Financial Sector Reform (Consequential Amendments) Act 1998 (Cth)

Financial Sector Reform (Consequential Amendments) Act 1998

Act No. 48 of 1998 as amended

This compilation was prepared on 5 August 2002

[This Act was amended by Acts Nos. 44 and 156 of 1999 and No. 57 of 2002]

Amendments from Act No. 44 of 1999

[Schedule 6 (item 15) repealed subsections

2(3), (6), (8), (9), (10), (11) and (12)

Schedule 6 (item 16) repealed the heading above,

and items 7 to 9 of Schedule 1

Schedule 6 (item 17) repealed the heading above,

and items 39 to 41 of Schedule 1

Schedule 6 (item 18) amended item 76 of Schedule 1

Schedule 6 (item 19) amended item 23 of Schedule 2

Schedule 6 (items 15 to 17 commenced on 17 June 1999

Schedule 6 (items 18 and 19) commenced on 1 July 1998]

Amendments from Act No. 156 of 1999

[Schedule 7 (item 18) repealed and substituted the

heading to Schedule 3

Schedule 7 (item 18) commenced on 29 June 1998]

Amendments from Act No. 57 of 2002

[Schedule 12 (item 72) repealed Item 92 of Schedule 1

Schedule 12 (item 72) commenced on 3 July 2002]

Prepared by the Office of Legislative Drafting,

Attorney‑General’s Department, Canberra

Contents

An Act to make consequential amendments related to the enactment of the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998, and for other purposes

[Assented to 29 June 1998]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Financial Sector Reform (Consequential Amendments) Act 1998.

2Commencement

(1)
Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2)
Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the commencement of the Australian Prudential Regulation Authority Act 1998.
(4)
Item 25 of Schedule 1 to this Act commences on the later of the following times:
(a)
the commencement of the Australian Prudential Regulation Authority Act 1998;
(b)
immediately after the commencement of item 9 of Schedule 1 to the Cheques and Payment Orders Amendment Act 1998.
(5)
If item 2 of Schedule 1 to the Cheques and Payment Orders Amendment Act 1998 commences on or before the commencement of the Australian Prudential Regulation Authority Act 1998, item 26 of Schedule 1 to this Act does not commence.
(7)
If item 24 of Schedule 2 to the Insurance Laws Amendment Act 1998 commences on or before the commencement of the Australian Prudential Regulation Authority Act 1998, items 109 to 113 of Schedule 1 to this Act do not commence.
(13)
Items 1, 6, 18, 20 and 21 of Schedule 2 commence immediately after the commencement of Schedule 1 to the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998.
(14)
Items 4, 6, 12, 14, 15, 16 and 28 of Schedule 3 commence immediately after the commencement of the Managed Investments Act 1998.

3Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Note: If:
(a) an Act is amended by an item in a Schedule to this Act; and
(b) the short title of the Act is changed on or before the commencement of the item;
the amendment made by the item has effect as an amendment of the Act under its new short title—see section 10 of the Acts Interpretation Act 1901.

4Transitional provisions

Treatment of approvals of banks under the Anglo‑Australian Telescope Agreement Act 1970
(1)
An approval of a bank that is in force immediately before the commencement of item 5 of Schedule 1 for the purposes of subsection 12(3) of the Anglo‑Australian Telescope Agreement Act 1970 as then in force is to be taken, after that commencement, to be an approval of the bank for the purposes of the definition of ADI in subsection 12(3) of that Act as in force immediately after that commencement.
Treatment of approvals and authorisations under the Bankruptcy Act 1966
(2)
An approval of a bank, or an authorisation of a person, that is in force immediately before the commencement of item 10 of Schedule 1 for the purposes of the definition of approved bank in subsection 5(1) of the Bankruptcy Act 1966 as then in force is to be taken, after that commencement, to be an approval of the bank or an authorisation of the person for the purposes of the definition of ADI in subsection 5(1) of that Act as in force immediately after that commencement.

Schedule 1Consequential amendment of Acts

Advisory Council for Inter-government Relations Act 1976

Subsection 2(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
a bank incorporated under a law of a State.

Subsection 2(1) (definition of approved bank)

Repeal the definition.

Subsection 16F(1)

Omit “an approved bank or approved banks”, substitute “an ADI or ADIs”.
Note: The heading to section 16F is replaced by the heading “Accounts with ADIs”.

Paragraph 16G(2)(a)

Omit “approved bank”, substitute “ADI”.

Anglo‑Australian Telescope Agreement Act 1970

Subsection 12(1)

Omit “approved bank or approved banks”, substitute “ADI or ADIs”.
Note: The heading to section 12 is replaced by the heading “Accounts with ADIs”.

Subsection 12(3)

Repeal the subsection, substitute:
(3)
In this section:
ADI (authorised deposit‑taking institution) means:
(a)
an ADI within the meaning of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
any other bank approved in writing for the purposes of this definition by the Treasurer.

Bankruptcy Act 1966

Subsection 5(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
any other bank approved in writing for the purposes of this definition:
(i)
by the Treasurer; or
(ii)
by a person authorised in writing by the Treasurer to give approvals for the purposes of this definition.

Subsection 5(1) (definition of approved bank)

Repeal the definition.

Subsection 20B(4)

Omit “approved bank or approved banks”, substitute “ADI or ADIs”.

Subsection 20D(1)

Omit “approved bank” (wherever occurring), substitute “ADI”.

Subsection 20D(4)

Omit “a bank or banks” (wherever occurring), substitute “an ADI or ADIs”.
15
Subsection 20D(8) (paragraph (f) of the definition of public securities)
Omit “a bank as defined by subsection 5(1) of the Banking Act 1959”, substitute “an ADI”.

Subsection 20E(1)

Omit “a bank or banks”, substitute “an ADI or ADIs”.

Subsection 125(3)

Insert:
bank means an ADI or any other bank.

At the end of section 126

Add:
(4)
In this section:
banker means an ADI or any other banker.

Paragraph 139U(3)(c)

Omit “a bank”, substitute “an ADI”.

Section 168

Omit “banking”.

At the end of section 169

Add:
(5)
In this section:
bank means an ADI or any other bank.

Subsection 285(1)

Omit “bank or other person”, substitute “institution”.

Paragraph 285(2)(b)

Omit “bank or building society”, substitute “institution”.

Broadcasting Services Act 1992

24
Subclause 4(4) of Schedule 1 (paragraph (a) of the definition of authorised lender)
Omit “a bank”, substitute “an ADI (authorised deposit‑taking institution)”.

Cheques Act 1986

25
Subsection 3(1) (paragraph (b) of the definition of financial institution)
Repeal the paragraph, substitute:
1. (b)
  a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or

Cheques and Payment Orders Act 1986

26
Subsection 3(1) (paragraph (b) of the definition of bank)
Repeal the paragraph, substitute:
1. (b)
  a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959;

Child Care Payments Act 1997

Section 5

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Subsections 62(1) and (2)

Omit “bank”, substitute “*bank”.

Subsection 67(1)

Omit “bank”, substitute “*bank”.

Subsection 114(1)

Omit “bank”, substitute “*bank”.

Subsection 119(1)

Omit “bank”, substitute “*bank”.

Coal Mining Industry (Long Service Leave Funding) Act 1992

Subsection 4(1) (definition of approved bank)

Repeal the definition.

Subsection 4(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

At the end of section 7

Add:
(4)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Commonwealth Electoral Act 1918

Subsection 170(3)

Omit “banker’s cheque”, substitute “cheque drawn by a bank or other financial institution on itself”.

Commonwealth Inscribed Stock Act 1911

At the end of section 52A

Add:
(2)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Crimes (Currency) Act 1981

Subsection 28(1)

Omit “a bank (including an officer of the Reserve Bank Service)”, substitute “an ADI or of the Reserve Bank Service”.

Subsection 28(3)

Repeal the subsection, substitute:
(3)
In subsection (1):
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

Debits Tax Administration Act 1982

42
Subsection 3(1) (at the end of the definition of bank)
Add:
Note: Not all persons carrying on banking business are called banks. For example, an ADI (authorised deposit‑taking institution) under the Banking Act 1959 carries on banking business. If its business includes the keeping of accounts that may be drawn on by cheque, it will be a bank for the purposes of this Act.
Defence Force Retirement and Death Benefits Act 1973

At the end of section 40

Add:
(2)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991

Subsection 6A(6)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia.
45
Subsection 6A(6) (paragraph (a) of the definition of notified trust account)
Omit “a branch in Australia of a bank (within the meaning of the Banking Act 1959)”, substitute “an ADI in Australia”.
46
Subsection 6A(6) (paragraph (c) of the definition of notified trust account)
Omit “bank”, substitute “ADI”.

Farm Household Support Act 1992

Subsection 3(1)

Insert the following entry in its appropriate alphabetical position (determined on a letter-by-letter basis):
bank

Financial Corporations (Transfer of Assets and Liabilities) Act 1993

Section 3

Insert:
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

Section 3

Insert:
ADI authority means an authority under subsection 9(3) of the Banking Act 1959.

Section 3 (definition of banking authority)

Repeal the definition.

Section 3

Insert:
eligible foreign ADI means an ADI:
(a)
that is a foreign ADI for the purposes of the Banking Act 1959; and
(b)
that:
(i)
was granted its ADI authority before this Act commenced; or
(ii)
is or was granted its ADI authority after this Act commenced pursuant to an application made either before, or not later than 3 years after, this Act commenced.
52
Section 3 (definition of eligible foreign bank)
Repeal the definition.

Section 3

Insert:
eligible local ADI means a local ADI that was granted its ADI authority on or before 18 June 1993.

Section 3 (definition of eligible local bank)

Repeal the definition.

Section 3 (definition of eligible subsidiary)

Omit “bank” (wherever occurring), substitute “ADI”.

Section 3:

Insert:
local ADI means an ADI that is incorporated under a law of the Commonwealth, a State or a Territory relating to companies.

Section 3 (definition of local bank)

Repeal the definition.

Section 3

Insert:
newly established local ADI means a local ADI that:
(a)
was granted its ADI authority before this Act commenced but after 18 June 1993; or
(b)
is or was granted its ADI authority after this Act commenced pursuant to an application made either before, or not later than 3 years after, this Act commenced.
59
Section 3 (definition of newly established local bank)
Repeal the definition.

Section 6

Omit “bank” (wherever occurring), substitute “ADI”.

Section 6

Omit “a banking authority”, substitute “an ADI authority”.

Subsections 7(2), (3), (4) and (5)

Omit “bank” (wherever occurring), substitute “ADI”.

Paragraphs 7(6)(a) and (7)(a) and (b)

Omit “a banking authority”, substitute “an ADI authority”.

Financial Transaction Reports Act 1988

Subsection 3(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Subsection 3(1) (definition of bank)

Repeal the definition.
Note: The heading to section 24 is altered by omitting “bank”.

Subsection 3(1)

Insert:
banker includes a body corporate that is an ADI.
67
Subsection 3(1) (paragraph (a) of the definition of financial institution)
Repeal the paragraph, substitute:
(a)
an ADI; or

Subsection 15(4)

Omit “A bank”, substitute “An ADI”.

Subsection 15(4)

Omit “the bank”, substitute “the ADI”.

Paragraph 15(5)(a)

Omit “a bank”, substitute “an ADI”.

Subparagraphs 17B(1)(b)(i) and (ii)

Omit “a bank”, substitute “an ADI”.

Section 17C

Repeal the section, substitute:

17CADI acting on behalf of another ADI

For the purposes of this Division, if:
(a)
an ADI (the first ADI) is acting on behalf of, or at the request of, another ADI (the second ADI); and
(b)
the second ADI is (whether or not as a result of one or more previous applications of this section) acting on behalf of, or at the request of, a person who is not an ADI;
the first ADI is taken to be acting on behalf of that person.

Paragraph 23A(1)(a)

Omit “a bank (the transferor bank)”, substitute “an ADI (the transferor ADI)”.
Note: The heading to section 23A is replaced by the heading “Active ADI accounts transferred to another ADI—obligations of ADIs in relation to records of information”.

Paragraph 23A(1)(a)

Omit “transferor bank by”, substitute “transferor ADI by”.

Paragraph 23A(1)(b)

Omit “another bank (the transferee bank)”, substitute “another ADI (the transferee ADI)”.
76
Subparagraph 23A(1)(b)(ii) and subsections 23A(2), (4), (5) and (6)
Omit “bank” (wherever occurring), substitute “ADI”.
Note: The headings to subsections 23A(2), (4), (5) and (6) are altered by omitting “bank” (wherever occurring) and substituting “ADI”.

Subsection 23B(1)

Omit “a bank (the transferor bank)”, substitute “an ADI (the transferor ADI)”.
Note: The heading to section 23B is replaced by the heading “Closed ADI accounts transferred to another ADI—obligations of ADIs in relation to records of information”.

Paragraph 23B(1)(a)

Omit “the transferor bank by”, substitute “the transferor ADI by”.

Paragraph 23B(1)(c)

Omit “transferor bank”, substitute “transferor ADI”.

Paragraph 23B(1)(c)

Omit “another bank (the transferee bank)”, substitute “another ADI (the transferee ADI)”.
81
Paragraph 23B(1)(d) and subsections 23B(2), (3), (4) and (5)
Omit “bank” (wherever occurring), substitute “ADI”.
Note: The headings to subsections 23B(2), (3), (4) and (5) are altered by omitting “bank” (wherever occurring) and substituting “ADI”.

Health Insurance Act 1973

Subsection 3(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Income Tax Assessment Act 1936

Subsection 6(1)

Insert:
bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Paragraph 16(4)(hc)

Omit “the Insurance and Superannuation Commissioner, for the purpose of the administration of the Superannuation Entities (Taxation) Act 1987”, substitute “the Australian Prudential Regulation Authority, for the purpose of the administration of the Superannuation (Excluded Funds) Taxation Act 1987”.

Paragraph 16(4)(hca)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission”.

After paragraph 16(4)(hca)

Insert:
(hcb)
the Australian Prudential Regulation Authority, for the purpose of the administration of the Financial Institutions Supervisory Levies Collection Act 1998;

Paragraph 128AE(2)(a)

Repeal the paragraph, substitute:
(a)
a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or
88
Section 159GZA (paragraph (a) of the definition of financial institution)
Repeal the paragraph, substitute:
(a)
a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or

Paragraphs 159GZLA(1)(a) and 159GZLB(1)(a)

Omit “bank within the meaning of the Banking Act 1959”, substitute “body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959”.

Section 160ZZV (definition of foreign bank)

Omit “foreign bank as defined by subsection 5(1) of the Banking Act 1959”, substitute “body corporate that is a foreign ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959”.
91
Section 202A (paragraph (b) of the definition of bank)
Repeal the paragraph, substitute:
(b)
a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or

At the end of section 262A

Add:
(6)
In this section:
foreign bank means body corporate that is a foreign ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Subsections 275A(2), (4), (5) and (6)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority”.

Subparagraph 300A(2)(b)(i)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority”.

Subparagraph 300B(2)(b)(i)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority”.
97
Section 317 (paragraph (a) of the definition of AFI)
Repeal the paragraph, substitute:
(a)
a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959;

Insurance Act 1973

Subsection 3(1)

Insert:
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

Subsection 3(1)

Insert:
bank or banker includes, but is not limited to, a body corporate that is an ADI.
100
Subsection 3(1) (paragraph (c) of the definition of insurance business)
Omit “a bank within the meaning of the Banking Act 1959”, substitute “an ADI”.

101

Subparagraph 30(1)(d)(ii)

Omit “a bank as defined in subsection 5(1) of the Banking Act 1959”, substitute “an ADI”.

102

Paragraph 30(4A)(a)

Omit “a bank as defined by subsection 5(1) of the Banking Act 1959”, substitute “an ADI”.

103

Subparagraph 49B(1)(b)(iii)

Repeal the subparagraph, substitute:
(iii)
an ADI; or

104

Subparagraph 49B(2)(b)(iii)

Repeal the subparagraph, substitute:
(iii)
an ADI; or

105

Subparagraph 49E(1)(e)(ii)

Omit “a bank as defined in subsection 5(1) of the Banking Act 1959”, substitute “an ADI”.

106

Paragraph 49E(7)(a)

Omit “a bank as defined in subsection 5(1) of the Banking Act 1959”, substitute “an ADI”.

107

Subsection 119(1)

Omit “a bank within the meaning of the Banking Act 1959”, substitute “an ADI”.

108

Subsection 119(2)

After “A bank”, insert “(including an ADI)”.

109

Subparagraph 2(1) of the Schedule

Omit “a bank within the meaning of the Banking Act 1959”, substitute “an ADI”.

110

Subparagraph 2(4) of the Schedule

Omit “a bank” (first occurring), substitute “an ADI”.

111

Subparagraph 2(4) of the Schedule

Omit “a bank within the meaning of the Banking Act 1959”, substitute “an ADI”.

112

Subparagraph 9(1) of the Schedule

Omit “a bank within the meaning of the Banking Act 1959”, substitute “an ADI”.

113

Subparagraph 9(2) of the Schedule

After “A bank”, insert “(including an ADI)”.

Insurance (Agents and Brokers) Act 1984

114

Section 9

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

115

Subsection 26(1A)

Before “includes”, insert “, in addition to the meaning it is given in section 9,”.

Life Insurance Act 1995

116

Dictionary in the Schedule

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Loan (Income Equalization Deposits) Act 1976

117

At the end of section 14

Add:
(2)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Management and Investment Companies Act 1983

118

Subsection 3(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
any other bank constituted by a law of a State or internal Territory.

119

Subsection 3(1) (definition of bank)

Repeal the definition.

120

Paragraph 37(1)(a)

Omit “a bank”, substitute “an ADI”.

National Health Act 1953

121

At the end of section 82ZL

Add:
(3)
In this section:
bank account includes, but is not limited to, an account with a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Navigation Act 1912

122

Subsection 6(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Northern Territory (Lessees’ Loans Guarantee) Act 1954

123

Section 3

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia.

124

Section 3 (definition of bank)

Repeal the definition.

125

Subsection 4(1)

Omit “a bank”, substitute “an ADI”.

126

Subsections 4(1), (2) and (3)

Omit “the bank”, substitute “the ADI”.

Parliamentary Contributory Superannuation Act 1948

127

Sub-subparagraph 26B(4)(c)(iv)(E)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Securities and Investments Commission”.

Pooled Development Funds Act 1992

128

Subsection 4(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
a bank constituted by a law of a State or internal Territory.

129

Subsection 4(1) (definition of bank)

Repeal the definition.

130

Subsection 31(1)

Omit “a bank or”, substitute “an ADI or a”.

Prawn Export Promotion Act 1995

131

At the end of section 9

Add:
(5)
In this section:
bank includes, but is not limited to, an ADI (authorised deposit‑taking institution) within the meaning of the Banking Act 1959.

Prices Surveillance Act 1983

132

Subsection 3(1)

Insert:
banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Privacy Act 1988

133
Subsection 6(1) (paragraph (b) of the definition of bank)
Repeal the paragraph, substitute:
1. (b)
  a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or

Proceeds of Crime Act 1987

134

Subsection 4(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
the Reserve Bank of Australia; or
(c)
a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

135

Subsection 4(1) (definition of bank)

Repeal the definition.

136

Subsection 66(5)

Omit “bankers’ books”, substitute “the books of an ADI”.
137
Subsection 66(15) (definition of bankers’ books)
Repeal the definition.

138

Subsection 66(15)

Insert:
books of an ADI means any accounting records used in the ordinary business of an ADI, including ledgers, day‑books, cash‑books and account books.

139

Paragraph 78A(1)(a)

Omit “a bank (the transferor bank)”, substitute “an ADI (the transferor ADI)”.
Note: The heading to section 78A is replaced by the heading “Active ADI accounts transferred to another ADI—obligations of ADIs in relation to documents”.

140

Paragraph 78A(1)(a)

Omit “the transferor bank by”, substitute “the transferor ADI by”.

141

Paragraph 78A(1)(b)

Omit “another bank (the transferee bank), substitute “another ADI (the transferee ADI)”.

142

Subparagraph 78A(1)(b)(ii)

Omit “bank” (wherever occurring), substitute “ADI”.

143

Subsections 78A(2), (4) and (5)

Omit “bank” (wherever occurring), substitute “ADI”.
Note: The headings to subsections 78A(2), (4) and (5) are altered by omitting “bank” (wherever occurring) and substituting “ADI”.

144

Paragraph 78B(1)(a)

Omit “a bank (the transferor bank)”, substitute “an ADI (the transferor ADI)”.
Note: The heading to section 78B is replaced by the heading “Closed ADI accounts transferred to another ADI—obligations of ADIs in relation to documents”.

145

Paragraph 78B(1)(a)

Omit “the transferor bank by”, substitute “the transferor ADI by”.

146

Paragraph 78B(1)(c)

Omit “transferor bank”, substitute “transferor ADI”.

147

Paragraph 78B(1)(c)

Omit “another bank (the transferee bank)”, substitute “another ADI (the transferee ADI)”.
148
Paragraph 78B(1)(d) and subsections 78B(2), (3) and (4)
Omit “bank” (wherever occurring), substitute “ADI”.
Note: The headings to subsections 78B(2), (3) and (4) are altered by omitting “bank” (wherever occurring) and substituting “ADI”.

Reserve Bank Act 1959

149

Subsection 5(1)

Insert:
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

150

Subsection 5(1) (definition of bank)

Repeal the definition.
Note: The heading to section 43 is replaced by the heading “Bank not to issue notes other than Australian notes”.

151

Subsection 74(2)

Omit “other bank”, substitute “ADI”.

152

Paragraph 75(c)

Omit “a bank”, substitute “an ADI”.

153

Section 86

Omit “section 16”, substitute “subsection 13A(3)”.

154

Section 86

Omit “a bank specified in the First Schedule to that Act”, substitute “an ADI”.
Note: The heading to section 86 is altered by omitting “banks” and substituting “ADIs”.

Retirement Savings Accounts Act 1997

155

Subsection 11(2)

Omit “a bank,”, substitute “an ADI or a”.

156

Section 16

Insert:
ADI (authorised deposit‑taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

157

Section 16 (definition of bank)

Repeal the definition.

158

Section 16 (definition of contribution)

Omit “a bank or”, substitute “an ADI or a”.

159

Subsection 23(1)

Omit “a bank,”, substitute “an ADI or a”.

160

Paragraph 33(2)(b)

Omit “a bank,”, substitute “an ADI or a”.

Sales Tax Assessment Act 1992

161

At the end of section 91G

Add:
(11)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Sales Tax (Exemptions and Classifications) Act 1992

162

At the end of item 100 in Schedule 1

Add:

(3) In this item:

bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Small Superannuation Accounts Act 1995

163

Paragraph 64(1)(b)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Securities and Investments Commission”.

164

Subsection 64(6)

Repeal the subsection.

165

Section 75

Omit “Insurance and Superannuation Commissioner” (wherever occurring), substitute “Australian Securities and Investments Commission”.

166

Subsections 76(2), (6), (7) and (8)

Omit “Insurance and Superannuation Commissioner”, substitute “Australian Securities and Investments Commission”.
Note: The heading to subsection 76(2) is altered by omitting “Insurance and Superannuation Commissioner” and substituting “Australian Securities and Investments Commission”.

Social Security Act 1991

167

Section 3 (index)

Insert the following entry in its appropriate alphabetical position, determined on a letter-by-letter basis:

bank

23(1)

168

Subsection 23(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Student and Youth Assistance Act 1973

169

Subsection 3(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Superannuation Act 1976

170

Subsection 3(1)

Insert:
ASIC means the Australian Securities and Investments Commission.

171

Subsection 3(1) (definition of ISC)

Repeal the definition.

172

Paragraph 3B(1)(a)

Omit “Superannuation Entities (Taxation) Act 1987”, substitute “Superannuation (Excluded Funds) Taxation Act 1987”.

173

At the end of section 96A

Add:
(2)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

174

Paragraph 110R(7)(b)

Omit “the ISC”, substitute “ASIC”.

175

Subsection 119(3)

Omit “the ISC”, substitute “ASIC”.

176

Subsection 139AA(3)

Omit “the ISC”, substitute “ASIC”.
177
Subsection 155C(3) (paragraph (b) of the definition of eligible regulatory law)
Omit “Superannuation Entities (Taxation) Act 1987”, substitute “Superannuation (Excluded Funds) Taxation Act 1987”.
178
Subsection 155C(3) (after paragraph (b) of the definition of eligible regulatory law)
Insert:
(ba)
the Financial Institutions Supervisory Levies Collection Act 1998; or

Superannuation Act 1990

179

Subsection 44(1)

Insert:
bank includes, but is not limited to, any body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.
180
Subsection 49(3) (paragraph (b) of the definition of eligible regulatory law)
Omit “Superannuation Entities (Taxation) Act 1987”, substitute “Superannuation (Excluded Funds) Taxation Act 1987”.
181
Subsection 49(3) (after paragraph (b) of the definition of eligible regulatory law)
Insert:
(ba)
the Financial Institutions Supervisory Levies Collection Act 1998; or

Superannuation Contributions Tax (Assessment and Collection) Act 1997

182

Subsection 32(8)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission”.
Note: The heading to subsection 32(8) is altered by omitting “to Insurance and Superannuation Commissioner” and substituting “for the purpose of the Superannuation Industry (Supervision) Act 1993”.

Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997

183

Subsection 28(8)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission”.
Note: The heading to subsection 28(8) is altered by omitting “to Insurance and Superannuation Commissioner” and substituting “for the purpose of the Superannuation Industry (Supervision) Act 1993”.

Superannuation Industry (Supervision) Act 1993

184

Subsection 10(1)

Insert:
ADI (authorised deposit‑taking institution) means:
(a)
a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b)
a State bank.
185
Subsection 10(1) (definition of approved bank)
Repeal the definition.
186
Subsection 10(1) (paragraph (a) of the definition of approved guarantee)
Omit “approved bank”, substitute “ADI”.
187
Subsection 10(1) (paragraph (b) of the definition of approved guarantee)
Omit “non‑bank”, substitute “non‑ADI”.
188
Subsection 10(1) (definition of approved non‑bank financial institution)
Omit “non‑bank”, substitute “non‑ADI”.

189

Paragraph 71(1)(b)

Omit “approved bank”, substitute “ADI”.

190

Paragraph 71(1)(ba)

Omit “non‑bank”, substitute “non‑ADI”.

191

Paragraph 105(1)(a)

Omit “Superannuation Entities (Taxation) Act 1987”, substitute “Superannuation (Excluded Funds) Taxation Act 1987”.

Superannuation (Productivity Benefit) Act 1988

192

Paragraph 6(6)(e)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Securities and Investments Commission”.

Telecommunications Act 1997

193

Paragraph 219(3)(a)

Repeal the paragraph, substitute:
(a)
a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959; or
(aa)
the Reserve Bank of Australia; or

Trade Practices Act 1974

194

Subsection 4(1)

Insert:
banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Veterans’ Entitlements Act 1986

195

Section 5 (index)

Insert the following entry in its appropriate alphabetical position, determined on a letter-by-letter basis:

bank

5Q(1)

196

Subsection 5Q(1)

Insert:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Wool International Act 1993

197

At the end of section 22Y

Add:
(2)
In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) within the meaning of the Banking Act 1959.

Schedule 2Unconscionable conduct and consumer protection in relation to the supply of financial servicesPart 1Amendment of the Australian Securities and Investments Commission Act 1989

Subsection 1B(1)

After “section 12A”, insert “and Division 2 of Part 2”.
2
Subsection 5(1) (subparagraph (a)(iii) of the definition of national scheme law)
Add “(other than section 12A and Division 2 of Part 2)”.

Part 2 (heading)

Repeal the heading, substitute:

Part 2—The Commission and consumer protection in relation to financial services

Before section 7

Insert:

Division 1—Establishing the Commission

At the end of paragraph 11(1)(c)

Add “(other than section 12A and Division 2 of Part 2)”.

Subsection 12A(1)

After “on it by or under”, insert “Division 2 of Part 2 of this Act and by or under”.

At the end of Part 2

Add:

Division 2—Unconscionable conduct and consumer protection in relation to financial services

Subdivision A—Application

12AAConstitutional operation of Division

(1)
Without prejudice to its effect apart from this section, this Division also has effect as provided by this section.
(2)
This Division has, by force of this subsection, the effect it would have if:
(a)
references in this Division to trade or commerce were, by express provision, confined to trade or commerce:
(i)
between Australia and places outside Australia; or
(ii)
among the States; or
(iii)
within a Territory, between a State and a Territory or between 2 Territories; or
(iv)
by way of the supply of services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(b)
section 12DJ were, by express provision, confined in its operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(i)
trade or commerce between Australia and places outside Australia; or
(ii)
trade or commerce among the States; or
(iii)
trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(iv)
the supply of services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(c)
reference in Subdivision E (sections 12EA to 12ED) to a contract for the supply of services or to the supply of services were, by express provision, confined to a contract made, or to the supply of services:
(i)
in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii)
in the course of, or in relation to, trade or commerce among the States; or
(iii)
in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between 2 Territories; and
(d)
references in this Division to a corporation, except a reference in section 12BA, included a reference to a person other than a corporation.
(3)
In addition to the effect that this Division has as provided by subsection (2), the provisions of Subdivision C (sections 12CA to 12CB) and Subdivision D (sections 12DA to 12DN) have, by force of this subsection, the effect they would have if:
(a)
those provisions were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and
(b)
references in those provisions to a corporation included a reference to a person other than a corporation.
(4)
In addition to the effect that this Division has as provided by subsections (2) and (3), the provisions of Subdivision C (sections 12CA to 12CB) and Subdivision D (sections 12DA to 12DN) also have, by force of this subsection, the effect they would have if:
(a)
those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and
(b)
references in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.

12ABSubdivision E (sections 12EA to 12ED) does not apply to contracts entered into before 1 October 1974

Subdivision E (sections 12EA to 12ED) does not apply to a contract entered into before 1 October 1974.

12ACDivision extends to some conduct outside Australia

(1)
This Division extends to the engaging in conduct outside Australia by:
(a)
bodies corporate incorporated or carrying on business within Australia; or
(b)
Australian citizens; or
(c)
persons ordinarily resident within Australia.
(2)
If a claim under section 12GF is made in a proceeding, a person may rely at a hearing in respect of that proceeding on conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the reliance.
(3)
A person other than the Minister or the Commission may apply to the Court for an order under subsection 12GM(1) or (2) in a proceeding in respect of conduct to which a provision of this Division extends because of subsection (1) of this section only if the Minister consents in writing to the application.
(4)
The Minister must give a consent under subsection (2) or (3) in respect of a proceeding unless, in the Minister’s opinion:
(a)
the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and
(b)
it is not in the national interest to give the consent.

12ADApplication of Division to Commonwealth and Commonwealth authorities

(1) Subject to this section, this Division binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
(2)
Subject to subsections (3), (4), (5) and (6), this Division applies as if:
(a)
the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b)
each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;
were a corporation.
(3)
Nothing in this Division makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.
(4)
The protection in subsection (3) does not apply to an authority of the Commonwealth.
(5)
For the purposes of this section, the following transactions do not amount to carrying on a business:
(a)
a transaction involving only persons who are all acting for the Crown in right of the Commonwealth (and none of whom is an authority of the Commonwealth);

(b)
a transaction involving only persons who are all acting for the same authority of the Commonwealth;
(c)
a transaction involving only the Crown in right of the Commonwealth and one or more non-commercial authorities of the Commonwealth;
(d)
a transaction involving only non-commercial authorities of the Commonwealth.
(6)
Subsection (5) does not limit the things that do not amount to carrying on a business for the purposes of this section.
(7)
For the purposes of this section, an authority of the Commonwealth is non-commercial if:
(a)
it is constituted by only one person; and
(b)
it is neither a trading corporation nor a financial corporation.

12AESaving of other laws and remedies

(1)
Except as provided by subsection (2), Subdivision D (sections 12DA to 12DN) and Subdivision E (sections 12EA to 12ED) are not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2)
If :
(a)
an act or omission of a person is both an offence against section 12GB and an offence under the law of a State or Territory; and
(b)
the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.
(3)
Except as expressly provided by Subdivision D (sections 12DA to 12DN) or Subdivision E (sections 12EA to 12ED), nothing in those Subdivisions is taken to limit, restrict or otherwise affect any right or remedy a person would have had if that Subdivision had not been enacted.
(4)
This Division does not affect the operation of:
(a)
the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Division; or
(b)
the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Division.

Subdivision B—Interpretation

12BAInterpretation

(1)
In this Division, unless the contrary intention appears:
acquire, in relation to services, includes accept.
acquisition of services has the meaning given by section 12BD.
authority, in relation to a State or Territory (including an external Territory), means:
(a)
a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b)
an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a)
a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b)
an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
business includes a business not carried on for profit.
consumer has the meaning given by section 12BC.
conduct has the meaning given by subsection (2).
contract has the meaning given by section 12BE.
corporation means a body corporate that:
(a)
is a foreign corporation; or
(b)
is a trading corporation formed within the limits of Australia or is a financial corporation so formed; or
(c)
is incorporated in a Territory; or
(d)
is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).
covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land) and proposed covenant has a corresponding meaning.
engage in conduct has the meaning given by subsection (2).
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
financial corporation:
(a)
means a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and
(b)
includes a body corporate that carries on as its sole or principal business the business of:
(i)
banking (other than State banking not extending beyond the limits of the State concerned); or
(ii)
insurance (other than State insurance not extending beyond the limits of the State concerned).
financial product means:
(a)
a facility for taking money on deposit (otherwise than as part-payment for identified services) made available in the course of conducting a banking business within the meaning of the Banking Act 1959; or
(b)
a security; or
(c)
a futures contract; or
(d)
a contract of insurance (including a life policy or a sinking fund policy within the meaning of the Life Insurance Act 1995); or
(e)
a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997; or
(f)
a superannuation interest within the meaning of the Superannuation Industry (Supervision) Act 1993;
but does not include a foreign exchange contract.
financial service means a service that:
(a)
consists of providing a financial product; or
(b)
is otherwise supplied in relation to a financial product.
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.
misleading has the meaning given by section 12BB.
price includes a charge of any description.
provision, in relation to an understanding, means any matter forming part of the understanding.
re-supply of services has the meaning given by section 12BD.
send includes deliver, and sent and sender have corresponding meanings.
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce but does not include:
(a)
the supply of goods within the meaning of the Trade Practices Act 1974; or
(b)
the performance of work under a contract of service.
supply:
(a)
includes provide, grant or confer when used as a verb in relation to services; and
(b)
has a corresponding meaning when used as a noun;
and supplied and supplier have corresponding meanings.
supply of services has the meaning given by section 12BD.
Territory means:
(a)
an internal Territory; or
(b)
the Territory of Christmas Island; or
(c)
the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of Australia.
trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.
trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.
unsolicited financial services means financial services supplied to a person without any request made by the person or on the person’s behalf.
(2)
In this Division:
(a)
a reference to engaging in conduct is a reference to doing or refusing to do any act, including:
(i)
making, or giving effect to a provision of, a contract or arrangement; or
(ii)
arriving at, or giving effect to a provision of, an understanding; or
(iii)
requiring the giving of, or giving, a covenant; and
(b)
a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to doing or refusing to do any act, including:
(i)
making, or giving effect to a provision of, a contract or arrangement; or
(ii)
arriving at, or giving effect to a provision of, an understanding; or
(iii)
requiring the giving of, or giving, a covenant; and
(c)
a reference to refusing to do an act includes a reference to:
(i)
refraining (otherwise than inadvertently) from doing that act; or
(ii)
making it known that that act will not be done; and
(d)
a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

12BBMisleading representations

(1)
For the purposes of section 12CB and Subdivision D (sections 12DA to 12DN), if a corporation makes a representation about a future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation is taken to be misleading.
(2)
For the purpose of applying subsection (1) to a proceeding concerning a representation made by a corporation about a future matter, the corporation is taken not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary.
(3)
Subsection (1) does not limit by implication the meaning of a reference in this Division to:
(a)
a misleading representation; or
(b)
a representation that is misleading in a material particular; or
(c)
conduct that is misleading or is likely or liable to mislead.

12BCConsumers

(1)
For the purposes of this Division, unless the contrary intention appears, a person is taken to have acquired particular financial services as a consumer if, and only if:
(a)
the price of the services did not exceed the prescribed amount; or
(b)
if the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use; or
(c)
if the services were acquired by a person within the meaning of subsection (2) and the price of the services exceeded the prescribed amount—the services were of a kind ordinarily acquired for business use.
(2)
For the purposes of this Division, person includes:
(a)
a person or corporation employing fewer than 20 people; or
(b)
if the person or corporation is engaged in the manufacture of any goods—a person or corporation employing fewer than 100 people.
(3)
For the purposes of subsection (1):
(a)
the prescribed amount is:
(i)
$40,000; or
(ii)
if a greater amount is prescribed for the purposes of this paragraph—that greater amount; and
(b)
subject to paragraph (c), the price of services purchased by a person is taken to have been the amount paid or payable by the person for the services; and
(c)
if a person purchased services together with other property or services, or with both other property and services, and a specified price was not allocated to the services in the contract under which they were purchased, the price of the services is taken to have been:
(i)
the price at which, at the time of the acquisition, the person could have purchased the services from the supplier without the other property or services; or
(ii)
if, at the time of the acquisition, the services were only available for purchase from the supplier together with the other property or services but, at that time, services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii)
if, at the time of the acquisition, services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the services at that time; and
(d)
if a person acquired services otherwise than by way of purchase, the price of the services is taken to have been:
(i)
the price at which, at the time of the acquisition, the person could have purchased the services from the supplier; or
(ii)
if, at the time of the acquisition, the services were not available for purchase from the supplier, or were available only together with other property or services, but, at that time, services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased services of that kind from another supplier; or
(iii)
if services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier, or were not available except together with other property or services—the value of the services at that time; and
(e)
without limiting by implication the meaning of the expression services in subsection 12BA(1), the obtaining of credit by a person in connection with the person’s acquisition of services is taken to be the acquisition by the person of a service and any amount by which the amount paid or payable by the person for the services is increased by reason of the person’s so obtaining credit is taken to be paid or payable by the person for that service.
(4)
If it is alleged in a proceeding under this Division, or in any other proceeding in respect of a matter arising under this Division, that a person was a consumer in relation to particular services, it is presumed that the person was a consumer in relation to those services unless the contrary is established.

12BDAcquisition, supply and re-supply

In this Division, unless the contrary intention appears:
(a)
a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services; and
(b)
a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(c)
a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to:
(i)
a supply of the original services to another person in an altered form or condition; and
(ii)
a supply to another person of other services that are substantially similar to the original services and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

12BEApplication of Division in relation to leases and licences of land and buildings

In this Division:
(a)
a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Division to such leases or licences); and
(b)
a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence.

Subdivision C—Unconscionable conduct

12CAUnconscionable conduct within the meaning of the unwritten law of the States and Territories

(1)
A corporation must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.
(2)
This section does not apply to conduct that is prohibited by section 12CB.

12CBUnconscionable conduct

(1)
A corporation must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable.
(2)
Without limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of services to a person (the consumer), the Court may have regard to:
(a)
the relative strengths of the bargaining positions of the corporation and the consumer; and
(b)
whether, as a result of conduct engaged in by the corporation, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation; and
(c)
whether the consumer was able to understand any documents relating to the supply or possible supply of the services; and
(d)
whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the corporation or a person acting on behalf of the corporation in relation to the supply or possible supply of the services; and
(e)
the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent services from a person other than the corporation.
(3)
A corporation is not taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of financial services to a person merely because the corporation:
(a)
institutes legal proceedings in relation to that supply or possible supply; or
(b)
refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4)
For the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of financial services to a person:
(a)
the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b)
the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(5)
A reference in this section to financial services is a reference to financial services of a kind ordinarily acquired for personal, domestic or household use.

Subdivision D—Consumer protection

12DAMisleading or deceptive conduct

(1)
A corporation must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.
(2)
Nothing in sections 12DB to 12DN limits by implication the generality of subsection (1).

12DBFalse or misleading representations

A corporation must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services:
(a)
falsely represent that services are of a particular standard, quality, value or grade; or
(b)
falsely represent that a particular person has agreed to acquire services; or
(c)
represent that services have sponsorship, approval, performance characteristics, uses or benefits they do not have; or
(d)
represent that the corporation has a sponsorship, approval or affiliation it does not have; or
(e)
make a false or misleading representation with respect to the price of services; or
(f)
make a false or misleading representation concerning the need for any services; or
(g)
make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

12DCFalse representations and other misleading or offensive conduct in relation to securities that involve interests in land

(1)
A corporation must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of a security that consists of or includes an interest in land, or in connection with the promotion by any means of the sale or grant of an interest in land:
(a)
represent that the corporation has a sponsorship, approval or affiliation it does not have; or
(b)
make a false or misleading representation concerning the nature of the interest in the land, the price payable for the security, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; or
(c)
offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.
(2)
A corporation must not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of a security that consists of or includes an interest in land or the payment for an interest in land.
(3)
In this section:
interest, in relation to land, means:
(a)
a legal or equitable estate or interest in the land; or
(b)
a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c)
a right, power or privilege over, or in connection with, the land.

12DDCash price to be stated in certain circumstances

A corporation must not, in trade or commerce, in connection with:
(a)
the supply or possible supply of financial services; or
(b)
the promotion by any means of the supply or use of financial services;
make a representation about an amount that, if paid, would constitute a part of the consideration for the supply of the services unless the corporation also specifies the cash price for the services.

12DEOffering gifts and prizes

A corporation must not, in trade or commerce, in connection with:

(a)
the Commission; or
(b)
a person authorised in writing by the Commission; or
(c)
a person authorised in writing by the Secretary to the Department;
must not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister in writing to give such consents.

12HDJurisdiction of Court to make declarations and orders

(1)
Subject to this section, a person may institute a proceeding in the Court seeking, in relation to a matter arising under this Division or under Part 3 in its application in relation to an investigation of a contravention of this Division, the making of:
(a)
a declaration in relation to the operation or effect of any provision of:
(i)
this Division other than the provisions of Subdivision E (sections 12EA to 12ED); or
(ii)
Part 3 as so applying; or
(b)
a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done, under this Division or Part 3 as so applying; or
(c)
an order by way of, or in the nature of, prohibition, certiorari or mandamus;
or both such a declaration and such an order, and the Court has jurisdiction to hear and determine the proceeding.
(2)
The Minister may institute a proceeding in the Court under this section and may intervene in any proceeding instituted in the Court under this section or in a proceeding instituted in any other court in which a party is seeking the making of a declaration or an order of a kind mentioned in subsection (1).
(3)
In this section, proceeding includes a cross-proceeding.

Subdivision I—Transitional

12IAConduct engaged in in relation to financial services before commencement

(1)
If:
(a)
conduct was, or may have been, engaged in in relation to financial services before the commencement of this Division; and
(b)
the conduct contravened, or may have contravened, Part IVA or V of the Trade Practices Act 1974; and
(c)
if the conduct had been engaged in after the commencement of this Division it would have, or may have, contravened this Division;
the Commission has, by virtue of this section, the same powers under the Trade Practices Act 1974 in relation to the conduct as the Australian Competition and Consumer Commission.
(2)
The Commission’s power of delegation under section 102 extends to the powers it has under subsection (1).

Before Division 1 of Part 3

Insert:

Division 1A—Application of Part 3

12BApplication of Part 3

(1)
If this Part is being applied as a law of a State, it has no effect in relation to an investigation of a contravention of Division 2 of Part 2.
(2)
If this Part is being applied in relation to an investigation of a contravention of Division 2 of Part 2:
(a)
subsection 35(1) has effect as if the words “within this jurisdiction” were omitted; and
(b)
subsection 37(10) has effect as if the words “a State or the Capital Territory” were substituted for the words “another jurisdiction”; and
(c)
section 81 has effect as if paragraph (a) were omitted; and
(d)
section 86 has effect as if the words “of this jurisdiction” were omitted; and
(e)
subsection 93(2) has effect as if the words “or of this or any other jurisdiction” were omitted.
(3)
If this Part is being applied in relation to an investigation of a contravention of Division 2 of Part 2, ignore any references in this Part to:
(a)
a corresponding law; and
(b)
a corresponding law of another jurisdiction.

At the end of section 13

Add:
(6)
If the Commission has reason to suspect that a contravention of a provision of Division 2 of Part 2 may have been committed, the Commission may make such investigation as it thinks appropriate.
Note: See section 12B on the application of this subsection as a law of a State.

After section 32

Insert:

32ANotice to produce books about financial services

The Commission may give to:
(a)
a person who supplies, or has supplied, a financial service; or
(b)
an eligible person in relation to that person;
a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:
(c)
the supply of the financial service; or
(d)
the financial service.

At the end of section 33

Add:
; or (c)
a matter referred to in paragraph 32A(c) or (d).

Subsection 34(3)

After “32”, insert “, 32A”.

Paragraph 49(1)(c)

After “jurisdiction”, insert “, or Division 2 of Part 2”.

Subsection 63(1)

After “32,”, insert “32A,”.

Subsection 67(2)

After “jurisdiction”, insert “or of Division 2 of Part 2,”.

After paragraph 80(1)(b)

Insert:
or (c)
a matter referred to in paragraph 32A(c) or (d);

After paragraph 91(1)(b)

Insert:
or (ba)
a person is convicted of an offence against Division 2 of Part 2 in a prosecution; or
(bb)
a judgment is awarded, or a declaration or other order is made, against a person under Division 2 of Part 2 in a proceeding in a court;

At the end of subsection 102(2)

Add:
; or (e)
a member of the staff of the Australian Competition and Consumer Commission referred to in subsection 27(1) of the Trade Practices Act 1974.

Before subsection 102(3)

Insert:
(2B)
The Commission must not delegate a function or power to:
(i)
a person referred to in paragraph (2)(e); or
(ii)
a person engaged under section 27A of the Trade Practices Act 1974;
unless the Chairperson of the Australian Competition and Consumer Commission has agreed to the delegation in writing.
20
Subsection 127(9) (paragraph (a) of the definition of protected information)
After “body”, insert “or person”.
21
Subsection 127(9) (paragraph (c) of the definition of protected information)
After “body”, insert “or person”.

At the end of section 138

Add:
(4)
In relation to the Commission’s functions under subsection 12FA(1), the report must include information about the Commission’s monitoring and promotion of market integrity and consumer protection in relation to:
(a)
the Australian financial system; and
(b)
the provision of financial services.

Subsection 246(1)

After “national scheme law”, insert “, section 12A or Division 2 of Part 2,”.

Part 2Amendment of the Trade Practices Act 1974

Subsection 4(1)

Insert:
financial product has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 1989.
financial service has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 1989.

After section 25

Insert:

26Delegation by Commission in relation to unconscionable conduct and consumer protection

(1)
The Commission may, by resolution, delegate any of its functions and powers under or in relation to Parts IVA, V and VI and any of its powers under Part XII that relate to those Parts, to a staff member of the Australian Securities and Investments Commission within the meaning of section 5 of the Australian Securities and Investments Commission Act 1989.
(2)
The Commission must not delegate a function or power under subsection (1) unless the Chairperson of the Australian Securities and Investments Commission has agreed to the delegation in writing.

Before section 51AA

Insert:

51AABPart does not apply to financial services

(1)
Section 51AA does not apply to conduct engaged in in relation to financial services.
(2)
Section 51AB does not apply to the supply, or possible supply, of services that are financial services.

Before section 51A

Insert:

51AFPart does not apply to financial services

(1)
This Part does not apply to the supply, or possible supply, of services that are financial services.
(2)
Without limiting subsection (1):
(a)
sections 52 and 55A do not apply to conduct engaged in in relation to financial services; and
(b)
if a security (within the meaning of the Corporations Law) consists of or includes an interest in land, section 53A does not apply to that interest; and
(c)
section 63A does not apply to a debit card that allows access to an account that is a financial product.
(3)
In subsection (2):
debit card has the same meaning as in section 63A.

Subsection 73(1)

After “section 74”, insert “of this Act or section 12ED of the Australian Securities and Investments Commission Act 1989”.

Subsection 73(2)

After “section 74”, insert “of this Act or section 12ED of the Australian Securities and Investments Commission Act 1989”.

Schedule 3Amendment of the Corporations Law set out in section 82 of the Corporations Act 1989Part 1Changing “Australian bank” to “Australian ADI”

Amendment of the Corporations Law

The provisions of the Corporations Law specified in this Part are amended by omitting “Australian bank” (wherever occurring) and substituting “Australian ADI”.
Note: The headings to sections 897, 931 and 1230 are altered by omitting “bank account” and substituting “ADI account”.
2
Section 9 (paragraph (a) of the definition of banker’s books)
3
Section 9 (subparagraph (a)(i) of the definition of clients’ segregated account)
4
Section 9 (paragraph (i) of the definition of managed investment scheme)

Subparagraph 65(1)(b)(iii)

Subparagraph 324(3)(a)(i)

Paragraph 362(2)(b)

Subparagraph 362(2)(c)(iii)

Subsections 362(9) and (10)

Paragraph 421(1)(a)

Paragraph 437D(3)(a)

Subparagraph 448C(2)(a)(i)

Paragraph 468(2)(b)

Subparagraph 532(3)(a)(i)

Subsection 601DE(1)

Subparagraph 857(4)(a)(i)

Paragraph 866(1)(a)

Paragraph 872(2)(a)

Subsection 873(3)

Paragraph 891(1)(a)

Section 897

Section 931

Paragraph 1052(1)(f)

Paragraphs 1083(1)(a) to (c)

Paragraph 1083(3)(b)

Sub-subparagraph 1209(5)(d)(iii)(A)

Subsection 1215(1)

Subparagraph 1215(4)(a)(i)

Subsection 1218(2)

Section 1230

Part 2Other changes

Section 9

Insert:
Australian ADI means:
(a)
an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959; and
(b)
a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Section 9

Insert:
bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.
33
Section 9 (paragraphs (b) to (d) of the definition of banker’s books)
Omit “Australian bank’s” (wherever occurring), substitute “Australian ADI’s”.
34
Section 9 (paragraph (c) of the definition of debenture)
Repeal the paragraph, substitute:
(c)
a document issued by an Australian ADI in the ordinary course of its banking business that evidences or acknowledges indebtedness of the ADI arising in the ordinary course of that business;
35
Section 9 (paragraph (j) of the definition of participation interest)
Repeal the paragraph, substitute:
(j)
a document issued or executed by an Australian ADI in the ordinary course of its banking business, being a document that evidences or acknowledges indebtedness of the ADI arising in the ordinary course of that business; or

Section 9 (definition of payment order)

Omit “, bank cheque”, substitute “(including a cheque that a bank or other institution draws on itself)”.

Paragraph 437D(3)(b)

Omit “bank’s”, substitute “ADI’s”.

Subparagraph 437D(3)(c)(i)

Omit “bank”, substitute “ADI”.

Paragraph 461(j)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority”.

Paragraph 462(2)(h)

Repeal the paragraph, substitute:
(h)
the Australian Prudential Regulation Authority.

Subsection 462(3)

Omit “the Insurance and Superannuation Commissioner”, substitute “the Australian Prudential Regulation Authority”.

Subsection 870(3)

Omit “or bank cheque”, substitute “, or by cheque that a bank or other institution draws on itself,”.

Subsection 1015A(2)

Repeal the subsection.

Paragraph 1083(1)(b)

Omit “the bank”, substitute “it”.

Paragraph 1083(1)(c)

Omit “the bank”, substitute “it”.

Subsection 1083(3)

Omit “the bank”, substitute “the ADI”.

Subsection 1083A(2)

Repeal the subsection.

[Minister’s second reading speech made in—

Senate on 14 May 1998

House of Representatives on 23 June 1998]

(76/98)