Bank Mergers Act 1997

The central concept is "merger", defined in section 3 as "any transaction by which a bank acquires another bank, either by the transfer of the whole or part of the undertaking of the other bank, or by becoming the successor in law of the other bank, or by other means". This is deliberately broad, covering asset transfers, successions in law, and any other acquisition method. A "bank" is defined by reference to the Commonwealth Banking Act 1959 (an ADI) or a bank carrying on banking business on behalf of a State government, and includes subsidiaries of either. This captures both private sector ADIs and government‑owned banks. The Act distinguishes between "banks concerned" (the merging entities) and "other bank" (the target). Part 2 deals with regulations that can effect a merger. Section 7 specifies the matters regulations may cover: transfer and vesting of undertakings, succession in law (including the successor being "for all purposes a continuation of and the same legal entity as the other bank"), liquidation or dissolution of a merged bank, obligations of the banks, relationships with customers and depositors, and business name use. Section 8 addresses the effect of the merger on contracts, deeds, leases, securities, employment rights, legal proceedings, and liabilities. Section 9 allows regulations to provide for payment or exemption from duties, taxes, charges, rates or imposts. Section 10 covers miscellaneous matters such as construction of references, service of documents, asset/liability transfer and recognition, identification of assets, transfer of charges, evidence, and savings/transitional provisions. Section 12 is a key provision: regulations may override any other Act relating to duties, taxes, charges, registration of ownership of assets or liabilities. This gives the regulations paramountcy over inconsistent State legislation. Part 3 introduces the concept of a "declared law": a law of another State or Territory relating to bank mergers that the Governor may by order published in the Gazette declare to be a law to which Part 3 applies. Once declared, that law applies in WA as if it were a WA law, subject to exclusions, modifications or additions specified in the order. However, section 17(4) excludes provisions relating to government guarantees or exemption from duties/taxes unless the order expressly includes them. The declared law continues to apply even if amended or repealed in its home jurisdiction (unless the order provides otherwise). Part 4 links to the Taxing Act: section 18 makes the bank(s) liable for any amount required to be paid under section 3(3) of that Act, with joint and several liability for multiple banks unless the Treasurer determines otherwise. The Treasurer must issue a certificate when satisfied the requirement has been complied with (section 19), and that certificate is conclusive evidence of the matters certified (section 20). Part 5 (section 21) is the expiry provision, cutting off the power to make regulations or orders after 30 June 1997.

The Act directly affects banks that are parties to a merger effected under its provisions. "Bank" is defined broadly to include ADIs under the Commonwealth Banking Act 1959 (i.e. most trading banks, building societies, credit unions that are ADIs) and any bank carrying on banking business on behalf of a State government (such as a government‑owned bank), plus subsidiaries of either. The Act could therefore affect private sector banks, government‑owned banks, and their corporate subsidiaries. For banks involved in a merger, the Act imposes obligations (section 7(1)(d)) and alters their legal relationships with customers, depositors, employees, and counterparties. Section 7(1)(e) specifically addresses the relationship between a bank and customers or depositors of another bank concerned, which would affect those customers indirectly. Employees of merging banks have their employment, superannuation and related rights affected via section 8(d) regulations. Creditors and counterparties under existing contracts, deeds, leases, licences and other instruments are affected because section 8(a) regulations can alter the effect of the merger on those instruments. Persons holding securities of a merging bank are affected via section 8(c). The Registrar of Titles and other authorities are required to recognise asset or liability transfers (section 10(c)). The Treasurer of WA is involved in certifying compliance under the Taxing Act (sections 18‑20). The Minister responsible for the Corporations (Western Australia) Act 1990 must approve any regulations made under section 7(1)(c) regarding liquidation or dissolution of a merging bank. The Act binds the Crown (section 4), so it applies to government instrumentalities that are banks. Because the regulation‑making power has expired (section 21), no new persons or entities can be affected by new regulations. However, any regulations or orders made before 30 June 1997 continue to affect the parties to those mergers and their stakeholders. In practical terms, the Act is now largely of historical significance unless a pre‑1997 instrument remains operative. The Act also has potential extra‑territorial effect: regulations apply outside WA to the full extent of the State's legislative power (section 13), potentially affecting persons or assets outside the State.

The Act does not create duties or rights directly; it empowers the Governor to create them via regulations or orders. However, the Act imposes a few specific duties. Section 18(1) provides that where an amount is required to be paid under section 3(3) of the Taxing Act, the bank or banks concerned are liable for payment. Where two or more banks are concerned, they are jointly and severally liable unless the Treasurer determines otherwise (section 18(2)). This duty is triggered only if a merger proceeds under the Act and the Treasurer has made a requirement under the Taxing Act. The Treasurer has a duty under section 19(1) to give a certificate when satisfied a Taxing Act requirement has been complied with, and under section 19(2) to give a certificate when satisfied an amount required to be paid on or after a specified day has been paid. This certificate then becomes conclusive evidence (section 20) for all purposes and in all courts, tribunals and proceedings. The right to receive such a certificate belongs to the bank(s) that have complied. Section 11 imposes a prerequisite on the making of regulations: if a requirement has been made under section 3(3) of the Taxing Act, regulations cannot be made until that requirement has been complied with and the Treasurer has given a certificate to that effect. Section 16 imposes the same prerequisite on an order under section 15(1). This means a bank cannot have a merger effected by regulation or order unless it has first dealt with the Taxing Act requirement and obtained a certificate. The Act also creates rights for banks to use regulations and orders to achieve a merger that might otherwise be impeded by other legislation. Section 12 allows regulations to override provisions of any other Act relating to duties, taxes, charges, registration of ownership of assets or liabilities. This gives banks a statutory override right, but only to the extent the regulations are expressed to have effect despite those other Acts. For customers and employees, the Act does not create direct rights, but regulations may affect their existing rights under contracts, employment, superannuation, and legal proceedings (section 8). The power to modify those rights is substantial, and the Act provides no explicit minimum protection or compensation requirement. The right to be heard or to object is not provided in the Act; the process is purely executive.

The Act itself does not create any penalties or enforcement mechanisms. It contains no offence provisions, no civil penalty provisions, and no power to impose fines or imprisonment. Enforcement is not addressed within the Act. The only potential enforcement consequence relates to non‑payment of amounts required under the Taxing Act. Section 18 makes banks liable for such amounts, and joint and several liability applies. However, the Act does not specify what happens if a bank fails to pay; it only requires the Treasurer to give a certificate when payment has been made (section 19(2)). The Taxing Act presumably contains its own enforcement provisions, but those are not within the scope of the Bank Mergers Act 1997. The Act's focus is on enabling mergers, not on punishing non‑compliance. If a merger proceeds under regulations or orders, the regulations themselves could theoretically impose penalties for non‑compliance with specific requirements (e.g. failure to transfer assets, failure to provide information). But the Act does not set a maximum penalty for such regulations; it merely provides a general power to make regulations (section 6) without limiting the content beyond what is specified in Part 2. As a matter of delegated legislation, any penalty imposed by regulation would need to be within the scope of the enabling power, and the Interpretation Act 1984 would prescribe limits (e.g. penalty units). However, no such regulations are currently known to exist given the expiry of the power. For any regulations still in force from the brief window before 30 June 1997, the penalties would be as specified in those regulations. The Act's enforcement is primarily administrative: the Treasurer's certificate is conclusive evidence (section 20), so once given, it cannot be challenged in court on its substance. This effectively bars judicial review of the factual basis of the certificate. That is a strong enforcement mechanism against any challenge to the merger's validity on Taxing Act compliance grounds. Overall, the Act relies on the ordinary enforcement of delegated legislation and the constitutional mechanisms of the State rather than creating its own enforcement apparatus.

Section 12 is the most significant interaction provision: regulations made under Part 2 may be expressed to have effect despite any other Act relating to the payment of duties, taxes, charges, rates or imposts, or the registration of ownership of assets or liabilities. This gives regulations paramountcy over inconsistent State legislation in those areas. Examples include the Duties Act, the Taxation Administration Act, the Transfer of Land Act (for property registrations), and the Corporations (Western Australia) Act (for registration of charges). The regulations can effectively override these Acts to facilitate the merger without attracting stamp duty, land tax, or registration fees that would otherwise apply. This interaction is explicit: the regulations "have effect accordingly" despite the other Act. Section 12 does not override Commonwealth laws; it only applies to "any other Act", meaning State Acts. Section 7(2) provides a specific interaction with the Corporations (Western Australia) Act 1990: regulations providing for liquidation or dissolution of a merging bank may only be made with the approval of the Minister responsible for that Act. This ensures the relevant corporate regulatory minister has a say in the winding‑up process. Section 4 binds the Crown, so the Act applies to government‑owned banks and instruments of the State, overriding any Crown immunity that might otherwise apply. Section 13 provides extra‑territorial application to the full extent of the State's legislative power, which interacts with the laws of other jurisdictions. If a WA regulation purports to vest assets located in another Australian State or overseas, it relies on the Commonwealth Constitution's full faith and credit provisions and the willingness of other jurisdictions to recognise WA laws. Section 17 applies a declared law of another State or Territory as if it were a law of WA, but subject to modifications. This imports foreign legislation into WA's legal system, creating an interaction where WA law adopts another jurisdiction's provisions. The declared law is not affected by its amendment or repeal in the home jurisdiction (section 17(3)), except as specified in the order. This means WA law becomes static while the original law may evolve elsewhere. Section 17(4) expressly excludes provisions relating to government guarantees or exemption from duties/taxes unless the order includes them, protecting WA's financial sovereignty. Part 4 interacts with the Bank Mergers (Taxing) Act 1997, making the Act a supplementary piece to that taxing Act. The Taxing Act is defined in section 3 and is separate legislation. The Bank Mergers Act provides the procedural machinery (certificates, liability) for the Taxing Act's requirements. Section 21 interaction with time: no further regulations or orders can be made after 30 June 1997, but any existing ones remain in force unless revoked (which would require a further regulation or order, which is now impossible). So the Act is effectively static but not necessarily entirely spent if pre‑1997 instruments exist.

The compilation table in the Act shows four stages. The Bank Mergers Act 1997 (Act No. 8 of 1997) received Royal Assent on 23 June 1997 and commenced the same day. The first amendment was by the Acts Amendment and Repeal (Financial Sector Reform) Act 1999 (No. 26 of 1999), section 61, which commenced on 1 July 1999. This amendment likely updated references from the old banking regulatory framework to the new financial sector reforms following the Wallis Inquiry and the establishment of APRA and ASIC. The exact change is not specified in the source, but section 61 of that amending Act presumably altered the definition of "bank" to refer to the updated Commonwealth Banking Act 1959 definition or to replace outdated references. The second amendment was by the Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001), section 220, which commenced on 15 July 2001. This amended the definition of "bank" in section 3 to replace a reference to the Corporations Law of Western Australia with the Corporations Act 2001 (Commonwealth), reflecting the transition to the national corporations scheme in 2001. Specifically, the phrase "within the meaning of the Corporations Act 2001 of the Commonwealth" was substituted for an earlier reference. The third amendment was by the Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009), section 23, which commenced on 22 May 2009. This was a miscellaneous amendments Act, and section 23 likely made a minor textual amendment, perhaps updating a cross‑reference or repealing a spent provision. The compilation table notes that Reprint 1 incorporates the first two amendments (up to 2004). The original Act's section 3 definition of "bank" has been amended three times, as indicated in the marginal note. No other sections appear to have been amended. The Act's short title and commencement provisions (sections 1 and 2) have not been amended. The expiry provision (section 21) has remained unchanged since enactment. The Act has not been repealed, and it remains on the statute books as a spent but not repealed enactment. There is no indication of any sunset clause beyond the expiry of powers; the Act itself continues in force.

No litigation history is provided in the source text. The Act itself contains no references to court cases, no definitions referencing judicial interpretations, and no savings for legal proceedings that might give clues to past litigation. Given the Act's very short period of operation (seven days of regulation‑making power) and the fact that it was designed for a specific purpose likely involving a single merger or a small number of pre‑arranged mergers, there may never have been any litigation arising from it. If regulations or orders were made, they could theoretically have been challenged on grounds such as ultra vires (going beyond the Act's power), procedural failure (failure to comply with the Taxing Act prerequisite), or constitutional validity (extra‑territorial application, overriding other Acts). However, without any reported cases in the source, we cannot confirm any litigation. The Act's conclusive evidence provision in section 20 would have made it difficult to challenge the Treasurer's certificate on its merits; any challenge would have to be on administrative law grounds such as jurisdictional error or failure to consider a mandatory relevant consideration. But again, the source does not indicate any such cases. Researchers would need to consult the Australian legal databases (e.g., AustLII, Westlaw, LexisNexis) to check for any cases citing the Bank Mergers Act 1997. Given the Act's narrow scope and expiry, it is likely that litigation, if any, would be minimal. The Act's interaction with the Corporations Act and property registration laws might have led to disputes about the validity of asset transfers, but again no evidence is presented in the source. The deep dive must be grounded in the source, so we must state that the source does not mention any litigation history.

The most significant trap is section 21: no regulation or order can be made under this Act after 30 June 1997. Practitioners dealing with a current bank merger cannot rely on this Act to facilitate a merger; only regulations or orders made before that date (if any) remain operative. Anyone assuming the Act provides a live mechanism for bank mergers today will be misled. A second trap is the prerequisite in sections 11 and 16: if a requirement has been made under section 3(3) of the Taxing Act, neither regulations nor orders can be made until that requirement is complied with and the Treasurer gives a certificate. This means a merger cannot proceed under this Act unless the bank(s) first satisfy the Taxing Act's financial requirement. The certificate is then conclusive evidence (section 20), which precludes any later argument that the requirement was not actually satisfied. This conclusiveness could be a trap for third parties who wish to challenge the merger's validity on grounds of non‑payment; the certificate is effectively immune from collateral attack. A third trap is extra‑territorial application (section 13). Regulations apply outside WA to the full extent of the State's legislative power. This could purport to affect assets located in other Australian states or overseas, but the practical enforceability of such provisions is uncertain. A bank relying on a regulation to vest assets in another state might find the regulation not recognised in that state's courts. The Act does not provide for reciprocal recognition, and reliance on section 13 alone may be risky. A fourth trap is the ability of regulations to override other Acts (section 12). This power is limited to duties, taxes, charges, rates, imposts, and registration of ownership/assets. It does not extend to overriding, for example, employment law, contract law, or property law beyond registration. A practitioner might assume complete override, but the section is specific. Also, the override applies only if regulations are "expressed to have effect despite" the other Act. If the drafting is not explicit, the regulation may not override. A fifth trap is the treatment of declared laws under Part 3. Once an order declares a law of another State or Territory, that law applies in WA even if it is later amended or repealed in its home jurisdiction (section 17(3)). This can create a static, orphaned law that no longer exists in its original form. Anyone relying on the current version of the other jurisdiction's law may be caught by the frozen version. Also, section 17(4) excludes government guarantees and duty exemptions from the declared law unless expressly included. A bank assuming that a declared law's full benefits apply in WA may be unpleasantly surprised. A sixth trap: the Act binds the Crown (section 4). Government‑owned banks are not immune from the Act's operation, and regulations may affect them. However, the Crown's involvement may also create complexities regarding prerogatives and immunities that the Act does not address. Finally, the Act's interaction with the Corporations Act 2001 (Commonwealth) is limited. The definition of "bank" includes subsidiaries of ADIs, but the Act does not purport to override Commonwealth law; section 12 only overrides other State Acts. A merger effected under WA regulations may still need to comply with the Corporations Act for matters such as shareholder approval, compulsory acquisition, or ASIC notifications. The Act does not grant exemption from Commonwealth law.

Since the regulation‑making and order‑making powers expired on 30 June 1997, virtually no new compliance obligations arise under this Act today. Compliance is only relevant if a regulation or order was made within the seven‑day window and remains in force. The first step is to ascertain whether any such instrument exists. A search of the Western Australian legislation database for subordinate legislation under the Bank Mergers Act 1997 would be necessary. If no such instrument exists, the Act imposes no current compliance duties beyond the theoretical possibility that a merger was effected under it and continues to have legal effect. If a regulation or order is identified, the parties to that merger must comply with its terms. This may include obligations under section 7(1)(d) regarding the merger and related transactions, including any duties to transfer assets, notify customers, or record changes. The regulation may require certain steps to be taken by specified dates, filings with the Registrar of Titles or other authorities (section 10(c)), and compliance with any savings or transitional provisions (section 10(g)). For any subsisting merger, the parties should also ensure that any amount required under section 3(3) of the Taxing Act has been paid and that the Treasurer's certificate was obtained. The certificate is conclusive evidence (section 20), so if it exists, it should be retained as proof of compliance. The bank should also ensure that the merger did not require ministerial approval that was not obtained (e.g., the Minister responsible for the Corporations (Western Australia) Act 1990 must have approved any regulations providing for liquidation or dissolution - section 7(2)). If the merger was effected via a declared law order (Part 3), compliance requires adherence to that declared law as applied in WA with the modifications specified in the order. The bank should obtain a copy of the order and any amending orders, and comply with the declared law as if it were a WA enactment. However, note that provisions relating to government guarantees or duty exemptions are not part of the declared law unless expressly included (section 17(4)). A bank should not assume those benefits apply. For any ongoing legal proceedings, contractual obligations, or employee issues, the regulations under sections 8(a), (d), (e) will govern how the merger affects those matters. Banks should have systems in place to track the specific treatment prescribed. General compliance advice: maintain records of all regulations, orders, certificates, and approval documents. Ensure that any asset or liability transfers have been properly registered where required, since the regulations override only registration requirements relating to duties, taxes, and imposts, but not necessarily other registration formalities under property or company law. If in doubt, seek legal advice on the continued validity and effect of any instrument made under this Act, given its age and the expiry of powers.