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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
People of Australia's Commission of
Inquiry (Banking and Financial Services)
Bill 2017
No. , 2017
(Mr Katter)
A Bill for an Act to establish a People of Australia's
Commission of Inquiry into banking and financial
services in Australia, and for related purposes
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 2
4
Definitions ......................................................................................... 2
Part 2--Establishing the People of Australia's Commission of
Inquiry (Banking and Financial Services)
5
5
People of Australia's Commission of Inquiry (Banking and
Financial Services) is established ...................................................... 5
6
Terms of reference ............................................................................. 6
7
Report to the Parliament .................................................................... 7
8
Extending the period within which the Commission may
report ................................................................................................. 8
Part 3--Powers of the People of Australia's Commission of
Inquiry (Banking and Financial Services)
10
9
Hearings .......................................................................................... 10
10
Commission not bound by the rules of evidence ............................. 10
11
Application of the Royal Commissions Act 1902 ............................. 10
12
Application of Commonwealth laws ............................................... 11
Part 4--Protecting whistleblowers
12
13
Disclosures qualifying for whistleblower protection ....................... 12
14
Whistleblower protection for disclosures that qualify ..................... 12
15
Victimisation of whistleblowers prohibited ..................................... 13
16
Right to compensation ..................................................................... 15
Part 5--Other matters
16
17
Staff ................................................................................................. 16
18
Authority to disclose information to ASIC and APRA .................... 16
19
Legal and financial assistance ......................................................... 16
20
Regulations ...................................................................................... 17
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
1
A Bill for an Act to establish a People of Australia's
1
Commission of Inquiry into banking and financial
2
services in Australia, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the People of Australia's Commission of Inquiry
8
(Banking and Financial Services) Act 2017.
9
Part 1 Preliminary
Section 2
2
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
20
The day the Consolidated Revenue Fund is
appropriated under an Act to the Treasury to
fund the People of Australia's Commission
of Inquiry (Banking and Financial Services).
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Simplified outline of this Act
13
This Act establishes the People of Australia's Commission of
14
Inquiry (Banking and Financial Services).
15
The Commission has the same powers as a Royal Commission.
16
4 Definitions
17
In this Act:
18
Preliminary Part 1
Section 4
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
3
APRA means the Australian Prudential Regulation Authority.
1
ASIC means the Australian Securities and Investments
2
Commission.
3
banking or financial services provider means an entity that
4
provides banking or financial services including:
5
(a) an entity that carries on a banking business (within the
6
meaning of the Banking Act 1959) in Australia; and
7
(b) an entity that carries on a financial services business (within
8
the meaning of Chapter 7 of the Corporations Act 2001) in
9
Australia; and
10
(c) an entity that, in Australia, carries on the business of
11
undertaking liability, by way of insurance (including
12
reinsurance), in respect of any loss or damage, including
13
liability to pay damages or compensation, contingent upon
14
the happening of a specified event, including:
15
(i) a general insurer (within the meaning of the Insurance
16
Act 1973); and
17
(ii) an entity that carries on a life insurance business (within
18
the meaning of the Life Insurance Act 1995) in
19
Australia; and
20
(d) an entity that engages in a credit activity (within the meaning
21
of the National Consumer Credit Protection Act 2009).
22
Commission means the People of Australia's Commission of
23
Inquiry (Banking and Financial Services) established under section
24
5.
25
consumer means a person to whom a banking or financial services
26
provider provides a service in Australia.
27
Judge means a Judge of the High Court, of a court created by the
28
Parliament or of the Supreme Court of a State or Territory.
29
Treasury means the Department administered by the Treasurer.
30
unethical conduct includes:
31
Part 1 Preliminary
Section 4
4
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
(a) the generation of profits by a banking or financial services
1
provider in a manner, or to an extent, that:
2
(i) unreasonably disadvantages consumers, or has the
3
potential to unreasonably disadvantage consumers; or
4
(ii) is detrimental, or has the potential to be detrimental, to
5
the Australian economy; and
6
(b) the payment of remuneration packages to officers or
7
employees of a banking or financial services provider that:
8
(i) do not reflect the value of the work done by those
9
officers or employees for the provider; or
10
(ii) do not reflect the value of the contribution of those
11
officers or employees to the service provided by the
12
provider to consumers; or
13
(iii) are detrimental, or have the potential to be detrimental,
14
to the Australian economy; or
15
(iv) are detrimental, or have the potential to be detrimental,
16
to consumers; and
17
(c) the adoption of business practices that:
18
(i) unreasonably disadvantage consumers, or have the
19
potential to unreasonably disadvantage consumers; or
20
(ii) are detrimental, or have the potential to be detrimental,
21
to the Australian economy; and
22
(d) any other unethical conduct.
23
unlawful conduct includes:
24
(a) conduct that constitutes an offence under a law of the
25
Commonwealth, or of a State or Territory; and
26
(b) conduct that constitutes a contravention of a civil penalty
27
provision under a law of the Commonwealth, or of a State or
28
Territory; and
29
(c) conduct that would attract any other penalty under a law of
30
the Commonwealth, or a State or Territory, including a
31
breach of a standard or licence condition; and
32
(d) conduct that is not in accordance with duties under the
33
general law, including duties in equity.
34
Establishing the People of Australia's Commission of Inquiry (Banking and Financial
Services)
Part 2
Section 5
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
5
Part 2--Establishing the People of Australia's
1
Commission of Inquiry (Banking and
2
Financial Services)
3
4
5 People of Australia's Commission of Inquiry (Banking and
5
Financial Services) is established
6
(1) A commission is established by this subsection, to be known as the
7
People of Australia's Commission of Inquiry (Banking and
8
Financial Services).
9
(2) The Commission is constituted by 6 Commissioners, consisting of:
10
(a) 3 Judges, or former Judges; and
11
(b) 3 representatives of the Australian community.
12
(3) The Commissioners are to be appointed by a committee of
13
members of the House of Representatives.
14
(4) The committee of members of the House of Representatives is to
15
consist of:
16
(a) a person nominated by the Prime Minister; and
17
(b) a person nominated by the leader of the Opposition; and
18
(c) a person nominated by a member of the Australian Greens
19
who is:
20
(i) a member of the House of Representatives; or
21
(ii) if there is no member of the Australian Greens who is a
22
member of the House of Representatives--a senator;
23
and
24
(d) a person nominated by a member of the Nick Xenophon
25
Team who is:
26
(i) a member of the House of Representatives; or
27
Part 2 Establishing the People of Australia's Commission of Inquiry (Banking and
Financial Services)
Section 6
6
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
(ii) if there is no member of the Nick Xenophon Team who
1
is a member of the House of Representatives--a
2
senator; and
3
(e) a person nominated by a member of Katter's Australian Party
4
who is:
5
(i) a member of the House of Representatives; or
6
(ii) if there is no member of Katter's Australian Party who
7
is a member of the House of Representatives--a
8
senator.
9
(5) The committee must also appoint one of the 6 Commissioners to be
10
the Presiding Member of the Commission.
11
(6) A decision of the committee is made by the agreement of a
12
majority of members of the committee.
13
6 Terms of reference
14
The matters into which the Commission must inquire are:
15
(a) whether banking or financial services providers are engaged
16
in unethical or unlawful conduct and, if so, the nature of that
17
conduct; and
18
(b) whether the infrastructure is in place to ensure that banking
19
or financial services providers do not engage in unethical or
20
unlawful conduct, including:
21
(i) whether the laws governing the conduct of banking or
22
financial services providers are sufficient to ensure that
23
those providers do not engage in unethical or unlawful
24
conduct; and
25
(ii) whether the agencies regulating the conduct of banking
26
or financial services providers are effective in ensuring
27
that those providers do not engage in unethical or
28
unlawful conduct, and if not why not; and
29
(iii) whether there are alternatives, of practical use to
30
consumers, to help consumers fairly resolve disputes
31
with banking or financial services providers; and
32
Establishing the People of Australia's Commission of Inquiry (Banking and Financial
Services)
Part 2
Section 7
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
7
(c) the fairness and propriety of current contractual practice in
1
terms of the rights of consumers (including borrowers) and
2
the responsibilities of banking or financial services providers
3
(including lenders); and
4
(d) whether the conduct of banking or financial services
5
providers in their current practices and procedures are failing
6
to facilitate a fair and commercially conducive business
7
framework; and
8
(e) any matter that is reasonably incidental to a matter mentioned
9
in paragraph (a), (b), (c) or (d).
10
7 Report to the Parliament
11
(1) The Commission must submit to the Speaker of the House of
12
Representatives a report containing:
13
(a) the Commission's findings of fact; and
14
(b) the Commission's recommendations as a result of the
15
inquiry.
16
(2) The report must be submitted on or before the end of the period of
17
2 years starting on the commencement of this section, unless that
18
period is extended (see section 8).
19
(3) The Commission must submit with its report a record of so much
20
of the evidence before the Commission as the Commission thinks
21
necessary to substantiate its findings of fact and its conclusions.
22
(4) If the Commission is of the opinion that, if any of its findings or
23
conclusions or any of the evidence given before the Commission
24
were laid before the Houses of the Parliament:
25
(a) a person who has been or may be charged with an offence
26
might not receive a fair trial for the offence; or
27
(b) the conduct of an investigation of a breach or possible breach
28
of the law, might be prejudiced; or
29
(c) the existence or identity of a confidential source of
30
information in relation to the enforcement or administration
31
Part 2 Establishing the People of Australia's Commission of Inquiry (Banking and
Financial Services)
Section 8
8
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
of the law might be disclosed or a person enabled to ascertain
1
the existence or identity of that source; or
2
(d) there might be prejudice to the safety or reputation of a
3
person;
4
the Commission may submit those findings or conclusions, or that
5
evidence, to the Speaker of the House of Representatives in a
6
separate report, together with a statement of its opinion.
7
(5) As soon as practicable after receiving the report and record of
8
evidence, the Speaker of the House of Representatives must cause
9
copies of the report and record, other than a separate report
10
submitted under subsection (4), to be laid before each House of the
11
Parliament.
12
(6) The Minister must table the Government's response to the report
13
within 6 months after copies of the report are laid before the House
14
of Representatives.
15
8 Extending the period within which the Commission may report
16
(1) The Commission may request an extension of the period within
17
which the Commission must report under section 7 by notice in
18
writing to the Speaker of the House of Representatives.
19
(2) If the Commission requests an extension, the Speaker must
20
convene a committee made up of members of the House of
21
Representatives to consider the request.
22
(3) The committee of members of the House of Representatives is to
23
consist of:
24
(a) a person nominated by the Prime Minister; and
25
(b) a person nominated by the leader of the Opposition; and
26
(c) a person nominated by a member of the Australian Greens
27
who is:
28
(i) a member of the House of Representatives; or
29
Establishing the People of Australia's Commission of Inquiry (Banking and Financial
Services)
Part 2
Section 8
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
9
(ii) if there is no member of the Australian Greens who is a
1
member of the House of Representatives--a senator;
2
and
3
(d) a person nominated by a member of the Nick Xenophon
4
Team who is:
5
(i) a member of the House of Representatives; or
6
(ii) if there is no member of the Nick Xenophon Team who
7
is a member of the House of Representatives--a
8
senator; and
9
(e) a person nominated by a member of Katter's Australian Party
10
who is:
11
(i) a member of the House of Representatives; or
12
(ii) if there is no member of Katter's Australian Party who
13
is a member of the House of Representatives--a
14
senator.
15
(4) The committee may extend the period within which a report is to
16
be given.
17
(5) A decision of the committee is made by the agreement of a
18
majority of members of the committee.
19
Part 3 Powers of the People of Australia's Commission of Inquiry (Banking and
Financial Services)
Section 9
10
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
Part 3--Powers of the People of Australia's
1
Commission of Inquiry (Banking and
2
Financial Services)
3
4
9 Hearings
5
(1) The Commission may hold hearings.
6
(2) The hearings may be held at such places as the Commission
7
determines.
8
(3) Subject to this Act, the procedure at a hearing is to be such as the
9
Commission determines.
10
10 Commission not bound by the rules of evidence
11
The Commission is not bound by the rules of evidence and may
12
inform itself on any matter in such manner as it thinks fit.
13
11 Application of the Royal Commissions Act 1902
14
(1) Subject to this section, the Royal Commissions Act 1902, and
15
regulations made under that Act (the Royal Commissions
16
Regulations), apply in relation to the Commission, and to the
17
Commissioners conducting it, as if:
18
(a) the Commission were a Royal Commission; and
19
(b) each Commissioner were a member of a Royal Commission.
20
(2) The Governor-General may make regulations (under this
21
subsection), amending the Royal Commissions Regulations, as the
22
Royal Commissions Regulations apply in accordance with
23
subsection (1) of this section.
24
(3) Sections 10 and 15 of the Royal Commissions Act 1902, in their
25
application in accordance with subsection (1) of this section, have
26
Powers of the People of Australia's Commission of Inquiry (Banking and Financial
Services)
Part 3
Section 12
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
11
effect as if references in those sections to offences against that Act
1
included references to such offences as apply in accordance with
2
subsection (1) of this section.
3
(4) If a body corporate is convicted of an offence against the Royal
4
Commissions Act 1902, in that Act's application in accordance
5
with subsection (1) of this section, the court may impose a
6
pecuniary penalty not exceeding 10 times the amount of the
7
maximum pecuniary penalty that could be imposed by the court on
8
an individual convicted of the same offence.
9
12 Application of Commonwealth laws
10
The law of the Commonwealth (including the general law) applies
11
in the same way in relation to the Commission as it would apply in
12
relation to a Royal Commission.
13
Part 4 Protecting whistleblowers
Section 13
12
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
Part 4--Protecting whistleblowers
1
2
13 Disclosures qualifying for whistleblower protection
3
(1) This section applies to a disclosure of information made by any
4
person (the discloser) to the Commission, including, any of the
5
following:
6
(a) a consumer;
7
(b) an officer of a banking or financial services provider;
8
(c) an employee of a banking or financial services provider;
9
(d) a person who has a contract for the supply of services or
10
goods to a banking or financial services provider;
11
(e) an employee of a person who has a contract for the supply of
12
services or goods to a banking or financial services provider.
13
(2) The disclosure of the information by the discloser qualifies for
14
protection under this Part if:
15
(a) the discloser informs the Commission of the discloser's name
16
before making the disclosure; and
17
(b) the discloser considers that the information may assist the
18
Commission to perform the Commission's functions or
19
duties; and
20
(c) the discloser makes the disclosure in good faith.
21
14 Whistleblower protection for disclosures that qualify
22
(1) If a person makes a disclosure that qualifies for protection under
23
this Part:
24
(a) the person is not subject to any civil or criminal liability for
25
making the disclosure; and
26
(b) no contractual or other remedy may be enforced, and no
27
contractual or other right may be exercised, against the
28
person on the basis of the disclosure.
29
(2) Without limiting subsection (1):
30
Protecting whistleblowers
Part 4
Section 15
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
13
(a) the person has qualified privilege in respect of the disclosure;
1
and
2
(b) a contract to which the person is a party must not be
3
terminated on the basis that the disclosure constitutes a
4
breach of the contract.
5
(3) Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied
6
that:
7
(a) a person (the employee) is employed in a particular position
8
under a contract of employment with another person (the
9
employer); and
10
(b) the employee makes a disclosure that qualifies for protection
11
under this Part; and
12
(c) the employer purports to terminate the contract of
13
employment on the basis of the disclosure;
14
the court may order that the employee be reinstated in that position
15
or a position at a comparable level.
16
(4) If an individual makes a disclosure of information that qualifies for
17
protection under this Part, the information is not admissible in
18
evidence against the individual in criminal proceedings or in
19
proceedings for the imposition of a penalty, other than proceedings
20
in respect of the falsity of the information.
21
15 Victimisation of whistleblowers prohibited
22
Actually causing detriment to another person
23
(1) A person commits an offence if:
24
(a) the person engages in conduct; and
25
(b) the person's conduct causes any detriment to another person;
26
and
27
(c) the person intends that his or her conduct cause detriment to
28
the other person; and
29
(d) the person engages in his or her conduct because the other
30
person made a disclosure that qualifies for protection under
31
this Part.
32
Part 4 Protecting whistleblowers
Section 15
14
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
Penalty:
1
(a) for an individual--25 penalty units or imprisonment for 6
2
months, or both; or
3
(b) for a body corporate--250 penalty units.
4
Threatening to cause detriment to another person
5
(2) A person (the first person) commits an offence if:
6
(a) the first person makes a threat to another person (the second
7
person) to cause any detriment to the second person or to a
8
third person; and
9
(b) the first person:
10
(i) intends the second person to fear that the threat will be
11
carried out; or
12
(ii) is reckless as to causing the second person to fear that
13
the threat will be carried out; and
14
(c) the first person makes the threat because a person:
15
(i) made a disclosure that qualifies for protection under this
16
Part; or
17
(ii) may make a disclosure that would qualify for protection
18
under this Part.
19
Penalty:
20
(a) for an individual--25 penalty units or imprisonment for 6
21
months, or both; or
22
(b) for a body corporate--250 penalty units.
23
Threats
24
(3) For the purposes of subsection (2), a threat may be:
25
(a) express or implied; or
26
(b) conditional or unconditional.
27
(4) In a prosecution for an offence under subsection (2), it is not
28
necessary to prove that the person threatened actually feared that
29
the threat would be carried out.
30
Protecting whistleblowers
Part 4
Section 16
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
15
Definition
1
(5) In this section:
2
engage in conduct means:
3
(a) do an act; or
4
(b) omit to do an act.
5
16 Right to compensation
6
If:
7
(a) a person:
8
(i) commits an offence under subsection 15(1) or (2); or
9
(ii) commits an offence under Part 2.4 of the Criminal Code
10
in relation to subsection 15(1) or (2); and
11
(b) another person suffers damage because of the conduct
12
constituting the offence or because of the contravention;
13
the person is liable to compensate the other person for the damage.
14
Part 5 Other matters
Section 17
16
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
No. , 2017
Part 5--Other matters
1
2
17 Staff
3
(1) The Commission may employ such persons as it considers
4
necessary for the performance of its functions and the exercise of
5
its powers.
6
(2) An employee is to be employed on the terms and conditions that
7
the Commission determines in writing.
8
18 Authority to disclose information to ASIC and APRA
9
(1) The Commission may disclose information obtained by the
10
Commission in the course of its inquiry to ASIC if the information
11
relates, or may relate, to a failure to comply with a law of the
12
Commonwealth administered by ASIC.
13
(2) The Commission may disclose information obtained by the
14
Commission in the course of its inquiry to APRA if the
15
information relates, or may relate, to a failure to comply with a law
16
of the Commonwealth administered by APRA.
17
(3) This authority given under this section is in addition to the
18
authority given to the Commission to disclose information under
19
section 6P of the Royal Commissions Act 1902.
20
19 Legal and financial assistance
21
(1) A person who is appearing or is about to appear, or a person who is
22
entitled to appear, before the Commission may apply to the
23
Commission for assistance under this section.
24
(2) The Commission may, if it is satisfied that:
25
(a) it would involve substantial hardship to the person to refuse
26
the application; or
27
Other matters
Part 5
Section 20
No. , 2017
People of Australia's Commission of Inquiry (Banking and Financial
Services) Bill 2017
17
(b) the circumstances of the case are of such a nature that the
1
application should be granted;
2
authorise the provision to that person of such legal or financial
3
assistance in respect of that person's appearance as the
4
Commission determines.
5
(3) The authorisation given may be conditional or unconditional.
6
(4) The Minister must ensure that any legal or financial assistance
7
authorised by the Commission is provided.
8
(5) Any legal or financial assistance authorised by the Commission is
9
to be paid for out of moneys appropriated by the Parliament for the
10
purposes of the Commission.
11
20 Regulations
12
The Governor-General may make regulations, not inconsistent with
13
this Act, prescribing matters:
14
(a) required or permitted by this Act to be prescribed; or
15
(b) necessary or convenient to be prescribed for carrying out or
16
giving effect to this Act.
17