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Banking Act 1959

Part II - Provisions relating to the carrying on of banking business

Division 3 - Governance

SECTION 21 Court power of disqualification

(1)
On application by APRA, the Federal Court of Australia may, by order, disqualify a person from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied that:

(a) the person is not a fit and proper person to be or act as such a person; and

(b) the disqualification is justified.

(2)
For the purposes of subsection (1), the Court may disqualify a person from being or acting as one or more of the following:

(a) a director or senior manager of:

(i) a particular ADI; or

(ii) a class of ADIs; or

(iii) any ADI;

(other than a particular foreign ADI, a class of foreign ADIs or any foreign ADI);

(b) a senior manager of the Australian operations of:

(i) a particular foreign ADI; or

(ii) a class of foreign ADIs; or

(iii) any foreign ADI;

(c) a director or senior manager of:

(i) a particular authorised NOHC; or

(ii) a class of authorised NOHCs; or

(iii) any authorised NOHC;

(d) an auditor of:

(i) a particular ADI or a particular authorised NOHC; or

(ii) a class of ADIs or a class of authorised NOHCs; or

(iii) any ADI or any authorised NOHC.

(3)
In deciding whether it is satisfied as mentioned in paragraph (1)(a), the Court may take into account:

(a) any matters specified in the regulations for the purposes of this paragraph; and

(b) any criteria for fitness and propriety set out in the prudential standards; and

(c) any other matters the Court considers relevant.

(4)
In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:

(a) if the application is for the person to be disqualified from being or acting as a director or senior manager - the person's conduct in relation to the management, business or property of any corporation; and

(b) if the application is for the person to be disqualified from being or acting as an auditor - the person's conduct in relation to the functions or duties of the person as required under this Act and the prudential standards; and

(c) in any case - any other matters the Court considers relevant.

(5)
As soon as practicable after the Court disqualifies a person under this section, APRA must cause particulars of the disqualification:

(a) to be given:

(i) if the person is, or is acting as, a person referred to in subparagraph (2)(a)(i) - to the ADI concerned; or

(ii) if the person is, or is acting as, a person referred to in subparagraph (2)(b)(i) - to the foreign ADI concerned; or

(iii) if the person is, or is acting as, a person referred to in subparagraph (2)(c)(i) - to the authorised NOHC concerned; or

(iv) if the person is, or is acting as, a person referred to in subparagraph (2)(d)(i) - to the ADI or authorised NOHC concerned; and

(b) to be published in the Gazette .

View history note

History

S 21 substituted by No 25 of 2008, s 3 and Sch 1 item 7, effective 26 May 2008.

No 25 of 2008, s 3 and Sch 1 item 9, contains the following application and transitional provisions:

Application and transitional provisions
Disqualifications

(1)
For the purposes of the Banking Act 1959 , a disqualification by APRA that is in force under section 21 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.

(2)
For the purposes of the Banking Act 1959 , a reference in column 1 of the table in the provision of the Banking Act 1959 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.

New references to court orders to include references to disqualifications by APRA

Item Column 1
Reference Column 2
Provision of the Banking Act Column 3
Reference taken to be included

1 a person who was disqualified under section 21 section 19 and paragraph 22(1)(a) a person who was disqualified under section 21 under a disqualification that is continued in force under subitem (1)

2 a person disqualified under section 21 by the Federal Court of Australia paragraph 22(1)(f) a person disqualified under section 21 by APRA under a disqualification that is continued in force under subitem (1)

3 an order made under section 21 paragraph 22(1)(a) and subsection 22(2) a disqualification made under section 21 that is continued in force under subitem (1)

(3)
Section 21 of the Banking Act 1959 (as in force immediately after 26 May 2008) applies in relation to any conduct engaged in by a person, whether before or after 26 May 2008.

Waivers of disqualifications

(4)
If:

(a) a person applies to APRA for a determination under section 22 of the Banking Act 1959 that the person is not a disqualified person; and

(b) APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.

Note:

See subitem (7) for the treatment of a decision by APRA under section 22 of the Banking Act 1959 in respect of which review proceedings are on foot at commencement.

(5)
A determination under section 22 of the Banking Act 1959 that is in force immediately before 26 May 2008 continues in force after that time. However, APRA may not revoke the determination.

(6)
If:

(a) a determination in relation to a person continues in force under subitem (5); and

(b) after 26 May 2008, an order is made under section 21 of the Banking Act 1959 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection 21(2) of that Act;
the determination ceases to be in force.

Review proceedings on foot at commencement

(7)
The amendments to the Banking Act 1959 made by this Schedule do not affect:

(a) any request, in relation to a decision made under section 21 or 22 of that Act, for a review that is pending under section 51B of that Act immediately before 26 May 2008; or

(b) any proceeding, in relation to a decision under section 21 or 22 of that Act that has been confirmed or varied under subsection 51B(3) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or

(c) any appeal to a court in relation to a proceeding referred to in paragraph (b).

(8)
If a disqualification by APRA under section 21 , or a determination under section 22 , of the Banking Act 1959 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (7), the disqualification or determination is, for the purposes of subitem (1) or (5) (as the case requires), taken to have been in force immediately before 26 May 2008.

S 21 formerly read:

SECTION 21 APRA may disqualify person
(1)
APRA may disqualify a person if it satisfied that the person is not a fit and proper person to be or to act as someone referred to in paragraph 19(1)(a), (b) or (c) or (2)(a), (b) or (c).

(1A)
In deciding whether it is satisfied as mentioned in subsection (1), APRA may take into account:

(a) any matters specified in the regulations for the purposes of this paragraph; and

(b) any other matters APRA considers relevant.

(1B)
If regulations specifying matters for the purposes of paragraph (1A)(a) also specify the way in which, the extent to which or the circumstances in which:

(a) the matters; or

(b) any information or material relating to the matters;
may be taken into account by APRA, APRA must comply with the regulations.

(2)
A disqualification takes effect on the day on which it is made.

(3)
APRA may revoke a disqualification on application by the disqualified person or on its own initiative. A revocation takes effect on the day on which it is made.

(4)
APRA must give the person written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.

(5)
As soon as practicable after a notice is given to a person under subsection (4), APRA must cause particulars of the disqualification, revocation or refusal to which the notice relates:

(a) to be given:

(i) if the person is, or is acting as, a person referred to in paragraph 19(1)(a) or (2)(a) - to the ADI concerned; or

(ii) if the person is, or is acting as, a person referred to in paragraph 19(1)(b) or (2)(b) - to the foreign ADI concerned; or

(iii) if the person is, or is acting as, a person referred to in paragraph 19(1)(c) or (2)(c) - to the authorised NOHC; and

(b) to be published in the Gazette .

(6)
Part VI applies to a disqualification under this section or to a refusal to revoke such a disqualification.

S 21 inserted by No 116 of 2003, s 3 and Sch 2 item 17, effective 28 November 2003.

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New references to court orders to include references to disqualifications by APRA
Item	Column 1 Reference	Column 2 Provision of the Banking Act	Column 3 Reference taken to be included
1	a person who was disqualified under section 21	section 19 and paragraph 22(1)(a)	a person who was disqualified under section 21 under a disqualification that is continued in force under subitem (1)
2	a person disqualified under section 21 by the Federal Court of Australia	paragraph 22(1)(f)	a person disqualified under section 21 by APRA under a disqualification that is continued in force under subitem (1)
3	an order made under section 21	paragraph 22(1)(a) and subsection 22(2)	a disqualification made under section 21 that is continued in force under subitem (1)