Banking Act 1959

Part IX - Miscellaneous  

SECTION 63   Restructuring of ADIs  

(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.

(1)    

An ADI, other than a foreign ADI, commits an offence if:

(a) the ADI:

(i) enters into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or

(ii) effects a reconstruction of the ADI; and

(b) the Treasurer did not give prior consent in writing to the ADI entering into the arrangement or agreement or effecting the reconstruction.

Penalty: 200 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(1A)    
An offence against subsection (1) is an indictable offence.

(2)    
Any such arrangement, agreement or reconstruction, and any such sale or disposal in pursuance of any such arrangement or agreement, entered into without the prior consent of the Treasurer is void and of no effect.

(3)    
The consent of the Treasurer under subsection (1) shall not be unreasonably withheld.

(3A)    

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

(4)    

A foreign ADI commits an offence if:

(a) there is a proposal that involves the ADI:

(i) entering into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI; or

(ii) effecting a reconstruction of the ADI; and

(b) the ADI does not give the Treasurer reasonable notice, in writing, of the proposal.

Penalty: 200 penalty units.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.

(4A)    
An offence against subsection (4) is an indictable offence.

(5)    

The Treasurer may, in writing, delegate all or any of his or her powers under this section and section 64 to:

(a) APRA, an APRA member or an APRA staff member; or

(aa) ASIC, a member of ASIC or a staff member (as defined in subsection 5(1) of the Australian Securities and Investments Commission Act 2001 ) only in the case of a demutualisation of an ADI; or

(b) an officer of the Department.

(6)    

A reference in this section to a reconstruction of an ADI includes a reference to a demutualisation of an ADI.

(7)    

The regulations may define the meaning of demutualisation for the purposes of this section. If the regulations do so, demutualisation has, in this section, the meaning given by the regulations.

(8)    

The Treasurer may, by legislative instrument, determine guidelines as to acceptable standards of disclosure of information by an ADI (other than a foreign ADI) to its members in respect of a proposed demutualisation of the ADI.

(9)    

The Treasurer must consider whether an ADI has complied with the guidelines (if any) in deciding whether to give a consent, for the purposes of paragraph (1)(b), to the ADI effecting a demutualisation.

(10)    

In making a determination under subsection (8), the Treasurer must consult with APRA and ASIC.

(11)    
(Repealed by No 154 of 2007)

(12)    

Subsections (6) to (11) do not limit the generality of the rest of this section. In particular, those subsections do not limit the matters that the Treasurer may take into account in deciding whether to give a consent, for the purposes of paragraph (1)

(b) to an ADI effecting a demutualisation.