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FINANCIAL SECTOR LEGISLATION AMENDMENT ACT (NO. 1) 2000 NO. 160, 2000 - SCHEDULE 1

- Banking Act 1959

1 After paragraph 11CA(1)(a)

Insert:

(aa)
the body corporate is likely to contravene a prudential regulation or a prudential standard, and such a contravention is likely to give rise to a prudential risk; or

2 After paragraph 11CA(1)(c)

Insert:

; or (d) the body corporate is conducting its affairs in an improper or in a financially unsound way.

3 At the end of subsection 11CA(6)

Add ", and the affairs of a body corporate include those set out in section 53 of that Law.

4 At the end of subsection 13(1)

Add:

The requirement to supply information may include a requirement to supply books, accounts or documents.

5 Subsection 13(4)

Repeal the subsection, substitute:

APRA's power to investigate or appoint an investigator if information etc. not provided

(4)
APRA may investigate the affairs of an ADI, or appoint a person to do so, if the ADI fails to comply with a requirement to provide information, books, accounts or documents under this section.

6 Subsection 13A(1)

After "APRA may", insert "investigate the affairs of an ADI,".

Note: The heading to subsection 13A(1) is altered by omitting " or control " and substituting " , or investigation or control ".

7 Subsection 13B(1)

Omit "A person appointed by APRA to investigate", substitute "An investigator of".

8 Subsection 13B(1)

Omit "person", substitute "investigator".

9 Paragraph 13B(1A)(a)

Repeal the paragraph.

10 Subparagraph 13B(1A)(b)(i)

Omit "person", substitute "investigator".

11 At the end of subsection 62(1)

Add:

The requirement to supply information may include a requirement to supply books, accounts or documents.

12 At the end of paragraph 62(1A)(a)

Add ", books, accounts or documents".

13 Subsection 62(2)

After "information" (first occurring), insert ", books, accounts or documents".

14 Subsection 62(2)

Omit "information is", substitute "information, books, accounts or documents are".

15 Subsections 62(3) and (4)

After "information" (wherever occurring), insert ", books, accounts or documents".

16 Subsection 62(4)

Omit "is not admissible", substitute "is not, or are not, admissible".

16A Section 63

Insert:

(1AA)
If consent has been given under this section to an arrangement, agreement or reconstruction, the Treasurer must arrange for notice of the consent to be published in the Gazette as soon as practicable.

16B After subsection 63(3)

Insert:

"(3A) In making a decision whether to consent to an arrangement, agreement or reconstruction, the Treasurer must take the national interest into account.".

17 Subsection 63(5)

After "this section", insert "and section 64".

18 After section 63

Insert:

64 Conditions on consent to restructure an ADI

(1)
The Treasurer's consent under subsection 63(1) is subject to the conditions (if any) imposed by the Treasurer on the consent.

(2)
The Treasurer may, by written notice given to the person who has been given the consent:

(a)
impose conditions, or further conditions, on the consent; or

(b)
revoke or vary any condition imposed on the consent; or

(c)
revoke the consent if the Treasurer is satisfied that there has been a contravention of a condition to which the consent is subject.

(2A)
The Treasurer must arrange for a copy of a notice that has been given under subsection (2) to be published in the Gazette as soon as practicable.

(3)
The Treasurer's powers under subsection (2) may be exercised on the Treasurer's own initiative. The Treasurer's powers under paragraph (2)(a) or (b) may be exercised on application made to the Treasurer by the person who has been given the consent.

19 Application of new section 64

Section 64 of the Banking Act 1959 does not apply to a consent given before the commencement of that section.

20 After section 65

Insert:

65A Injunctions

Restraining injunctions

(1)
If a person has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:

(a)
a contravention of a provision of section 7, 8, 66, 66A or 67, or a condition imposed under section 64; or

(b)
attempting to contravene the provision or condition; or

(c)
aiding, abetting, counselling or procuring a person to contravene the provision or condition; or

(d)
inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the provision or condition; or

(e)
being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the provision or condition; or

(f)
conspiring with others to contravene the provision or condition;

the Federal Court of Australia may grant an injunction in accordance with subsection (2).

(2)
The injunction:

(a)
may restrain the person from engaging in the conduct; and

(b)
may also require that person to do a particular act or thing, if the Court thinks it desirable to do so.

The Court may grant the injunction on such terms as it thinks appropriate.

(3)
The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a)
whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b)
whether or not the person has previously engaged in conduct of that kind; and

(c)
whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

Performance injunctions

(4)
If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required:

(a)
by a provision of section 7, 8, 66, 66A or 67 to do; or

(b)
by a condition on a consent given under subsection 63(1);

the Court may grant an injunction requiring the person to do that act or thing. It may grant the injunction on such terms as the Court thinks appropriate.

(5)
The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a)
whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b)
whether or not the person has previously refused or failed to do that act or thing; and

(c)
whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.

Who may apply for an injunction

(6)
The Court may only grant an injunction on the application of:

(a)
APRA—in all cases; or

(b)
the Treasurer—in the case of a contravention of a condition imposed under section 64; or

(c)
ASIC or a member of the ADI—in the case of a contravention of a condition imposed under section 64 that has been imposed in relation to a demutualisation of an ADI.

In this subsection, demutualisation has the same meaning as in section 63.

Consent injunctions

(7)
If an application for an injunction under subsection (1) or (4) has been made, the Court may, if the Court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that the subsection applies.

Interim injunctions

(8)
The Court may grant an interim injunction pending determination of an application under subsection (1).

Variation or discharge of injunctions

(9)
The Court may discharge or vary an injunction granted under subsection (1), (4) or (7).

Damages undertakings

(10)
APRA, ASIC and the Treasurer cannot be required, as a condition of granting an interim injunction, to give an undertaking as to damages.

Damages orders

(11)
If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

(12)
The powers conferred on the Court by this section are in addition to any other of its powers, and do not derogate from its other powers.

21 After subsection 69(11A)

Insert:

(11B)
The Treasurer may, by instrument in writing, delegate any of his of her functions or powers under this section to:

(a)
a Commonwealth authority for which the Treasurer is the responsible Minister; or

(b)
a member, or staff member, of such an authority.

In this section, Commonwealth authority and responsible Minister have the respective meanings given by the Commonwealth Authorities and Companies Act 1997 .

(11C)
The reference to the Treasurer in paragraph (3AA)(a) is to be read as including a reference to the authority or person to whom the Treasurer has delegated his or her function under subsection (3).


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