Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Act 2018 (5 of 2018)
Schedule 2 Examination powers
Banking Act 1959
9 After section 61
Insert:
61A Investigator may require production of books etc.
(1) If an investigator reasonably believes that a person has custody or control of any books, accounts or documents relevant to the investigator's investigation, the investigator may, by written notice given to the person, require the person to produce any or all of the books, accounts or documents to the investigator.
(2) A person commits an offence if he or she refuses or fails to comply with a requirement under this section.
Penalty: 30 penalty units.
61B Concealing books, accounts or documents relevant to investigation
A person commits an offence if:
(a) the person knows that an investigator is investigating, or is about to investigate, a matter; and
(b) the person:
(i) conceals, destroys, mutilates or alters a book, account or document relating to the matter; or
(ii) if a book, account or document relating to the matter is in a particular State or Territory - takes or sends the book, account or document out of that State or Territory or out of Australia; and
(c) the person intended that the investigation or proposed investigation would be delayed or obstructed as a result of that conduct.
Penalty: Imprisonment for 2 years.
Division 2 - Examinations
61C Notice requiring appearance for examination
If an investigator reasonably believes or suspects that a person (the examinee ) can give information relevant to the investigator's investigation, the investigator may, by written notice given to the examinee, require the examinee:
(a) to give the investigator all reasonable assistance in connection with the investigation; and
(b) to appear before the investigator for examination.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 61G).
61D Conduct of examinations
(1) The investigator may examine the examinee on oath or affirmation and may, for that purpose:
(a) require the examinee to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to the examinee.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 61G).
(2) The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.
(3) The investigator may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that the investigator is investigating, or is to investigate.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 61G).
(4) The examiner may make an audio, or audio-visual, recording of all or any part of the examination.
61E Who may be present at examinations
(1) The examination must take place in private.
(2) The following people may be present at the examination:
(a) the investigator;
(b) the examinee;
(c) the examinee's lawyer;
(d) an APRA staff member approved by APRA to be present;
(e) a person directed by the investigator to be present.
(3) A person commits an offence if the person:
(a) is present at an examination; and
(b) is not a person mentioned in subsection (2).
Penalty: 30 penalty units.
(4) The examinee's lawyer may, at such times during the examination as the investigator determines, address the investigator and examine the examinee about matters about which the investigator has examined the examinee.
(5) The investigator may require a person to stop addressing the investigator or examining the examinee if, in the investigator's opinion, the person is trying to obstruct the examination by exercising rights under subsection (4).
Note: Failure to comply with a requirement made under this subsection is an offence (see section 61G).
61F Record of examination
Written record of statements
(1) The investigator must cause a written record (including a transcript of an audio, or audio-visual, recording) to be made of statements made at the examination.
(2) The investigator may require the examinee to read the written record, or to have it read to him or her, and may require him or her to sign it.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 61G).
Copies of record
(3) The investigator must give a copy of a written record to the examinee, without charge, but subject to such conditions (if any) as the investigator imposes.
Use of copies
(4) If the investigator gives a copy of a written record to a person under subsection (3) subject to conditions, the person, or any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.
Penalty: Imprisonment for 6 months.
61G Offences
A person commits an offence if he or she refuses or fails to comply with a requirement under this Division.
Penalty: 30 penalty units.
Division 3 - Evidentiary use of certain material
61H Statements made at an examination - proceedings against examinee
Admissibility of statements made at examination
(1) Subject to this section, a statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding.
Self-incrimination exception
(2) The statement is not admissible if the statement is not admissible in evidence against the person under section 52F.
Irrelevant statement exception
(3) The statement is not admissible if it is not relevant to the proceeding and the person objects to the admission of evidence of the statement.
Related statement exception
(4) The statement (the subject statement ) is not admissible if:
(a) it is qualified or explained by some other statement made at the examination; and
(b) evidence of the other statement is not tendered in the proceeding; and
(c) the person objects to the admission of evidence of the subject statement.
Legal professional privilege exception
(5) The statement is not admissible if:
(a) it discloses matter in respect of which the person could claim legal professional privilege in the proceeding if subsection (1) did not apply in relation to the statement; and
(b) the person objects to the admission of evidence of the statement.
Joint proceedings
(6) Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.
Record is prima facie evidence
(7) If a written record of an examination of a person is signed by the person under subsection 61F(2), or is authenticated as mentioned in subsection 290(7) of the Superannuation Industry (Supervision) Act 1993, the record is, in a proceeding, prima facie evidence of the statements it records.
Admissibility of other evidence
(8) This Division does not limit or affect the admissibility in the proceedings of other evidence of statements made at the examination.
61J Statements made at an examination - other proceedings
Admissibility of absent witness evidence
(1) If direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceedings as evidence of that matter in accordance with subsection (2).
Requirement for admissibility
(2) The statement is admissible:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness;
(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or
(b) if it does not so appear to the court or tribunal - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.
61K Weight of evidence under section 61J
(1) If evidence of a statement made by a person at an examination of the person is admitted under section 61J in a proceeding, in deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:
(a) the length of period between the statement and the matter to which the statement relates; and
(b) any reason the person may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about the accuracy of the statement.
(2) If the person is not called as a witness in the proceeding:
(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.
(3) However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.
61L Objection to admission of statements made at examination
Notice of intention to apply to admit evidence and statements
(1) A party (the adducing party ) to proceedings may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.
Notice to set out etc. statements
(2) A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.
Notice of objection
(3) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of objection.
Extension of objection period
(4) The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.
Notice etc. to be given to court or tribunal
(5) On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:
(a) the notice under subsection (1) and any writing that subsection (2) requires to accompany that notice; and
(b) the notice under subsection (3).
Action by court or tribunal
(6) If subsection (5) is complied with, the court or tribunal may either:
(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.
Right to object to admission of statement
(7) If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceedings, unless:
(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or
(b) the court or tribunal gives the other party leave to object to the statement being so admitted.
61M Copies of, or extracts from, certain books, accounts and documents
(1) A copy of, or an extract from, a book, account or document to which subsection 13(1), 13B(1), 61(2), 61A(1) or 62(1) applies, is admissible in evidence in a proceeding as if the copy was the original book, account or document or the extract were the relevant part of original book, account or document.
(2) A copy of, or an extract from, a book, account or document is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, account or document, or of the relevant part of the book, account or document.
(3) For the purposes of subsection (2), a person who has compared:
(a) a copy of a book, account or document with the book, account or document; or
(b) an extract from a book, account or document, with the relevant part of the book, account or document;
may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book, account or document, or relevant part of the book, account or document.
61N Report under section 61
Subject to section 61P, if a copy of a report under subsection 61(1) purports to be certified by APRA as a true copy of such a report, the copy is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of any facts or matters that the report states an investigator to have found to exist.
61P Exceptions to admissibility of report
(1) If a party to a proceeding tenders a copy of a report as evidence against another party, the copy is not admissible under section 61N in the proceeding as evidence against the other party unless the court or tribunal is satisfied that:
(a) a copy of the report has been given to the other party; and
(b) the other party, and the other party's lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party's case.
(2) Before or after the copy tendered in evidence is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:
(a) was concerned in preparing the report or making a finding about a fact or matter that the report states the investigator to have found to exist; or
(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, account or document, on the basis of which, or on the basis of matters including which, such a finding was made.
(3) The court or tribunal must grant an application made under subsection (2) unless it considers that, in all the circumstances, it is not appropriate to do so.
(4) The court or tribunal must refuse to admit the copy, or must treat the copy as not having been admitted, if:
(a) the court or tribunal grants the application or applications made under subsection (2); and
(b) one or more persons to whom the application or any of the applications relates:
(i) are unavailable; or
(ii) do not attend to be cross-examined in relation to the report; and
(c) the court or tribunal is of the opinion that to admit the copy under section 61N in the proceeding as evidence against the other party without the other party having the opportunity to cross-examine the other person or persons would unfairly prejudice the other party.
61Q Material otherwise admissible
Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.
Division 4 - Information