Banking Act 1959

Subdiv B heading substituted by No 10 of 2018, s 3 and Sch 1 item 104, effective 5 March 2018. For application provisions, see note under Subdiv D heading of Pt II Div 1BA. The heading formerly read:

Subdivision B - Provisions dealing with control of an ADI ' s business by an ADI statutory manager

S 15D(1) amended by No 68 of 2023, s 3 and Sch 1 items 23 and 24, by inserting " or the Financial Accountability Regime Act 2023 " in para (a) and substituting " those Acts " for " that Act " , in para (b), effective 15 September 2023. No 68 of 2023, s 3 and Sch 2 items 1 - 21 and 29 contains the following application, saving and transitional provisions:

Schedule 2 - Application, saving and transitional provisions

Part 1 - Preliminary

1 Definitions  
(1)
In this Schedule:

banking start time
means the time when Part 2 of Schedule 1 commences.

BEAR
means:

(a) Part IIAA of the old Banking Act; and

(b) any instruments made under that Part as in force immediately before the banking start time; and

(c) any sections of the old Banking Act that apply in relation to a provision of that Part.

FAR Act
means the Financial Accountability Regime Act 2023 .

FAR start time
for a body corporate that is an accountable entity under subsection 9(3) of the FAR Act means the time when the body corporate starts to be an accountable entity, as determined under subsection 9(4) of the FAR Act.

old Banking Act
means the Banking Act 1959 , and any instruments made under that Act, as in force immediately before the banking start time.

(2)
Expressions used in this Schedule that are defined for the purposes of the FAR Act, and used in relation to that Act, have the same meaning as in that Act.

(3)
Expressions used in this Schedule that were defined for the purposes of the old Banking Act, and are used in relation to that Act, have the same meaning as in that Act.
2 Section 7 of the Acts Interpretation Act 1901  
2
This Schedule does not limit the effect of section 7 of the Acts Interpretation Act 1901 as it applies in relation to the repeals made by this Act. 3 Compensation for acquisition of property  
(1)
If the operation of the old Banking Act, or of this Act or the FAR Act as it applies under this Act, would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2)
Subitem (1) applies whether the acquisition of property occurred before or occurs after the commencement of this Part.

(3)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

Part 2 - Banking sector

Division 1 - Key personnel obligations

4 Persons registered under BEAR  
When this item applies

(1)
This item applies in relation to a person and an ADI if, immediately before the banking start time:
(a) the person is an accountable person of the ADI, or of a subsidiary of the ADI, under the old Banking Act; and
(b) the person is registered under section 37HA of the old Banking Act.

Accountable persons taken to be registered under FAR

(2)
If, at the banking start time, the person is an accountable person of the ADI or the subsidiary under section 10 of the FAR Act, then the person is taken from the banking start time to be registered under the FAR Act as an accountable person in respect of the ADI or the subsidiary.

Note 1:

If the person was an accountable person of a subsidiary of the ADI, and the subsidiary is not a significant related entity of the ADI under the FAR Act, then the person may not be an accountable person of the ADI or the subsidiary under the FAR Act.

Note 2:

See also item 13 (old accountability statement taken to be new accountability statement).

Persons ceasing to be accountable persons

(3)
If, at the banking start time, the person is not an accountable person of the ADI or the subsidiary under section 10 of the FAR Act, then:
(a) the person is taken to have ceased to be an accountable person of the ADI or the subsidiary for the purposes of the paragraph 32(a) of the FAR Act; and
(b) for the purposes of subparagraph 31(1)(a)(i) of the FAR Act, that ceasing event is taken to have occurred at the banking start time.

Note:

Events mentioned in section 32 of the FAR Act must be notified to the Regulator in accordance with section 31 of the FAR Act (notification obligations of an accountable entity). Failure to comply with a notification obligation is a contravention of a civil penalty provision (see section 80 of the FAR Act).

5 Persons disqualified under BEAR  
When this item applies

(1)
This item applies in relation to a person if:
(a) before the banking start time, the person is disqualified from being, or acting as, an accountable person under section 37J of the old Banking Act; and
(b) the disqualification is in effect immediately before the banking start time.

Persons are taken to be disqualified under FAR

(2)
The person is taken, from the banking start time, to be disqualified from being or acting as an accountable person under section 42 of the FAR Act.

(3)
For the purposes of subsection 42(2) of the FAR Act, the disqualification applies in accordance with the following table.

Disqualified accountable persons
Item	Column 1 If, before the banking start time, the person is disqualified under the old Banking Act in relation to …	Column 2 then, from the banking start time, the person is taken to be disqualified under the FAR Act in relation to …
1	a particular ADI	the accountable entity that is that ADI.
2	a particular subsidiary of an ADI	if the subsidiary is a significant related entity of the accountable entity that is the ADI - that significant related entity.
3	a class of ADIs	a class of accountable entities that includes those ADIs.
4	a class of subsidiaries of ADIs	a class of significant related entities of accountable entities that includes those subsidiaries of ADIs.
5	any ADI	any accountable entity.
6	any subsidiary of an ADI	any significant related entity of an accountable entity.

(4)
The period of disqualification ends when the period of the disqualification under the old Banking Act would have ended.

(5)
Paragraphs 42(1)(a) and (b) and subsections 42(3) to (7) of the FAR Act do not apply in relation to the disqualification.

Applications to vary or revoke disqualification

(6)
If:
(a) before the banking start time, the person applies to APRA under section 37JA of the old Banking Act to vary or revoke the disqualification; and
(b) as at the banking start time, the application has not been withdrawn by the applicant, or dealt with by APRA;

the application is taken, after the banking start time, to have been made under section 43 of the FAR Act.

6 Pending applications to register a person under BEAR  
When this item applies

(1)
This item applies if:
(a) before the banking start time, an application is made to APRA under section 37HA of the old Banking Act to register a person as an accountable person; and
(b) as at the banking start time, the application has not been withdrawn by the applicant, or dealt with by APRA.

Application taken to be made under FAR

(2)
The application is taken to be an application made under section 41 of the FAR Act.

Note:

The Regulator may request further information under subsection 41(3) of the FAR Act.

(3)
For the purposes of paragraph 41(5)(a) of the FAR Act, the application is taken to have been made at the banking start time.
7 Persons filling a temporary or unforeseen vacancy when FAR starts  
7
To avoid doubt, the period of 90 days referred to in paragraph 24(2)(a) of the FAR Act begins no earlier than the banking start time, regardless of when the person started to fill the temporary or unforeseen vacancy. 8 Applications to register under FAR  
When this item applies

(1)
This item applies to a body corporate that is:
(a) an ADI; or
(b) an authorised NOHC of an ADI.

Early application for registration of accountable persons

(2)
From 30 days before the banking start time, the body corporate may apply to the Regulator under section 41 of the FAR Act to register a person as an accountable person in respect of the body or a significant related entity of the body.

(3)
If the body corporate makes the application before the banking start time, section 41 of the FAR Act (and any other provision of the FAR Act that applies in relation to that section) applies in relation to the body corporate as if the body corporate were an accountable entity.

Note:

Under paragraph 41(2)(d) of the FAR Act, if an accountable entity meets the enhanced notification threshold under subsection 31(3) of the FAR Act, the application must include an accountability statement for the person complying with section 33 of the FAR Act.

When registration comes into force

(4)
The registration of the person as an accountable person comes into force at the later of the following times:
(a) the banking start time;
(b) when the Regulator registers the person.
9 Disqualification under FAR for non-compliance with BEAR  
9
APRA may, after the banking start time, disqualify a person under section 42 of the FAR Act from being, or acting as, an accountable person if APRA is satisfied that:
(a) the person has failed to comply with one or more of their obligations under section 37CA of the old Banking Act; and
(b) the disqualification is justified, having regard to the seriousness of the failure to comply.

Note:

A decision to disqualify a person is a reviewable decision under Part 5 of Chapter 3 of the FAR Act.

Division 2 - Deferred remuneration obligations

10 Deferral of variable remuneration continues under BEAR after FAR starts  
When this item applies

(1)
This item applies in relation to a person if:
(a) immediately before the banking start time, the person is an accountable person of an ADI, or of a subsidiary of an ADI, under the old Banking Act; and
(b) at the banking start time, the person is an accountable person of the ADI or subsidiary under section 10 of the FAR Act.

Old Banking Act continues to apply until FAR applies

(2)
Despite the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1, the old Banking Act applies, after the banking start time, in relation to the variable remuneration of the accountable person unless Part 5 of Chapter 2 of the FAR Act applies to the variable remuneration (see item 11 of this Schedule).

Note:

APRA may exercise powers etc. under repealed provisions for the purposes of this item: see item 29.

11 Deferral of variable remuneration under FAR  
When this item applies

(1)
This item applies in relation to a person who is an accountable person under section 10 of the FAR Act of an entity (the deferring entity ) that is, at the banking start time:
(a) an accountable entity under subsection 9(1) of the FAR Act; or
(b) a significant related entity of such an accountable entity.

FAR applies to financial years starting at least 6 months after banking start time

(2)
Part 5 of Chapter 2 of the FAR Act applies in relation to the variable remuneration of the accountable person only if the minimum deferral period for the variable remuneration (see section 28 of the FAR Act) starts in:
(a) the first financial year of the deferring entity that begins after the end of the period of 6 months after the banking start time; or
(b) a later financial year.
12 Deferral of variable remuneration under BEAR - savings provision  
When this item applies

(1)
This item applies in relation to a person if:
(a) immediately before the banking start time:

(i) the person is an accountable person of an ADI, or of a subsidiary of an ADI, under the old Banking Act; and

(ii) Division 4 of Part IIAA of the old Banking Act applies in relation to the variable remuneration of the person; and

(b) at the banking start time, the person is not an accountable person of the ADI or the subsidiary under section 10 of the FAR Act.

Note:

If the person was an accountable person of a subsidiary of the ADI, and the subsidiary is not a significant related entity of the ADI under the FAR Act, then the person may not be an accountable person of the ADI or the subsidiary under the FAR Act.

Old Banking Act continues to apply

(2)
Despite the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1, the old Banking Act continues to apply, after the banking start time, in relation to the variable remuneration, as if that repeal had not happened.

Division 3 - Notification obligations

13 Accountability statements under BEAR  
When this item applies

(1)
This item applies if:
(a) before the banking start time, an ADI or a subsidiary of an ADI gave APRA a document (the old accountability statement ) complying with section 37FA of the old Banking Act for a person who was registered under section 37HA of that Act; and
(b) at the banking start time, the person is an accountable person of the ADI or of the subsidiary under section 10 of the FAR Act.

Note:

For transfer of registration of the person, see item 4.

(2)
The old accountability statement (including any changes notified to APRA before the banking start time) is taken, from the banking start time, to have been given to the Regulator in accordance with section 33 of the FAR Act for the person.

Note:

Any material change to the information contained in the accountability statement must be notified to the Regulator: see subsection 31(2) of the FAR Act.

14 Notification obligations under BEAR - savings provision  
(1)
Despite the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1, the old Banking Act continues to apply, after the banking start time, in relation to an obligation covered by subitem (2) and arising before that time, as if that repeal had not happened.

(2)
For the purposes of subitem (1), the obligations are any of the following:
(a) an obligation under paragraph 37F(1)(a) of the old Banking Act to notify APRA of a change to an accountability statement;
(b) an obligation under paragraph 37F(1)(b) of the old Banking Act to notify APRA of a change to an accountability map;
(c) an obligation under paragraph 37F(1)(c) of the old Banking Act to notify APRA of an event.

Division 4 - Regulatory powers and enforcement

15 Directions about reallocating responsibilities given under BEAR  
When this item applies

(1)
This item applies if:
(a) before the banking start time, APRA gives a body corporate a direction under section 37DB of the old Banking Act in relation to a responsibility; and
(b) as at the banking start time, APRA has not revoked the direction.

Direction under FAR Act taken to be given

(2)
After the banking start time, the direction continues in force (and may be dealt with) as if it had been given by the Regulator under section 65 of the FAR Act.

(3)
For the purposes of section 65 of the FAR Act:
(a) the requirements in paragraphs 65(3)(a) and (c) are taken to be met; and
(b) if the direction under section 37DB of the old Banking Act did not specify a period within which the direction is to be complied with - paragraph 65(3)(b) does not apply to the direction.

Secrecy obligations

(4)
If, immediately before the banking start time, the direction was covered by a determination under subsection 11CH(2) of the old Banking Act, then it is taken after the banking start time to be covered by a determination under subsection 67(2) of the FAR Act.

(5)
If, immediately before the banking start time, the direction was covered by a determination under subsection 11CK(2) or (5) of the old Banking Act, then it is taken after the banking start time to be covered by:
(a) for a direction covered by a determination under subsection 11CK(2) of the old Banking Act - a determination under subsection 70(2) of the FAR Act;
(b) for a direction covered by a determination under subsection 11CK(5) of the old Banking Act - a determination under subsection 70(4) of the FAR Act.
16 Directions under FAR for non-compliance with BEAR  
When this item applies

(1)
This item applies if:
(a) APRA has reason to believe that a body corporate has contravened a provision of Part IIAA of the old Banking Act before the banking start time; and
(b) as at the banking start time, APRA has not given a direction under section 11CA of the old Banking Act in relation to the contravention; and
(c) immediately after the banking start time, the body corporate is an accountable entity.

APRA may give direction under FAR Act

(2)
Both of the following apply:
(a) APRA may give the body corporate a direction under section 64 of the FAR Act;
(b) for the purposes of paragraph 64(3)(b) of the FAR Act, the ground for giving the direction is the contravention of the old Banking Act provision.
17 Revocation of authority for non-compliance with FAR  
17
The amendment of section 9A of the Banking Act 1959 made by Part 1 of Schedule 1 applies in relation to a body corporate ' s authority under section 9 of that Act whether the authority was granted before or after the banking start time. 18 Contraventions under BEAR - savings provision  
(1)
Despite the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1, the old Banking Act continues to apply, after the banking start time, in relation to a contravention (or an alleged contravention) of a provision of the BEAR that occurs before that time, as if that repeal had not been made.

(2)
This item does not limit any other item of this Schedule.

Note:

As a result, APRA may have a choice as to whether to deal with BEAR non-compliance under the old Banking Act or whether to take action under the FAR Act in reliance on item 9 or 16 of this Schedule.

19 Directions under BEAR for non-compliance with BEAR - savings provision  
When this item applies

(1)
This item applies if:
(a) before the banking start time, APRA gives a body corporate a direction under section 11CA of the old Banking Act in relation to a contravention of the BEAR; and
(b) as at the banking start time, APRA has not revoked the direction.

Old Banking Act continues to apply

(2)
Despite the repeals and amendments of the Banking Act 1959 made by Part 2 of Schedule 1, the old Banking Act continues to apply, after the banking start time, in relation to the direction, as if those repeals and amendments had not been made.
20 Review of decisions under BEAR - savings provision  
20
Despite the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1, Part VI (review of decisions) of the old Banking Act continues to apply, after the banking start time, in relation to a decision made under Part IIAA of the Banking Act 1959 :
(a) before the banking start time; or
(b) after the banking start time as a result of the operation of a provision of this Schedule;

as if that repeal had not been made.

21 Enforceable undertakings and injunctions under BEAR - savings provision  
21
To avoid doubt, the repeal of Part IIAA of the Banking Act 1959 by Part 2 of Schedule 1 does not affect:
(a) an enforceable undertaking given under section 18A of the old Banking Act before the banking start time; or
(b) an injunction granted under section 65A of the old Banking Act before the banking start time.
…

Part 4 - APRA and ASIC

Division 1 - Transition from the BEAR

29 Doing things under repealed provisions  
(1)
The amendments of the Australian Prudential Regulation Authority Act 1998 and the Banking Act 1959 made by Part 2 of Schedule 1 do not apply for the purpose of APRA exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended):
(a) in relation to variable remuneration to which the old Banking Act applies under item 10 of this Schedule; or
(b) in relation to any other matter in relation to which an item of this Schedule requires or permits APRA to do something under the old Banking Act.

Secrecy

(2)
In addition to subitem (1), despite the amendments of section 56 of the Australian Prudential Regulation Authority Act 1998 made by Part 2 of Schedule 1, that Act as in force immediately before the banking start time, continues to apply in relation to:
(a) information disclosed or obtained before or after the commencement of that Part and relating to the affairs of a person in relation to whom information is, or was, required to be given under Part IIAA of the Banking Act 1959 (including that Part as it continues to apply under an item of this Schedule); and
(b) a document given or produced before or after the commencement of that Part and containing information relating to the affairs of a person in relation to whom information is, or was, required to be given under Part IIAA of the Banking Act 1959 (including that Part as it continues to apply under an item of this Schedule).

…

S 15D substituted by No 10 of 2018, s 3 and Sch 1 item 192, effective 5 March 2018. For application provisions, see note under Subdiv D heading of Pt II Div 1BA. S 15D formerly read:

SECTION 15D Continued application of other provisions  
15D
Neither the appointment of an administrator of an ADI ' s business under this Division nor the fact that an ADI statutory manager is in control of an ADI ' s business under this Division affects:

(a) the continued operation of other provisions of this Act or the operation of the Financial Sector (Collection of Data) Act 2001 in relation to the ADI; or

(b) the obligation of the ADI to comply with those other provisions and that Act.

S 15C and 15D substituted for s 15C by No 105 of 2008, s 3 and Sch 2 item 18, effective 18 October 2008.