Commonwealth Consolidated Acts

BANKING ACT 1959 - SECT 14A

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).

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.

  (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.

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.

  (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.

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.

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.

  (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.

Interpretation

  (6)   In this section:

"officer" , in relation to a body corporate, has the same meaning as in section   11CG.