Banking Act 1959

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

Division 3 - Governance

SECTION 22 Court power to revoke or vary a disqualification etc

(1)
A disqualified person, or APRA, may apply to the Federal Court of Australia for:

(a) if the person is a disqualified person only because he or she was disqualified under section 21 - a variation or a revocation of the order made under that section; or

(b) otherwise - an order that the person is not a disqualified person.

(2)
If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 20 , the person is not a disqualified person .

(3)
At least 21 days before commencing proceedings, written notice of the application must be lodged:

(a) if the disqualified person makes the application - by the person with APRA; or

(b) if APRA makes the application - by APRA with the disqualified person.

(4)
An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.

View history note

History

S 22 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 22 formerly read:

SECTION 22 APRA may determine that a person is not a disqualified person
(1)
Despite section 20, APRA may determine (in writing) that a person is not a disqualified person . APRA may do so on its own initiative or on the application of the person.

(2)
However, APRA may only make the determination if it is satisfied that the person is highly unlikely to be a prudential risk to any ADI or authorised NOHC.

(3)
If a person applies for a determination under this section, APRA must:

(a) either make, or refuse to make, the determination; and

(b) in the case of a refusal, give the person written notice of the refusal.

(4)
APRA may do any of the following:

(a) when making a determination under subsection (1), specify in the determination conditions to which the determination is to be subject.

(b) at any later time while a determination under subsection (1) is in force, make a further determination specifying conditions or additional conditions to which the determination under subsection (1) is to be subject;

(c) at any time make a determination varying or revoking conditions that have been specified under paragraph (a) or (b).

(5)
A determination takes effect on the day on which it is made.

(6)
APRA must, as soon as practicable after a determination is made, give written notice of the making of the determination, and a copy of the determination, to the person concerned and to any affected ADI or authorised NOHC.

(7)
A notice of a refusal to make a determination, or a notice of the making of a determination that specifies or varies conditions, must state the reasons for the refusal or for the specifying or variation of the conditions, as the case may be.

(8)
APRA may revoke a determination under this section by giving written notice to the person concerned and must give a copy of the notice to any affected ADI or authorised NOHC.

(9)
The revocation of a determination takes effect on the day specified in the instrument of revocation, which must be not earlier than 7 days after the instrument is signed.

(10)
Part VI applies to a refusal of APRA to make a determination under this section, to a determination under this section that specifies conditions, to a determination under this section that varies conditions in a way that is more onerous on the person concerned or to the revocation of a determination under this section.

S 22 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)