Banking Act 1959

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

Division 3 - Governance  

SECTION 21   Court power of disqualification  

(1)  
On application by APRA, the Federal Court of Australia may, by order, disqualify a person from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied that:


(a) the person is not a fit and proper person to be or act as such a person; and


(b) the disqualification is justified.

(2)  
For the purposes of subsection (1), the Court may disqualify a person from being or acting as one or more of the following:


(a) a director or senior manager of:


(i) a particular ADI; or

(ii) a class of ADIs; or

(iii) any ADI;
(other than a particular foreign ADI, a class of foreign ADIs or any foreign ADI);


(b) a senior manager of the Australian operations of:


(i) a particular foreign ADI; or

(ii) a class of foreign ADIs; or

(iii) any foreign ADI;


(c) a director or senior manager of:


(i) a particular authorised NOHC; or

(ii) a class of authorised NOHCs; or

(iii) any authorised NOHC;


(d) an auditor of:


(i) a particular ADI or a particular authorised NOHC; or

(ii) a class of ADIs or a class of authorised NOHCs; or

(iii) any ADI or any authorised NOHC.

(3)  
In deciding whether it is satisfied as mentioned in paragraph (1)(a), the Court may take into account:


(a) any matters specified in the regulations for the purposes of this paragraph; and


(b) any criteria for fitness and propriety set out in the prudential standards; and


(c) any other matters the Court considers relevant.

(4)  
In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:


(a) if the application is for the person to be disqualified from being or acting as a director or senior manager - the person's conduct in relation to the management, business or property of any corporation; and


(b) if the application is for the person to be disqualified from being or acting as an auditor - the person's conduct in relation to the functions or duties of the person as required under this Act and the prudential standards; and


(c) in any case - any other matters the Court considers relevant.

(5)  
As soon as practicable after the Court disqualifies a person under this section, APRA must cause particulars of the disqualification:


(a) to be given:


(i) if the person is, or is acting as, a person referred to in subparagraph (2)(a)(i) - to the ADI concerned; or

(ii) if the person is, or is acting as, a person referred to in subparagraph (2)(b)(i) - to the foreign ADI concerned; or

(iii) if the person is, or is acting as, a person referred to in subparagraph (2)(c)(i) - to the authorised NOHC concerned; or

(iv) if the person is, or is acting as, a person referred to in subparagraph (2)(d)(i) - to the ADI or authorised NOHC concerned; and


(b) to be published in the Gazette .




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