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Banking Act 1959
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C2018C00478 C53
30 November 2018
-
05 April 2019
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Part I—Preliminary
1 Short title
2 Commencement
2A Main objects of this Act
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
9AA Conditions on an authority
9AB Breach of authority conditions
9A Revocation of authority etc.
9B Bodies that cease to exist or change their names
9C Publication of list of ADIs
9D Authority to carry on banking business for a limited time
9E Authority to carry on banking business in Australia for a limited time—extension
9F Authority to carry on banking business in Australia for a limited time—continuation after expiry
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
11AAA Conditions on an authority
11AAB Breach of authority conditions
11AB Revocation of authority etc.
11AC Bodies that cease to exist or change their names
11AD Publication of list of NOHCs
11AE APRA may give notice to ensure that ADI has an authorised NOHC
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Division 1A—Prudential supervision and monitoring of ADIs and authorised NOHCs
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Subdivision A—Prudential supervision and monitoring of ADIs and authorised NOHCs generally
11AF APRA may make prudential standards for ADIs and authorised NOHCs
11AG Obligation to comply with the prudential standards
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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Subdivision B—Conversion and write-off provisions
11CAA Definitions
11CAB Conversion and write-off provisions
11CAC Conversion or write-off etc. not grounds for denial of obligations
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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
11CG Non-compliance with a direction
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Subdivision D—Secrecy and disclosure provisions relating to all directions
11CH APRA may determine that a direction is covered by secrecy provision
11CI Secrecy relating to directions
11CJ Disclosure of publicly available information
11CK Disclosure allowed by APRA
11CL Disclosure to legal representative for purpose of seeking legal advice
11CM Disclosure allowed by APRA Act secrecy provision
11CN Disclosure in circumstances set out in the regulations
11CO Disclosure for purpose
11CP Exceptions operate independently
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Division 1B—Provisions relating to certain ADIs
11E Limited application of Division 2 etc. to foreign ADIs
11EA APRA’s power to apply for foreign ADI to be wound up
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 etc. to meet certain requirements
13B Investigators—ADI must provide information and facilities
13BA Start of control of body corporate’s business by Banking Act statutory manager
13C Banking Act 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 a body corporate’s business by a Banking Act statutory manager
14A Banking Act statutory manager’s powers and functions
14AAA Safeguards on exercise of Banking Act statutory manager’s powers and functions
14AA Banking Act statutory manager’s additional powers to facilitate recapitalisation
14AB Considering report before acting under section 14AA
14AC Act under section 14AA not ground for denial of obligations
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 Banking Act statutory manager’s liabilities and duties
14CA Transaction by Banking Act statutory manager not voidable under section 588FE of the Corporations Act 2001
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
15 Effect on directors of Banking Act statutory manager taking control of a body corporate’s business
15A Effect on external administrator of Banking Act statutory manager taking control of a body corporate’s business
15B Moratorium—effect of Banking Act statutory management on court and tribunal proceedings
15BA Moratorium—effect of Banking Act statutory management on enforcement process regarding property
15BB Moratorium—effect of Banking Act statutory management on disposal of property
15BC Moratorium—restrictions on exercise of third party property rights
15BD Moratorium—effect of Banking Act statutory management on supply of essential services
15BE Moratorium—effect of Banking Act statutory management on annual general meeting
15C Certain circumstances not grounds for denial of obligations
15D 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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Subdivision C—APRA’s powers to apply for ADI to be wound up
16AAA APRA’s powers to apply for ADI to be wound up
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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
16AIA APRA may make transferred liabilities determination where transfer of business
16AIB Payment amounts under transferred liabilities determination
16AIC Consequences of transferred liabilities determination once certificate of transfer issued
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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 Banking Act 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 IIAA—The Banking Executive Accountability Regime
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Division 1—Obligations under the Banking Executive Accountability Regime
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Subdivision A—ADIs
37 Obligations of ADIs
37A Minister may exempt ADIs
37AA Inconsistency with corresponding foreign laws
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Subdivision B—Accountable persons
37B Obligations of accountable persons
37BA Meaning of accountable person
37BB Exception for responsibilities excluded by APRA
37BC Inconsistency with corresponding foreign laws
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Division 2—Accountability obligations
37C The accountability obligations of an ADI
37CA The accountability obligations of an accountable person
37CB Taking reasonable steps
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Division 3—Key personnel obligations
37D The key personnel obligations of an ADI
37DA People prohibited from being an accountable person
37DB APRA may direct an ADI to reallocate responsibilities
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Division 4—Deferred remuneration obligations
37E The deferred remuneration obligations of an ADI
37EA Meaning of variable remuneration
37EB Minimum amount of variable remuneration to be deferred
37EC Minimum period of deferral
37ED Exemption for small amounts of variable remuneration
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Division 5—Notification obligations
37F The notification obligations of an ADI
37FA Accountability statements
37FB Accountability map
37FC Events for which APRA must be notified
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Division 6—Enforcement and administration
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Subdivision A—Civil penalties
37G Pecuniary penalty for non-compliance with this Part
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Subdivision B—Registration of accountable persons
37H Register of accountable persons
37HA Registration of a person as an accountable person
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Subdivision C—Disqualification of accountable persons
37J APRA may disqualify an accountable person
37JA APRA may vary or revoke a disqualification
37JB Self-incrimination
37JC Allowing a person disqualified by APRA to act as an accountable person
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Division 7—Miscellaneous
37K General administration of this Part
37KA Indemnifying ADIs and accountable persons
37KB Causes of action not created
37KC Review of operation of Part
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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 IIB—Provisions relating to the non-ADI lenders
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Division 1—Main concepts
38B Meaning of non-ADI lender and Part IIB provision of finance
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Division 2—Non-ADI lender rules
38C APRA may make non-ADI lender rules for non-ADI lenders
38D Non-ADI lender rules revoked after 2 years
38E Variation and revocation of non-ADI lender rules
38F Notification and consultation regarding non-ADI lender rules
38G Which non-ADI lender rules, etc., are legislative instruments
38H Review of decisions relating to non-ADI lender rules
38J Division not to limit operation of other provisions
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Division 3—APRA’s power to issue directions
38K APRA may give directions in certain circumstances
38L Non-compliance with a direction under section 38K
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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—Financial records
60 Keeping of financial records
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Part VIII—Powers of APRA
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Division 1—Investigations
61 APRA may conduct investigations
61A Investigator may require production of books etc.
61B Concealing books, accounts or documents relevant to investigation
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Division 2—Examinations
61C Notice requiring appearance for examination
61D Conduct of examinations
61E Who may be present at examinations
61F Record of examination
61G Offences
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Division 3—Evidentiary use of certain material
61H Statements made at an examination—proceedings against examinee
61J Statements made at an examination—other proceedings
61K Weight of evidence under section 61J
61L Objection to admission of statements made at examination
61M Copies of, or extracts from, certain books, accounts and documents
61N Report under section 61
61P Exceptions to admissibility of report
61Q Material otherwise admissible
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Division 4—Information
62 Supply of information
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Division 5—Miscellaneous
62AA Legal professional privilege
62AB Powers of Court relating to non-compliance with this Act
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Part IX—Miscellaneous
62A Notices to APRA
62B Involving APRA in proposed appointment of external administrators of ADIs and NOHCs
62C Involving APRA in applications by liquidator
62D Application by APRA for directions
62E APRA may request information from liquidator
63 Restructuring of ADIs
64 Conditions on consent to restructure an ADI
65 ADIs etc. may be directed to comply with Act
65A Injunctions
65B Civil penalties
66 Restriction on use of certain words and expressions
66AA Use of the word bank by ADIs
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
69BA Institution of offence proceedings no bar to winding up
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—general
70AA Protection from liability—directions and secrecy
70AB Protection from liability—provisions do not limit each other
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
