Commonwealth Numbered Regulations - Explanatory Statements

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BANKS (SHAREHOLDINGS) REGULATIONS (AMENDMENT) 1994 NO. 308

STATUTORY RULES 1994 No. 308

Issued by the Authority of the Treasurer

Banks (Shareholdings) Act 1972

Banks (Shareholdings) Regulations (Amendment)

Section 10 of the Banks (Shareholdings) Act 1972 (the Act) generally limits the nominal amount of the voting shares of a bank in which a person (including a corporation) may have an interest to 10 percent, or 15 per cent with the approval of the Treasurer, of the total nominal amount of the voting shares of the bank. Under subsection 10(4) of the Act the Governor-General may, after application made to the Treasurer by a person, fix a higher percentage for that person by an instrument published in the Gazette. Subsection 10(5A) provides that the Governor-General may, on the publication under subsection 10(4) of an instrument fixing a percentage applicable to a corporation in respect of a bank, after application made to the Treasurer by the corporation, by instrument in writing published in the Gazette, declare that the percentage so fixed is also applicable to the persons who are from time to time relevant officers of the corporation in respect of the bank.

Section 17 of the Act provides that the Governor-General may make regulations for the purposes of the Act.

The Arab Bank Publicly Listed Company (Plc) is expanding into Australian corporate and retail banking through its foreign subsidiary, the Arab Bank Australia Limited (ABAL), (The Arab Bank Plc has operated in Australia through its wholly owned non-bank subsidiary, Arab Australia Limited since 1986.) Instruments have been gazetted in accordance with the Act, effectively fixing a percentage of 100 under subsection 10(4) of the Arab Bank Plc in relation to its interest in ABAL.

Under section 9 of the Act the associates (including officers, partners, subsidiaries and related companies) of the Arab Bank Plc would also be deemed to have the same interest in ABAL as the Arab Bank Plc. In the case of officers of the Arab Bank Plc, an instrument has been gazetted pursuant to subsection 10(5A) of the Act which would fix a percentage of 100 in relation to interests in the ABAL for those persons who are from time to time relevant officers of the Arab Bank Plc.

Under the Act, it is not possible to make a 'class' instrument for the interests of the associates of the Arab Bank Plc other than its relevant officers. These other associates represent a large and ever-changing group of persons and corporations. Rather than make an instrument pursuant to subsection 10(4) for every person within the meaning of section 9, it is convenient to prescribe these interests that is, to have them disregarded for the purposes of section 10 of the Act - by regulation, as provided for by section 17 and paragraph 8(9)(d).

Paragraph 8(9)(d) of the Act provides that a prescribed interest in a share, that is an interest of such a person or class of persons as is prescribed, shall be disregarded. The Banks (Shareholdings) Regulations (the Regulations) currently prescribe a class of persons in relation to their interests in the banks listed in the Schedule to the Regulation, where those interests are deemed to be held by virtue of an associate relationship. The effect of the amendments to the Regulations would be to disregard, for the purposes of the Act, interests in ABAL arising from associate relationships with the Arab Bank Plc.

The details of the Regulations are as follows:

The Schedule to the Banks (Shareholdings) Regulations is amended to include the following:

Arab Bank Australia Limited