An Act to facilitate the integration of certain banks, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Bank Integration Act 1991.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
3 Extension to external Territories
This Act extends to all external Territories.
4 Crown to be bound
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of the Australian Capital Territory.
5 Interpretation
(1) In this Act, unless the contrary intention appears:
asset means property, or a right, of any kind, and includes:
(a) any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property) of any kind; and
(b) any chose in action; and
(c) any right, interest or claim of any kind including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing); and
(e) a CGT asset within the meaning of the Income Tax Assessment Act 1997.
authorised person, in relation to a particular provision, a particular receiving bank and the relevant transferring bank, means:
(a) the Treasurer; or
(b) if the Treasurer designates, in writing:
(i) the chief executive officer or another senior executive of the receiving bank; or
(ii) an SES employee or acting SES employee;
as an authorised officer in relation to that provision and those banks—the officer so designated.
BNZ means Bank of New Zealand.
BNZ Savings means Bank of New Zealand Savings Bank Limited.
business, in relation to a bank, includes the assets and liabilities of the bank.
chief executive officer, in relation to a receiving bank, means the officer having the day to day management of the affairs of the bank and includes an officer acting from time to time in that capacity.
Commonwealth Bank means the Commonwealth Bank of Australia.
Commonwealth Savings Bank means the Commonwealth Savings Bank of Australia.
complementary legislation, in relation to the operation of this Act in respect of a particular receiving bank (other than the Commonwealth Bank or the BNZ) and the relevant transferring bank, means legislation of the kind referred to in subsection 11(1) in relation to those banks.
incorporating State means:
(a) in relation to a receiving bank other than the Commonwealth Bank, the Westpac Banking Corporation or BNZ—the State in which the bank was incorporated; and
(b) in relation to the Westpac Banking Corporation—New South Wales.
instrument includes a document and an oral agreement.
interest, in relation to land, includes:
(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in relation to, the land.
liability includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).
parallel New Zealand legislation, in relation to the operation of this Act in respect of BNZ and BNZ Savings, means a law of New Zealand to vest the undertaking of BNZ Savings in BNZ and to enable the subsequent dissolution of BNZ Savings.
proceeding to which this Act applies, in relation to a receiving bank, means a legal proceeding (including a proceeding before an administrative tribunal or an arbitration) that relates to business that becomes transferred business in relation to that bank.
receiving bank means a bank whose name is included in Column 1 of Schedule 1.
relevant receiving bank, in relation to a transferring bank, means the receiving bank whose name is included in Column 1 of Schedule 1 opposite the name of the transferring bank in Column 2 of that Schedule.
relevant transferring bank, in relation to a receiving bank, means a transferring bank whose name is included in Column 2 of Schedule 1 opposite the name of the receiving bank in Column 1 of that Schedule.
security, in relation to payment of a debt or other liability, includes an agreement to give such a security on demand or otherwise.
succession day, in relation to a receiving bank and a relevant transferring bank, means the day fixed under section 9 as the succession day for those banks.
tax includes:
(b) stamp duty; and
(c) any other tax, duty, levy or charge; and
(d) any fee (however described) that is not a tax.
transferred asset, in relation to a receiving bank, means an asset that has become, under this Act, an asset of the receiving bank.
transferred business, in relation to a receiving bank, means the business that has become, under this Act, business of the receiving bank.
transferred liability, in relation to a receiving bank, means a liability that has become, under this Act, a liability of the receiving bank.
transferring bank means a bank whose name is included in Column 2 of Schedule 1.
translated instrument, in relation to a particular transferring bank, means an instrument (including a legislative instrument other than this Act) subsisting immediately before the succession day for that bank and the relevant receiving bank:
(a) to which the transferring bank is a party; or
(b) that was given to, by or in favour of, the transferring bank; or
(c) that refers to the transferring bank; or
(d) under which money is, or may become, payable, or other property is, or may become, liable to be transferred, to or by the transferring bank.
(2) Where reference is made in this Act to anything done for a purpose connected with, or arising out of, the operation or effect of this Act or of any complementary legislation or any parallel New Zealand legislation, that reference is taken to include any transaction entered into, or any instrument or document made, executed, lodged or given, for that purpose.
6 Extra‑territorial operation of Act
(1) It is the intention of the Parliament that this Act should apply, as far as possible, in relation to the following:
(a) land outside Australia;
(b) things outside Australia;
(c) acts, transactions and matters done, entered into or occurring outside Australia;
(d) land, things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a foreign country.
(2) Subsection (1) applies to BNZ and BNZ Savings only in so far as the extraterritorial operation of the Act is necessary to deal with the business of BNZ Savings that relates to its Australian operations.
Part 2—Steps leading to bank reorganisations
7 Notice of proposed bank reorganisation
(1) Where, having regard to Commonwealth Government policy concerning integration of banks, a receiving bank (other than BNZ) and the relevant transferring bank agree to seek the statutory vesting of the business of the transferring bank in the receiving bank, the receiving bank may give notice in writing of their agreement:
(a) to the Reserve Bank; and
(b) to the Treasurer.
(2) Where, having regard to Commonwealth Government policy concerning integration of banks, BNZ and BNZ Savings agree to seek the statutory vesting of the business of BNZ Savings that relates to its Australian operations in BNZ, BNZ may give notice in writing of their agreement:
(a) to the Reserve Bank; and
(b) to the Treasurer.
8 Reserve Bank certification
(1) Where the Reserve Bank receives notice of a proposal under paragraph 7(1)(a) from a receiving bank, it must, through the exercise of its powers under Part II of the Banking Act 1959, satisfy itself that the interests of the depositors of both the receiving bank and of the relevant transferring bank would be adequately protected if the vesting proceeds, and, if it is so satisfied, must certify to that effect to the Treasurer.
(2) Where the Reserve Bank receives a notice of a proposal under paragraph 7(2)(a) from BNZ, it must, through the exercise of its powers under Part II of the Banking Act 1959, satisfy itself that the interests of the depositors of BNZ in its Australian operations and of BNZ Savings in its Australian operations would be adequately protected if the vesting proceeds, and, if it is so satisfied, must certify to that effect to the Treasurer.
9 Treasurer may fix succession day for a particular receiving bank and transferring bank
(1) Subject to sections 10 and 11, where the Treasurer receives notice of a proposal under paragraph 7(1)(b) from a receiving bank, he or she may:
(a) if the receiving bank is the Commonwealth Bank—in consultation with the chief executive officer of the bank; and
(b) if the receiving bank is another bank—in consultation with the Treasurer (however described) of the incorporating State and the chief executive officer of the bank;
by notice published in the Gazette, fix a day on which the business of the relevant transferring bank is to vest in the receiving bank.
(2) Subject to section 10, where the Treasurer receives notice of a proposal under paragraph 7(2)(b) from BNZ, he or she may, in consultation with the Minister of Finance of New Zealand and the chief executive officer of BNZ, by notice published in the Gazette, fix a day on which the business of BNZ Savings that relates to its Australian operations is to vest in BNZ.
(3) The day fixed in a notice under subsection (1) or (2) is to be called the succession day for the receiving bank and the relevant transferring bank referred to in the notice and must not be a day occurring before the day of publication of the notice.
10 Interests of depositors of transferring banks to be protected
The Treasurer must not fix a succession day for a receiving bank and a relevant transferring bank unless the Treasurer is satisfied, having regard to the certificate given to the Treasurer by the Reserve Bank under section 8 and to any other relevant matter of which the Treasurer is aware, that the interests of the depositors of the receiving and transferring banks are adequately protected.
11 Complementary legislation to be enacted
(1) The Treasurer must not fix a succession day for a receiving bank (other than the Commonwealth Bank or BNZ) and the relevant transferring bank unless he or she is satisfied that legislation has been enacted in the State in which both the transferring bank and the receiving bank are established to facilitate the proposed vesting of the business of the transferring bank in the receiving bank.
(2) Complementary legislation under subsection (1) must include provision:
(a) to ensure that the receiving bank is taken, on the succession day, to be the successor in law to the transferring bank; and
(b) without limiting the generality of the concept of successor in law, to ensure that, on the succession day:
(i) the assets of the transferring bank vest in, or are otherwise available for the use of, the receiving bank; and
(ii) the liabilities of the transferring bank become liabilities of the receiving bank; and
(c) to secure exemption from any tax imposed under the law of that State in respect of:
(i) the operation or effect of this Act or that complementary legislation; or
(ii) anything done for a purpose connected with, or arising out of, that operation or effect; and
(d) to provide for the dissolution on the succession day of the company that operated as the transferring bank.
(3) In subsection (2):
tax, in relation to the complementary legislation of a particular State, does not include any fee or tax prescribed by the Corporations Regulations of that State.
Part 3—Bank reorganisations
12 Consequence of succession day
(1) On the succession day for a receiving bank (other than BNZ) and the relevant transferring bank, the receiving bank becomes the successor in law of the transferring bank.
(2) On the succession day for BNZ and BNZ Savings, the business of BNZ Savings that relates to its Australian operations ceases to be the business of that bank and becomes the business of BNZ.
13 Assets and liabilities
(1) Without limiting, by implication, the operation of subsection 12(1), on the succession day for a receiving bank and the relevant transferring bank:
(a) all assets of the transferring bank, wherever located, vest in, or are otherwise available for the use of, the receiving bank; and
(b) all liabilities of the transferring bank, wherever located, become liabilities of the receiving bank.
(2) Without limiting, by implication, the operation of subsection 12(2), on the succession day for BNZ and BNZ Savings:
(a) all assets of BNZ Savings, wherever located, acquired in respect of the business of BNZ Savings that relates to its Australian operations:
(i) vest in, or are otherwise available for the use of, BNZ; and
(ii) are to be treated as assets acquired in respect of the business of BNZ that relates to its Australian operations; and
(b) all liabilities of BNZ Savings, wherever located, incurred in respect of the business of BNZ Savings that relates to its Australian operations:
(i) become liabilities of BNZ; and
(ii) are to be treated as liabilities incurred in respect of the business of BNZ that relates to its Australian operations.
14 Translated instruments
(1) Subject to subsection (2), each translated instrument in respect of a particular transferring bank continues to have effect, according to its tenor, on and after the succession day for that bank and the relevant receiving bank, as if a reference in the instrument to the transferring bank were a reference to the receiving bank.
(2) In its application to translated instruments in respect of BNZ Savings, subsection (1) applies to those instruments only in so far as they relate to business of the bank relating to its Australian operations.
15 Places of business
(1) Subject to subsection (2), on and after the succession day for a receiving bank and the relevant transferring bank, a place that, immediately before that day, was a place of business for the transferring bank is taken to be a place of business for the receiving bank.
(2) In its application to BNZ and BNZ Savings, subsection (1) applies only to places of business in Australia or the external Territories.
16 Transferring banks to lose authority to carry on banking business
On the succession day for a receiving bank (other than the Commonwealth Bank) and the relevant transferring bank, the authority to carry on banking business in Australia that was granted to the transferring bank under section 9 of the Banking Act 1959 is revoked.
17 Legal proceedings and evidence
(1) Subject to subsection (2), where, immediately before the succession day for a receiving bank and the relevant transferring bank, proceedings (including arbitration proceedings) to which the transferring bank was a party were pending or existing in any court or tribunal, the receiving bank is, on that day, substituted for the transferring bank as a party to the proceedings and has the same rights in the proceedings as the transferring bank had.
(2) Subsection (1) only applies to proceedings to which BNZ Savings was a party if those proceedings relate to the business of that bank that relates to its Australian operations.
(3) Where, before the succession day for a receiving bank and the relevant transferring bank, documentary or other evidence would have been admissible for or against the interests of the transferring bank, that evidence is admissible, on or at any time after that day, for or against the interests of the receiving bank.
18 Permitted business names
(1) For a period of 6 months beginning on the succession day in relation to a transferring bank whose name is included in Column 1 of Schedule 2, the relevant receiving bank may operate in a State or Territory under any name (in this section called a permitted business name in relation to that receiving bank) that is included in Column 2 of that Schedule opposite the name of that transferring bank.
(2) This section does not prevent a receiving bank from:
(a) operating in a State or Territory under a name other than a permitted business name; or
(b) registering a name on the Business Names Register established and maintained under section 22 of the Business Names Registration Act 2011.
19 Employment unaffected
(1) This section applies to every person who, immediately before the succession day fixed for a receiving bank and a relevant transferring bank, was performing duty in the transferring bank.
(2) The terms and conditions of employment (including any accrued entitlement to employment benefits) of each person to whom this section applies are not affected by the operation or effect of this Act or of any complementary legislation.
20 Receiving banks to do what is necessary to carry out reorganisation
Each receiving bank must do whatever is necessary to ensure that this Part is fully effective, particularly in relation to its business outside Australia.
Part 4—Taxation matters
21 Exemptions from certain taxes and charges
(1) Tax is not payable under a law of the Commonwealth or of a State or Territory in respect of:
(a) the operation or effect of this Act or of any complementary legislation in its application to the vesting of the business of a transferring bank in the relevant receiving bank; or
(b) anything done for a purpose connected with, or arising out of, that operation or effect.
(2) In its application to BNZ Savings and BNZ, subsection (1) only applies to the business of BNZ Savings that relates to its Australian operations.
(3) In subsection (1):
complementary legislation includes parallel New Zealand legislation.
tax does not include:
(a) any tax assessed under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997; or
(b) any fee or tax prescribed by the Corporations Regulations of the Australian Capital Territory, of the Northern Territory or of any State other than Western Australia; or
(c) any fee prescribed by the Corporations Regulations of Western Australia or any tax imposed by the Corporations (Taxing) Act 1990 of Western Australia.
22 Application of the Income Tax Assessment Acts
(1) Where a succession day is fixed for a receiving bank and the relevant transferring bank, this section applies to the business of that transferring bank that becomes, on that day, the transferred business of the receiving bank.
(2) It is the intention of the Parliament:
(a) that, on and after the succession day for a receiving bank and the relevant transferring bank, the receiving bank should, for all purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997, be placed in the same position in relation to the business to which this section applies as the transferring bank would have been apart from the operation or effect of this Act and of any complementary legislation and from anything done for a purpose connected with, or arising out of, that operation or effect; and
(b) that the operation or effect of this Act and of any complementary legislation and anything done for a purpose connected with, or arising out of, that operation or effect in relation to the business to which this section applies should, for all purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997, be revenue neutral, that is to say that no assessable income, deduction, capital gain or capital loss should be derived, or incurred, or should accrue, by or to the transferring bank or the receiving bank in relation to that business merely because of the operation or effect of this Act and of any complementary legislation or of anything done for a purpose connected with, or arising out of, that operation or effect.
(3) Where a succession day is fixed for a receiving bank and the relevant transferring bank, then, for the purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997, nothing in this Act affects the continuity of any partnership in which a transferring bank was a partner immediately before the succession day.
(4) Where a succession day is fixed for a receiving bank and the relevant transferring bank, then, for the purposes of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997:
(a) all assessable income derived or taken to be derived by the transferring bank; and
(b) all allowable deductions and capital losses incurred or taken to be incurred by the transferring bank; and
(c) all other consequences (including the balances of tax losses that are carried forward) for the transferring bank;
are taken to have been derived or incurred by, or to have occurred in relation to, the receiving bank and not the transferring bank.
(5) Where a succession day is fixed for a receiving bank and the relevant transferring bank, then, for the purposes of Part 3‑6 of the Income Tax Assessment Act 1997 (about the imputation system):
(a) if the transferring bank has a franking surplus at the end of the day before the succession day, then, at the beginning of the succession day:
(i) a franking debit equal to that franking surplus arises in the transferring bank; and
(ii) a franking credit equal to that franking surplus arises in the receiving bank; and
(b) if the transferring bank has a franking deficit at the end of the day before the succession day and the succession day is not the first day of the transferring bank’s income year, then, at the beginning of the succession day:
(i) a franking credit equal to that franking deficit arises in the transferring bank; and
(ii) a franking debit equal to that franking deficit arises in the receiving bank.
(6) Subsections (3), (4) and (5) do not limit the generality of subsection (2).
(7) If, in any respect, the operation of subsection (2) requires further clarification, regulations may be made modifying or adapting the application of particular provisions of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 for that purpose.
(8) For the purposes of subsection (2), where the dissolution of a transferring bank under complementary legislation involves any cancellation or other disposal of the shareholding in that bank, that cancellation or other disposal of a transferring bank is to be regarded as an effect of the complementary legislation.
(9) This section applies to BNZ and BNZ Savings only in so far as the business of BNZ Savings relating to its Australian operations vests in BNZ.
(10) In this section, complementary legislation includes parallel New Zealand legislation.
Part 5—Miscellaneous
23 Certificates evidencing operation of Act etc.
(1) An authorised person may, by certificate signed by that person, certify any matter in relation to the operation or effect of this Act, and, in particular may certify that:
(a) specified matter or thing relevant to a receiving bank is an aspect of the operation or effect of this Act; or
(b) a specified thing was done for a purpose connected with, or arising out of, the operation or effect of this Act in relation to that receiving bank; or
(c) a specified asset of a relevant transferring bank has become a transferred asset of that receiving bank; or
(d) a specified liability of a relevant transferring bank has become a transferred liability of the receiving bank.
(2) For all purposes and in all proceedings, a certificate under subsection (1) is conclusive evidence of the matters certified, except to the extent that the contrary is established.
24 Certificates in relation to land and interests in land
Where:
(a) a receiving bank becomes, under this Act, the owner of land, or of an interest in land, that is situated in a State or Territory; and
(b) there is lodged with the Registrar of Titles or other appropriate officer of the State or Territory in which the land is situated a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the land or interest; and
(iii) states that the receiving bank has, under this Act, become the owner of that land or interest;
the officer with whom the certificate is lodged may:
(c) register the matter in the same manner as dealings in land or interests in land of that kind are registered; and
(d) deal with, and give effect to, the certificate.
25 Certificates in relation to other assets
(1) Where:
(a) an asset (other than an interest in land) becomes, under this Act, an asset of a receiving bank; and
(b) there is lodged with the person or authority who has, under a law of the Commonwealth, a State or a Territory, responsibility for keeping a register in respect of assets of that kind a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the asset; and
(iii) states that the asset has, under this Act, become an asset of the receiving bank;
that person or authority may:
(c) register the matter in the same manner as transactions in relation to assets of that kind are registered; and
(d) deal with, and give effect to, the certificate.
(2) This section does not affect the operations of the Corporations Act 2001.
26 Documents purporting to be certificates
A document purporting to be a certificate given under this Part is, unless the contrary is established, taken to be such a certificate and to have been properly given.
27 Compensation for acquisition of property
(1) Where, apart from this section, the operation or effect of this Act in relation to a particular receiving bank would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the receiving bank such reasonable amount of compensation as is agreed on between the person and the receiving bank or, failing agreement, as is determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.
(3) In this section:
acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.
28 Act to have effect despite other laws
(1) This Act has effect in spite of anything in any contract, deed, undertaking, agreement or other instrument.
(2) Nothing done by or under this Act:
(a) places a receiving bank, the relevant transferring bank or another person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong; or
(b) places a receiving bank, the relevant transferring bank or another person in breach of:
(i) any law of the Commonwealth or of a State or Territory; or
(ii) any contractual provision prohibiting, restricting or regulating the assignment or transfer of any asset or liability or the disclosure of any information; or
(c) releases any surety, wholly or partly, from all or any of the surety’s obligations.
(3) Without limiting subsection (1), where, apart from this section, the advice or consent of a person would be necessary in a particular respect, the advice is taken to have been obtained or the consent is taken to have been given, as the case requires.
29 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.