Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Act 2018 (5 of 2018)

Schedule 2   Examination powers

Banking Act 1959

10   After section 62

Insert:

Division 5 - Miscellaneous

62AA Legal professional privilege

(1) This section applies if:

(a) under this Act, a person requires a lawyer;

(i) to give information; or

(ii) to produce a book, account or document; and

(b) either:

(i) giving the information would involve disclosing; or

(ii) the book, account or document contains;

a privileged communication made by, or on behalf of or to the lawyer in his or her capacity as a lawyer.

(2) The lawyer is entitled to refuse to comply with the requirement unless:

(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under administration or is being would up - the administrator or the liquidator of the body; or

(b) otherwise - the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement.

(3) If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

(a) if the lawyer knows the name of the person to whom, or by or on behalf of whom, the communication was made - that name and address; and

(b) if subparagraph (1)(a)(i) applies and the communication was made in writing - sufficient particulars to identify the document containing the communication; and

(c) if subparagraph (1)(a)(ii) applies - sufficient particulars to identify the book, account or document, or the part of the book, account or document, containing the communication.

(4) A person commits an offence if he or she refuses or fails to comply with a requirement under this section.

Penalty: 30 penalty units.

62AB Powers of Court relating to non-compliance with this Act

(1) If APRA or an investigator is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Act, APRA or the investigator may by writing certify the failure to the Federal Court of Australia.

(2) If APRA or the investigator certifies the failure under subsection (2), the Federal Court of Australia may inquire into the case and may order the person to comply with the requirement as specified in the order.