requirement for assistance or information
16AM Recovery of overpayments
16AN APRA may delegate functions and powers under this Division
16AO APRA’s costs of administration
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Subdivision E—Account-holder’s claims against ADI remaining after entitlement
16AP When this Subdivision applies
16AQ Liquidator may admit debt or claim without normal proof
16AR How liquidator must pay distributions to account-holder
16AS APRA may disclose relevant personal information to liquidator
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Subdivision F—Disclosure of information relating to new accounts
16AT APRA or liquidator to disclose information to ADI
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Subdivision G—Exceptions to Part IV of the Competition and Consumer Act 2010
16AU Exceptions to Part IV of the Competition and Consumer Act 2010
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Division 2A—Auditors of ADIs and authorised NOHCs and their subsidiaries
16AV Appointed auditor’s functions and duties
16B Auditors to give information to APRA on request
16BA Requirement for auditors to give information about ADIs
16C Auditor may provide information to APRA
16D Appointed auditor must notify APRA of attempts to unduly influence etc. the appointed auditor
16E Giving false or misleading information to auditor
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Division 2B—Removal of auditors of ADIs
17 APRA may remove an auditor of an ADI
18 Referring matters to professional associations for auditors
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Division 2C—Enforceable undertakings
18A Enforceable undertakings
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Division 3—Governance
19 Disqualified persons must not act for ADIs or authorised NOHCs
20 Who is a disqualified person?
21 Court power of disqualification
22 Court power to revoke or vary a disqualification etc.
22A Privilege against exposure to penalty—disqualification under section 21
23 APRA may remove a director or senior manager of an ADI or authorised NOHC
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Division 3A—Covered bonds
24 Guide to this Division
25 Application of Division
26 Covered bonds
27 Arrangements involving several ADIs
28 Restrictions on issuing covered bonds—8% rule
29 Restrictions on issuing covered bonds—APRA directions
30 Cover pool monitors
31 Assets that may be in cover pools
31A Maintenance of cover pools
31B Protection of certain contractual rights
31C Powers and obligations of ADI statutory manager or external administrator
31D Prudential standards—treatment of assets and liabilities
31E Prudential standards for covered bonds
31F APRA may direct covered bond special purpose vehicles to return certain assets
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Division 4—Mobilization of foreign currency
32 Interpretation
33 Transfer of foreign currency to Reserve Bank
34 Payment for transferred foreign currency
35 Sale of foreign currency by Reserve Bank
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Division 5—Advances
36 Advance policy
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Part IIA—ADI mergers (operation of State and Territory laws)
38A Operation of certain State and Territory laws relating to ADI mergers
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Part III—Foreign exchange, foreign investment etc.
39 Power to make regulations
39A Extra-territorial application of regulations
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Part IV—Gold
40 Operation of Part
41 Transfer of gold out of Australia
42 Delivery of gold
43 Vesting of gold delivered
44 Payment for gold
45 Limitation of sale and purchase of gold
46 Limitation on working of gold
47 Application of Part
48 Exemptions
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Part V—Interest rates
50 Control of interest rates
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Part VI—Reconsideration and Review of decisions
51A Definitions
51B Reconsideration of decisions
51C Review of decisions
51D Statements to accompany notification of decisions
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Part VIA—Protections in relation to information
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Division 1—Protection for whistleblowers
52A Disclosures qualifying for whistleblower protection
52B Whistleblower protection for disclosures that qualify
52C Victimisation of whistleblowers prohibited
52D Right to compensation
52E Confidentiality requirement for company, company officers and employees and auditors
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Division 2—Self-incrimination
52F Self-incrimination
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Part VII—Miscellaneous
60 Keeping of financial records
61 APRA may conduct investigations
62 Supply of information
62A Notices to APRA
62B Involving APRA in applications to appoint external administrators of ADIs
62C Involving APRA in applications by liquidator
63 Restructuring of ADIs
64 Conditions on consent to restructure an ADI
65 ADIs and authorised NOHCs may be directed to comply with Act
65A Injunctions
65B Civil penalties
66 Restriction on use of certain words and expressions
66A Restriction on use of expressions authorised deposit-taking institution and ADI
67 Restriction on establishment or maintenance of representative offices of overseas banks
68 Bank holidays
69 Unclaimed moneys
69A Disclosure of information relating to unclaimed moneys
69B Powers about money of depositors who have died
69C Conduct of directors, employees and agents
69D Disclosure of information received under Act prohibited in certain circumstances
69E Compensation for acquisition of property
69F Severability
70A Protection from liability
70B Act has effect despite the Corporations Act
70C Authorising contracts etc. for protecting depositors’ interests and financial system stability
70D Borrowing funds for payments under authorised contracts etc.
70E Financial System Stability Special Account
70F Credits to the Account
70G Purposes of the Account
70H Debits to reflect reduced amounts specified in authorisations
71 Regulations
Schedule 1—State and Territory laws relating to ADI mergers
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Schedule 2—Civil penalties
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Part 1—Contravention of a civil penalty provision
1 Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision
2 Contravening a civil penalty provision is not an offence
3 Persons involved in contravening civil penalty provision
4 Recovery of a pecuniary penalty
5 Civil evidence and procedure rules for pecuniary penalty orders
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Part 2—Civil penalty proceedings and criminal proceedings
6 Civil proceedings after criminal proceedings
7 Criminal proceedings during civil proceedings
8 Criminal proceedings after civil proceedings
9 Evidence given in proceedings for penalty not admissible in criminal proceedings
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Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
