Commonwealth Numbered Acts

BANKING ACT 1974 No. 132 of 1974 - SECT 3

3. Part III of the Principal Act is repealed and the following Part
substituted:-



"PART III-FOREIGN EXCHANGE, FOREIGN INVESTMENT, ETC. Power to make
regulations.

"39. (1) Where the Governor-General considers it expedient to do so for
purposes related to-

   (a)  foreign exchange or the foreign exchange resources of Australia;

   (b)  the protection of the currency or the protection of the public credit
        or revenue of Australia; or

   (c)  foreign investment in Australia, Australian investment outside
        Australia, foreign ownership or control of property in Australia or of
        Australian property outside Australia or Australian ownership or
        control of property outside Australia or of foreign property in
        Australia, he may make regulations, not inconsistent with this Act, in
        accordance with this section.



"(2) The regulations authorized to be made by this section are regulations
(being regulations with respect to matters with respect to which the
Parliament has power to make laws) making provision for or in relation to-

   (a)  rates of exchange;

   (b)  the control or prohibition of the buying, borrowing, selling, lending
        or exchanging in Australia of, or other dealing in Australia with,
        foreign currency by or on behalf of any person, and of the buying,
        borrowing, selling, lending or exchanging outside Australia of, or
        other dealing outside Australia with, foreign currency by or on behalf
        of a person who is a resident;

   (c)  the control or prohibition of any transaction that has the effect of
        or involves a purchase, borrowing, sale, loan or exchange of, or that
        otherwise relates to, foreign currency, being a transaction that takes
        place in whole or in part in Australia or to which a person who is a
        resident is a party;

   (d)  the control or prohibition of the buying, borrowing, selling, lending
        or exchanging outside Australia of, or other dealing outside Australia
        with, Australian currency by or on behalf of any person, and of the
        buying, borrowing, selling, lending or exchanging in Australia, or
        other dealing in Australia with, Australian currency by or on behalf
        of a person who is not a resident;

   (e)  the control or prohibition of any transaction that has the effect of
        or involves a purchase, borrowing, sale, loan or exchange of, or that
        otherwise relates to, Australian currency, being a transaction that
        takes place in whole or in part outside Australia or to which a person
        who is not a resident is a party;

   (f)  the control or prohibition of the taking or sending out of Australia,
        and of the bringing or sending into Australia, of Australian currency
        or foreign currency;

   (g)  requiring any person who is a resident and who has power to sell, or
        to procure the sale of, any foreign currency, or any person (whether a
        resident or not) who has power to sell in Australia, or to procure the
        sale in Australia of, any foreign currency, to sell, or to procure the
        sale of, that currency as prescribed;

   (h)  requiring any person who is not a resident and who has power to sell,
        or to procure the sale of, any Australian currency, or any person
        (whether a resident or not) who has power to sell outside Australia,
        or to procure the sale outside Australia of, any Australian currency,
        to sell, or to procure the sale of, that currency as prescribed;

        (i)    the control or prohibition of the taking, sending or transfer
               of any securities to a place outside Australia (including the
               transfer of securities from a register in Australia to a
               register outside Australia), and of the bringing, sending or
               transfer of any securities to Australia from a place outside
               Australia (including the transfer of securities from a register
               outside Australia to a register in Australia);

   (j)  the control or prohibition of the buying, borrowing, selling, lending
        or exchanging of, or other dealing with, property that is in
        Australia, or of Australian securities that are outside Australia, by
        or on behalf of a person who is not a resident;

   (k)  the control or prohibition of any transaction that has the effect of
        or involves a purchase, borrowing, sale, loan or exchange of, or that
        otherwise relates to, property that is in Australia, or of Australian
        securities that are outside Australia, being a transaction to which a
        person who is not a resident is a party;

   (l)  the control or prohibition of the buying, borrowing, selling, lending
        or exchanging of, or other dealing with, property that is outside
        Australia, or of foreign securities that are in Australia, by or on
        behalf of a person who is a resident;

   (m)  the control or prohibition of any transaction that has the effect of
        or involves a purchase, borrowing, sale, loan or exchange of, or that
        otherwise relates to, property that is outside Australia, or of
        foreign securities that are in Australia, being a transaction to which
        a person who is a resident is a party;

   (n)  requiring any person who is a resident and by whom moneys are payable
        to a person who is not a resident to pay those moneys within such time
        as is fixed by or under the regulations;

   (o)  the control or prohibition of the importation or exportation of goods;

   (p)  the obtaining by the Reserve Bank (or by a person authorized by the
        Bank for the purpose) of information, and the examination by the Bank
        (or by a person authorized by the Bank for the purpose) of accounts,
        books, documents or other papers, for purposes related to the exercise
        of the Bank's powers or the performance of the Bank's functions under
        the regulations;

   (q)  prescribing penalties not exceeding a fine of $100,000, or
        imprisonment for a period not exceeding 5 years, for offences against
        regulations made under this section; and

   (r)  empowering a court to order the forfeiture, or the disposal in
        accordance with the directions of the Reserve Bank, of Australian
        currency, foreign currency, goods or other property in respect of
        which an offence against the regulations made under this section has
        been committed.



"(3) Without limiting the generality of the power of the Governor-General to
make regulations under this section, the regulations may-

   (a)  for any purpose of the regulations, prohibit the doing of any act or
        thing (including the importation or exportation of goods) specified in
        the regulations either absolutely or subject to conditions, being
        conditions which may prohibit the doing of the act or thing without
        the authority of the Reserve Bank or except in pursuance of a licence
        granted under the regulations;

   (b)  make provision for or in relation to terms and conditions subject to
        which such authorities or licences shall or may be granted, being
        terms and conditions which may require the deposit of money with the
        Reserve Bank; and

   (c)  make provision for or in relation to the granting of exemptions,
        either unconditionally or subject to conditions determined by the
        Reserve Bank, from the application of any provision of the
        regulations.



"(4) Regulations under this section may provide-

   (a)  that the regulations, or a particular provision of the regulations
        specified in the regulations, shall apply, without modification or
        with such modifications as are prescribed, to and in relation to a
        resident included in a prescribed class of persons as if the person
        were not a resident; and

   (b)  that the regulations, or a particular provision of the regulations
        specified in the regulations, shall apply, without modification or
        with such modifications as are prescribed, to and in relation to a
        person who is not a resident but is included in a prescribed class of
        persons, as if the person were a resident.



"(5) Regulations under this section may provide-

   (a)  that, where a body corporate that is not a resident has a place of
        business in Australia, the body corporate shall be deemed, for the
        purposes of the regulations or a particular provision of the
        regulations specified in the regulations, to be a resident in relation
        to the affairs of the body corporate conducted by the body corporate
        at or through that place of business, including any business carried
        on, transactions entered into and acts and things done by the body
        corporate at or through that place of business; and

   (b)  that, where a body corporate that is a resident has a place of
        business outside Australia, the body corporate shall be deemed, for
        the purposes of the regulations or a particular provision of the
        regulations specified in the regulations, not to be a resident in
        relation to the affairs of the body corporate conducted by the body
        corporate at or through that place of business, including any business
        carried on, transactions entered into and acts and things done by the
        body corporate at or through that place of business.



"(6) Regulations under this section may provide that no act or thing done, or
contract or other transaction entered into, is invalid or unen- forceable by
reason only that the provisions of the regulations have not, or a particular
provision of the regulations specified in the regulations has not, been
complied with, but regulations so made shall not be construed as having the
effect of preventing a person from being convicted of an offence against the
regulations by reason of his having failed to comply with a provision of the
regulations.



"(7) Regulations under this section may provide that, in the exercise of its
powers or the performance of its functions under the regulations, or under a
particular provision of the regulations specified in the regulations, the
Reserve Bank is subject to the directions of the Treasurer.



"(8) In this section-

'Australian currency' includes notes, coins, postal notes, money orders, bills
of exchange, promissory notes, drafts, letters of credit and travellers'
cheques payable or expressed in Australian money, and also includes rights,
and instruments of title, to Australian money;

'Australian securities' means securities or other property included in a class
of securities or property specified in the regulations as Australian
securities;

'foreign currency' includes notes, coins, postal notes, money orders, bills of
exchange, promissory notes, drafts, letters of credit and travellers' cheques
payable or expressed otherwise than in Australian money, and also includes
rights, and instruments of title, to money other than Australian money;

'foreign securities' means securities or other property included in a class of
securities or property specified in the regulations as foreign securities;

'property' includes securities and rights under securities;

'resident' means-

   (a)  a person, not being a body corporate, who is ordinarily resident in
        Australia; and

   (b)  a body corporate which is incorporated in Australia;

'securities' include shares, stock, bonds, debentures, debenture stock,
treasury bills and notes, and units or sub-units of a unit trust, and also
includes deposit receipts in respect of the deposit of securities and
documents of title to securities.



"(9) Nothing in Part IV shall be taken as limiting the power of the
Governor-General to make regulations under this section for or in relation to
the control or prohibition of the importation or exportation of gold, or
otherwise with respect to gold.



"(10) A reference in this section to property that is in Australia shall be
read as including a reference to a right, not being property, that is
exercisable in Australia, and a reference in this section to property that is
outside Australia shall be read as including a reference to a right, not being
property, that is not exercisable in Australia.



"(11) Nothing in sub-section (1) shall be taken to affect, by implication or
otherwise, the interpretation or operation of regulations made under this
section. Extra-territorial application of regulations.

"39A. (1) Regulations made under section 39 shall, except where the contrary
intention appears, apply both within and without Australia.



"(2) A provision of the Judiciary Act 1903-1973 by which a court of a State is
invested with jurisdiction with respect to offences against the laws of
Australia has effect, in relation to offences against the regulations made
under section 39 of this Act not committed within any State, as if that
jurisdiction were so invested without limitation as to locality.



"(3) Subject to the Constitution, jurisdiction is conferred on the several
courts of a Territory, within the limits of their several jurisdictions other
than limits as to locality, with respect to offences against the regulations
made under section 39 not committed within a State or within another
Territory.



"(4) The trial on indictment of an offence against the regulations made under
section 39 not committed within a State may be held by a court of competent
jurisdiction at any place where the court may sit. Granting of authorities by
Reserve Bank subject to taxation clearance.

"39B. (1) Where regulations made under section 39 contain a provision
prohibiting the doing of an act or thing without the authority of the Reserve
Bank and an application is made to the Bank for the authority of the Bank to
do that act or thing, then-

   (a)  if the act or thing is of a kind specified in a notice in force under
        sub-section (2) of this section-the Bank shall not grant that
        authority unless there is produced to the Bank, in respect of that act
        or thing, a tax clearance certificate issued under section 14C of the
        Taxation Administration Act 1953-1974 in respect of that act or thing;
        or

   (b)  in any other case-the Bank may refuse to grant that authority unless
        there is produced to the Bank such a certificate, but the foregoing
        shall not be taken as limiting the discretion of the Bank to refuse to
        grant any such authority on any other ground.



"(2) The Treasurer may, by notice in writing published in the Gazette, direct
that acts or things of a kind specified in the notice are, on and after the
date of publication of the notice or such later date as is specified in the
notice, acts or things of a kind to which this section applies.".