Part II
-
Provisions relating to the carrying on of banking business
Division 2
-
Protection of depositors
Subdivision B
-
Provisions dealing with control of a body corporate
'
s business by a Banking Act statutory manager
History
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
SECTION 14A
Banking Act statutory manager
'
s powers and functions
Banking Act statutory manager
'
s powers and functions include powers and functions of board
(1)
A Banking Act statutory manager of a body corporate has the powers and functions of the members of the board of directors of the body corporate (collectively and individually), including the board
'
s powers of delegation.
Note:
When a Banking Act statutory manager takes control of the business of a body corporate, the directors of the body corporate cease to hold office (see section
15
).
History
S 14A(1) amended by No 10 of 2018, s 3 and Sch 1 items 107
-
110, by substituting
"
A Banking Act statutory manager of a body corporate has the powers and functions of the members of the board of directors of the body corporate
"
for
"
An ADI statutory manager has the powers and functions of the members of the board of directors of the ADI
"
, and
"
a Banking Act statutory manager
"
for
"
an ADI statutory manager
"
,
"
a body corporate,
"
for
"
an ADI,
"
and
"
the body corporate
"
for
"
the ADI
"
in the note, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
Banking Act statutory manager
'
s power to obtain information
(2)
A Banking Act statutory manager of a body corporate may, for the purposes of this Division, require a person who has, at any time, been an officer of the body corporate to give the statutory manager any information relating to the business of the body corporate that the statutory manager requires. A requirement to give information may include a requirement to produce books, accounts or documents.
History
S 14A(2) amended by No 10 of 2018, s 3 and Sch 1 item 112, by substituting
"
A Banking Act statutory manager of a body corporate may, for the purposes of this Division, require a person who has, at any time, been an officer of the body corporate to give the statutory manager any information relating to the business of the body corporate that the statutory manager requires.
"
for
"
An ADI statutory manager may, for the purposes of this Division, require a person who has, at any time, been an officer of the ADI to give the ADI statutory manager any information relating to the business of the ADI that the ADI statutory manager requires.
"
, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
S 14A(2) amended by No 116 of 2003, s 3 and Sch 2 item 12B, by inserting
"
A requirement to give information may include a requirement to produce books, accounts or documents.
"
at the end, effective 28 November 2003.
(2A)
A person who is or has been an officer of a body corporate commits an offence if:
(a)
there is a Banking Act statutory manager of the body corporate; and
(b)
under subsection (2), the Banking Act statutory manager requires the person to give information or to produce books, accounts or documents; and
(c)
the person fails to comply with the requirement.
(d)
(Repealed by No 154 of 2007)
Penalty: Imprisonment for 12 months.
Note 1:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
Note 2:
Subsection 4B(2) of the
Crimes Act 1914
allows a court to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine a court may impose is worked out as provided in that subsection.
Note 3:
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 maximum fine worked out as mentioned in Note 2.
History
S 14A(2A) amended by No 10 of 2018, s 3 and Sch 1 items 113
-
115, by substituting
"
officer of a body corporate
"
for
"
officer of an ADI
"
,
"
a Banking Act statutory manager of the body corporate
"
for
"
an ADI statutory manager in relation to the ADI
"
in para (a) and
"
Banking Act statutory manager
"
for
"
ADI statutory manager
"
in para (b), effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
S 14A(2A) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 13, by substituting
"
Penalty
"
for
"
Maximum penalty
"
in the penalty, effective 27 July 2010.
S 14A(2A) amended by No 154 of 2007, s 3 and Sch 1 items 31 and 32, by substituting
"
requirement.
"
for
"
requirement; and
"
in para (c) and repealing para (d), effective 24 September 2007. Para (d) formerly read:
(d)
there is no order in force under section 11 determining that this subsection does not apply to the person.
S 14A(2A)(b) amended by No 116 of 2003, s 3 and Sch 2 item 12C, by substituting
"
information or to produce books, accounts or documents
"
for
"
ADI statutory manager information
"
, effective 28 November 2003.
(3)
An individual is not excused from complying with a requirement under subsection (2) to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(4)
If:
(a)
before giving information in compliance with a requirement under subsection (2), an individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b)
giving the information might in fact tend to incriminate the individual or make the individual so liable;
the information given in compliance with the requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information.
(4A)
Subsections (3) and (4) apply to the production of books, accounts or documents in a corresponding way to the way in which they apply to the giving of information.
History
S 14A(4A) inserted by No 116 of 2003, s 3 and Sch 2 item 12D, effective 28 November 2003.
Banking Act statutory manager
'
s power to sell whole or part of body corporate
'
s business
(5)
A Banking Act statutory manager may sell or otherwise dispose of the whole or any part of the body corporate
'
s business. The sale or disposal may occur on any terms and conditions that the Banking Act statutory manager considers appropriate.
History
S 14A(5) amended by No 10 of 2018, s 3 and Sch 1 items 117
-
119, by substituting
"
A Banking Act statutory manager
"
for
"
An ADI statutory manager
"
,
"
the body corporate
'
s business
"
for
"
the ADI
'
s business
"
and
"
the Banking Act statutory manager
"
for
"
the ADI statutory manager
"
, effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
Banking Act statutory manager to alter body corporate
'
s constitution etc.
(5A)
A Banking Act statutory manager may, if the body corporate concerned is registered under the
Corporations Act 2001
, alter the body corporate
'
s constitution, rules or other arrangements for governance if the alteration:
(a)
is necessary or convenient for enabling or facilitating the performance of the Banking Act statutory manager
'
s functions and duties, or the exercise of the Banking Act statutory manager
'
s other powers, under this Division in relation to the body corporate; and
(b)
promotes:
(i)
the protection of depositors of the relevant ADI mentioned in subsection
13A(1B)
; and
(ii)
financial system stability in Australia.
History
S 14A(5A) amended by No 10 of 2018, s 3 and Sch 1 items 121
-
124, by substituting
"
A Banking Act statutory manager may, if the body corporate concerned
"
for
"
An ADI statutory manager may, if the ADI concerned
"
,
"
the body corporate
'
s constitution
"
for
"
the ADI
'
s constitution
"
,
"
the Banking Act statutory manager
'
s functions and duties, or the exercise of the Banking Act statutory manager
'
s other powers, under this Division in relation to the body corporate
"
for
"
the ADI statutory manager
'
s functions and duties, or the exercise of the ADI statutory manager
'
s other powers, under this Division in relation to the ADI
"
in para (a) and
"
the relevant ADI mentioned in subsection 13A(1B)
"
for
"
the ADI
"
in para (b)(i), effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
S 14A(5A) inserted by No 105 of 2008, s 3 and Sch 2 item 11, applicable to an ADI statutory manager that takes control of an ADI
'
s business before, on or after 18 October 2008.
(5B)
A Banking Act statutory manager may do an act under subsection (5) or (5A) despite:
(a)
the
Corporations Act 2001
(without limiting the scope of section
70B
of this Act); and
(b)
the body corporate
'
s constitution; and
(c)
any contract or arrangement to which the body corporate is party; and
(d)
any listing rules of a financial market in whose official list the body corporate is included.
History
S 14A(5B) amended by No 10 of 2018, s 3 and Sch 1 items 125
-
130, by substituting
"
A Banking Act statutory manager
"
for
"
An ADI statutory manager
"
,
"
subsection (5) or (5A)
"
for
"
subsection (5A)
"
, inserting
"
(without limiting the scope of section 70B of this Act)
"
in para (a), substituting
"
the body corporate
'
s
"
for
"
the ADI
'
s
"
in para (b),
"
the body corporate
"
for
"
the ADI
"
in para (c) and (d) and
"
of a financial market
"
for
"
(as defined in section 761A of the
Corporations Act 2001
) of a financial market (as defined in that section)
"
in para (d), effective 5 March 2018. For application provisions, see note under Subdiv
D
heading of Pt II Div 1BA.
S 14A(5B) inserted by No 105 of 2008, s 3 and Sch 2 item 11, applicable to an ADI statutory manager that takes control of an ADI
'
s business before, on or after 18 October 2008.
(6)
Interpretation
In this section:
officer
, in relation to a body corporate, has the same meaning as in section
11CG
.
History
Definition of
"
officer
"
amended by No 17 of 2019, s 3 Sch 4 item 5, by substituting
"
a body corporate
"
for
"
an ADI
"
, effective 6 April 2019.
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