Version No. 002
Bank of South Australia and Advance Bank
Act 1996
No. 33 of 1996
Version as at 21 December 2007
TABLE OF PROVISIONS
Section Page
1 Purpose 1
2 Commencement 1
3 Definitions 2
4 Extension of operation of South Australian Act 2
5 Action by Registrar of Titles or Registrar-General 3
SCHEDULE 1 4
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ENDNOTES 15
General Information 15
Table of Amendments 16
Explanatory Details 17
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Version No. 002
Bank of South Australia and Advance Bank
Act 1996
No. 33 of 1996
Version as at 21 December 2007
Preamble
(1) Bank of South Australia Ltd is a company
incorporated in South Australia.
(2) Advance Bank of Australia Ltd is a company
incorporated in New South Wales.
(3) The companies have agreed to merge the
banking businesses carried on by them.
(4) It is expedient to enact legislation to provide
for the vesting of the banking business of
Bank of South Australia Ltd in Advance
Bank of Australia Ltd.
The Parliament of Victoria therefore enacts as follows:
1 Purpose
The purpose of this Act is to extend the operation
of the Bank Merger (BankSA and Advance Bank)
Act 1996 of South Australia dealing with the
merger of the Bank of South Australia and
Advance Bank.
2 Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
Assent.
(2) The remaining provisions of this Act come into
operation on a day to be proclaimed.
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3 Definitions
In this Act—
South Australian Act means the Bank Merger
(BankSA and Advance Bank) Act 1996 of
South Australia, the text of which is set out
in Schedule 1 to this Act.
4 Extension of operation of South Australian Act
(1) The operation of the South Australian Act is
extended so that it applies in Victoria as if it were
an Act of the Parliament of Victoria.
(2) However, in its extended application, the South
Australian Act is to be read and construed subject
to the following modifications and exclusions—
(a) section 2 (Commencement) does not apply
as a law of Victoria; and
(b) references to South Australia or the State are
to be read as references to Victoria; and
(c) section 10 is to be construed subject to
section 5 of this Act and the reference in
section 10 to the Registrar-General is to be
read as a reference to the Registrar-General
within the meaning of the law of Victoria;
and
(d) Part 3 (Government Guarantee) does not
apply as a law of Victoria; and
(e) the reference to an Act in section 17(2) is to
be read as a reference to an Act of
Parliament of Victoria; and
(f) section 19 is to be construed as if the
reference to the Real Property Act 1886 of
South Australia were omitted; and
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(g) the reference in section 21(2) to the Business
Names Act 1963 of South Australia is to be
read as a reference to the Business Names
Act 1962 of Victoria; and
(h) section 22 (Regulations and proclamations)
is excluded and references to a regulation or
a proclamation are to be read as references to
a regulation or proclamation made by the
Governor of South Australia under the South
Australian Act.
(3) In its extended application, the interpretation of
the South Australian Act is (subject to this
section) to be governed by the Acts Interpretation
Act 1915 of South Australia.
5 Action by Registrar of Titles or Registrar-General
(1) On being requested to do so and on delivery of
any relevant instrument or document, the
Registrar of Titles must make any recordings in
the Register that are necessary because of the
operation of this Act.
(2) On being requested to do so and on production of
any relevant instrument or document, the
Registrar-General must make all entries on
records on enrolment of any Crown grant and on
any memorial relating to any land concerned that
are necessary because of the operation of this Act.
Section 1 - Bank of South Australia and Advance Bank Act 1996 - Bank of South Australia and Advance Bank Act 1996 | Zoe
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SCHEDULE 1
Bank Merger (BankSA and Advance Bank) Act 1996 of South
Australia
No. 41 of 1996
An Act to provide for the merger of the Bank of South Australia with
Advance Bank; and for other purposes.
[Assented to 20 June 1996]
The Parliament of South Australia enacts as follows:
PART 1
PRELIMINARY
Short title
This Act may be cited as the Bank Merger (BankSA and
Advance Bank) Act 1996.
Commencement
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) The provision for automatic commencement of statutory
provisions 2 years after assent does not apply to this Act.
Interpretation
In this Act, unless the contrary intention appears—
"ABAL" means Advance Bank of Australia Limited;
"ABAL subsidiary" means a body corporate that is a subsidiary of
ABAL for the purposes of section 46 of the Corporations Law;
"appointed day" means a day fixed by proclamation as the
appointed day for the purposes of this Act;
"asset" includes—
(a) a present, contingent or future legal or equitable estate
or interest in real or personal property;
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(b) a present, contingent or future right, power or
privilege or immunity (including a present or future
cause of action in favour of BSAL);
(c) an asset (as defined above) held in a fiduciary
capacity;
"BSAL" means the Bank of South Australia Limited;
"cause of action" includes any right to bring, defend or participate
in legal proceedings;
"CEO" of ABAL means the chief executive officer of ABAL or a
delegate of the chief executive officer;
"document" includes a disc, tape or other medium in which
information is stored;
"employee" includes officer;
"excluded asset" means—
(a) an asset classified as an excluded asset in the
Schedule; or
(b) an asset related to an excluded liability;
"excluded liability" means—
(a) a liability classified as an excluded liability in the
Schedule; or
(b) a liability related to an excluded asset;
"guarantee" includes an indemnity;
"instrument" includes—
(a) a legislative instrument;
(b) a judgment, order or process of a court;
(c) any other document;
"legal proceedings" includes an arbitration or an administrative
proceeding;
"land" includes an estate or interest in land, or an interest in
respect of land;
"liability" includes—
(a) a present, future or contingent liability (arising at law
or in equity);
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(b) a duty or non-pecuniary obligation;
(c) in relation to BSAL — a present or future cause of
action against BSAL;
"security" means—
(a) a mortgage or charge; or
(b) a guarantee; or
(c) another instrument acknowledging, evidencing,
recording, imposing or securing a liability for the
payment of money or the discharge of a liability;
"transferred asset" means an asset transferred to ABAL under
this Act;
"transferred employee" means an employee to BSAL who
becomes an employee of the ABAL or an ABAL subsidiary under
this Act;
"transferred liability" means a liability transferred to ABAL
under this Act;
"undertaking" of BSAL means—
(a) all assets of BSAL except excluded assets; and
(b) all liabilities of BSAL except excluded liabilities;
Act to bind the Crown
4. This Act binds the Crown not only in right of the State but (so
far as the State's legislative power extends) in all its other capacities.
Extra-territorial application
5. (1) This Act applies both within and outside the State.
(2) This Act applies outside the State to the full extent of the
extra-territorial legislative power of the State.
PART 2
VESTING OF BSAL's UNDERTAKING IN ABAL
Vesting of undertaking
6. (1) On the appointed day, BSAL's undertaking is transferred to,
and vested in, ABAL.
(2) The transfer of assets and liabilities under this section has
effect despite the provisions of any other law or instrument.
(3) The transfer of a liability under this section discharges BSAL
from the liability.
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Conditions of transfer
7. (1) The CEO may, by order in writing, fix terms on which
BSAL's undertaking is transferred.
(2) The terms of transfer may create, and define the extent of,
rights and liabilities.
Transitional provisions
8. The following transitional provisions apply—
(a) for the purpose of construing an instrument or an oral
agreement, understanding or undertaking so far as it applies
to the transferred asset or liability—
(i) a reference to BSAL is to be construed as a reference
to ABAL; and
(ii) a reference to a branch, or agency of BSAL is to be
construed as a reference to the corresponding branch,
office or agency of ABAL or a branch, office or
agency designated by the CEO as the
corresponding branch, office or agency; and
(iii) a reference to an officer of BSAL is to be construed as
a reference to the corresponding officer of ABAL or
an officer designated by the CEO as the corresponding
officer; and
(b) the relationship of banker and customer existing between
BSAL and a customer in relation to a transferred asset or
transferred liability immediately before the transfer took
effect continues between ABAL and the customer after the
transfer takes effect and gives rise to the same rights
(including rights of set-off) and the same liabilities as
would have arisen if there had been no transfer; and
(c) an instruction, order, mandate, authority or notice given to
BSAL before the transfer took effect is, so far as it is
referable to a transferred asset or transferred liability, taken to
have been given to ABAL; and
(d) if a security held by BSAL is referable to a transferred asset
or transferred liability, then, so far as it is referable to
thetransferred asset or transferred liability—
(i) ABAL becomes entitled or subject to rights, priorities
and liabilities in relation to the security that BSAL
would have had if there had been no transfer; and
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(ii) the security is available to ABAL as security for the
discharge of transferred liabilities including, where the
security extends to future liabilities, liabilities incurred
after the transfer; and
(e) ABAL is entitled to possession of all documents to which
BSAL was entitled immediately before the transfer took
effect that are entirely referable to a transferred asset or
transferred liability and is entitled to access to, and copies of,
all documents that are referable to both a transferred asset or
transferred liability and another asset or liability that is not
transferred; and
(f) a negotiable instrument or order for payment drawn by or on,
or accepted or endorsed by BSAL, is (if BSAL's liability
under the instrument or order is a transferred liability)
payable by ABAL in the same way as if it had been drawn by
or on, or accepted or endorsed by, ABAL; and
(g) a cheque drawn on an account transferred to ABAL is,
although expressed to be drawn on the account formerly as
BSAL, taken to have been drawn on the account at ABAL;
and
(h) if an account in respect of which a credit or debit card was
issued by BSAL is transferred, the card is taken to have been
issued by ABAL and to be the property of ABAL; and
(i) if a transferred asset consists of rights to the possession or use
of property under a lease or other agreement, ABAL may
exercise those rights without exposing BSAL to liability for
parting with possession of the property, or permitting the
possession or use of the property by another person, contrary
to the terms of the lease or agreement; and
(j) ABAL has the same right to ratify a contract or agreement
relating to an asset or liability transferred to it from BSAL as
BSAL would have had if there had been no transfer; and
(k) if, at the appointed day, legal proceedings had been
commenced by or against BSAL or were continuing by or
against BSAL because of a transfer of an interest to BSAL or
BSAL's assumption of responsibility for conducting or
defending the proceedings—
(i) the proceedings must (subject to discontinuance) be
continued and completed by or against ABAL; and
(ii) ABAL will have the same rights and privileges as
BSAL would have had if there had been no transfer;
and
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(iii) a document that could have been given in evidence by
or against BSAL if there had been no transfer may be
given in evidence by or against ABAL; and
(l) ABAL may execute an instrument discharging, surrendering,
transferring or otherwise dealing with a transferred asset or
liability in its own name, in the BSAL's name, or if the asset
or liability is held in the name of a predecessor in title to
BSAL, in the name of the predecessor in title.
Direct payment orders to accounts transferred to BSAL
9. An instruction, order or mandate for payments to be made to an
account at BSAL is, if the account at BSAL is transferred to ABAL under
this Act, taken to be an instruction, order of mandate for the payment to be
made to the account at ABAL.
Registration of title, etc
10. (1) The Registrar-General or other person required or
authorised by law to register or record transactions affecting assets or
liabilities—
(a) may (without formal application) register or record in the
appropriate manner the transfer of an asset or liability under
this Act; and
(b) must, on application by ABAL, register or record in the
appropriate manner the transfer of an asset or liability under
this Act.
(2) A transaction related to a transferred asset or transferred
liability entered into by ABAL in BSAL's name or the name of a predecessor
in title to BSAL, if effected by an instrument otherwise in registrable form,
must be registered even though ABAL has not been registered as proprietor
of the asset.
Exclusion of obligation to enquire
11. (1) A person dealing with ABAL is not obliged to enquire
whether an asset to which the transaction relates is or is not a transferred
asset.
(2) A person dealing with BSAL is not obliged to enquire whether
an asset to which the transaction relates is or is not a transferred asset.
(3) If BSAL was entitled to an asset before the appointed day, and
after that day, BSAL or ABAL purports to deal with the asset as if entitled to
it, the transaction is valid even though the body corporate purporting to deal
with the asset is not entitled to do so because the asset is, or is not, a
transferred asset.
(4) However, this section does not validate a transaction if the
party dealing with BSAL has actual notice of the deficiency of title, or acts
fraudulently.
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PART 3
GOVERNMENT GUARANTEE
Government guarantee
12. (1) The Treasurer guarantees that ABAL will satisfy
transferred liabilities that were formerly guaranteed under section 20 of the
State Bank (Corporatisation) Act 1994.
(2) Any money required under the guarantee is to be paid out of
the Consolidated Account (which is appropriated to the necessary extent).
(3) Subject to the following qualifications, the guarantee expires
on 1 July 1999—
(a) if a written demand is made not later than 30 June 1999 for
payment of a guaranteed liability falling due on or before that
date, the guarantee continues in relation to the liability; and
(b) if a written demand is made for payment of a guaranteed
liability not later than six months after the liability falls due,
the guarantee continues in relation to the liability even
though—
(i) the demand is made on or after 1 July 1999; or
(ii) the liability falls due on or after 1 July 1999.
(4) For the purposes of subsection (3)—
(a) a guaranteed liability is taken to fall due when the person is
whose favour the liability exists first becomes entitled to
require payment in discharge of the liability; and
(b) where a guaranteed liability falls due by virtue of service fo a
written notice or demand, the notice or demand constitutes a
written demand for payment of the liability.
(5) For the purposes of this section, payments or transfers of
money from an account at ABAL containing a deposit guaranteed under this
section are taken to diminish the guaranteed liability before any liability not
guaranteed under this section.
(6) If the Treasurer makes a payment to a person under the
guarantee, the Treasurer is subrogated, to the extent of the payment, to the
person's rights (including rights of priority as a creditor in a winding-up) in
respect of the liability guaranteed.
(7) In this section—
"deposit" includes money on current account and the bonds known
as Term Bonds but does not include any other bond issue, note
issue or other raising of capital in the capital markets.
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PART 4
STAFF
DIVISION 1—TRANSFER OF STAFF
Transfer of staff
13. (1) The CEO may, by order in writing, transfer employees of
BSAL to positions in the employment of ABAL or an ABAL subsidiary.
(2) An order under this section—
(a) must relate to all employees employed by BSAL at the date
of the order; and
(b) must be made within 12 months after the appointed day.
(3) An employee to whom an order under this section relates
ceases to be an employee of BSAL and becomes, in accordance with the
order, an employee of ABAL or an ABAL subsidiary.
(4) A transfer under this section does not—
(a) affect the employee's remuneration; or
(b) interrupt continuity of service; or
(c) constitute a retrenchment or redundancy; or
(d) affect terms or conditions of employment; or
(e) affect rights accrued at the date of the transfer in respect of
employment; or
(f) give rise to a superannuation entitlement or any other
entitlement or remedy for cessation or change of
employment.
(5) A transfer under this section must not involve—
(a) a reduction in the employee's status; or
(b) a change in the employee's duties that would be unreasonable
having regard to the employee's skills, ability and experience;
or
(c) a change in the employee's place of employment unless—
(i) the change is in accordance with existing terms of
employment; or
(ii) the new place of employment is within reasonable
commuting distance from the employee's former place
of employment.
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(6) However—
(a) an employee's status is not reduced by—
(i) a reduction in the scope of business operations for
which the employee is responsible; or
(ii) a reduction in the number of employees under the
employee's supervision or management,
if the general nature of the employee's responsibility after
the transfer remains the same as, or similar to, the
employee's responsibility before the transfer; and
(b) the transfer of an employee under this section does not affect
a power to vary terms and conditions of employment.
(7) On the transfer of an employee to the employment of a new
employer under this section, all existing and accruing liabilities related to the
employee's employment are transferred to the new employer.
Directors, secretaries and auditors
14. A director, secretary or auditor of BSAL does not become a
director, secretary or auditor of ABAL as a result of a transfer of employment
under this Part.
DIVISION 2—SUPERANNUATION
Definitions
15. In this Division—
"ABAL" includes an ABAL subsidiary;
"ABAL group" means ABAL and its subsidiaries;
"State Scheme" means the superannuation scheme established
under the Superannuation Act 1988;
"scheduled provisions" means the provisions in Schedule 2 of the
State Bank (Corporatisation) Act 1994;
"superannuation rights" means rights in relation to
superannuation (including, where applicable, rights under the State
Scheme).
Preservation of superannuation rights
16. (1) The superannuation rights of employees who are
transferred from the BSAL's employment to ABAL's employment under this
Act are unaffected by this Act.
(2) If an employee has rights under the State Scheme, those rights
are unaffected by transfer of employment within the ABAL group.
(3) The scheduled provisions are to be read subject to
amendments prescribed by regulation.
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PART 5
MISCELLANEOUS
Stamp duty and other taxes
17. (1) No stamp duty, financial institutions duty, or debits tax is
payable under a law of the State in respect of—
(a) a transfer of assets or liabilities under this Act; or
(b) an application or entry made, receipt given, or anything else
done for the purpose of acknowledging, evidencing,
recording, registering, or giving effect to a transfer of assets
or liabilities under this Act.
(2) No obligation arises under an Act for the assessment or
imposition of stamp duty, financial institutions duty or debits tax—
(a) to lodge a statement or return relating to a transfer of assets
or liabilities under this Act; or
(b) to include information about such a transfer in a statement or
return.
Evidence
18. (1) The CEO may issue a certificate certifying that specified
assets or liabilities are, or are not, transferred assets or transferred liabilities.
(2) An apparently genuine document purporting to be a certificate
under subsection (1) must be accepted in legal proceedings or by an
administrative official as proof of the matter certified in the absence of proof
to the contrary.
(3) The transfer of BSAL's undertaking to ABAL does not affect
the character that records made by BSAL or a bank from which BSAL
acquired the records may have as banking records for the purposes of the law
of evidence.
Act overrides other laws
19. This Act has effect despite the Real Property Act 1886 or any
other law.
Effect of things done or allowed under Act
20. Nothing done or allowed under this Act—
(a) constitutes a breach or, or default under, an Act or other law;
or
(b) constitutes a breach of, or default under, a contract,
agreement, understanding or undertaking; or
(c) constitutes a breach of a duty of confidence (whether arising
by contract, in equity or by custom) or in any other way; or
(d) constitutes a civil or criminal wrong; or
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(e) terminates an agreement or obligation or fulfils any condition
that allows a person to terminate an agreement or obligation,
or gives rise to any other right or remedy; or
(f) releases a survey or any other obligee wholly or in part from
an obligation.
Name in which ABAL carries on business
21. (1) ABAL may carry on business in the State under any of the
following names—
(a) its own name; or
(b) Bank of South Australia; or
(c) BankSA; or
(d) any other name registered under the Business Names Act
1963.
(2) Bank of South Australia and BankSA must, on application by
ABAL, be registered as business names under the Business Names Act 1963.
Regulations and proclamations
22. The Governor may make regulations and proclamations for
the purposes of this Act.
SCHEDULE
Excluded Assets and Liabilities
The following are classified as excluded assets or liabilities (as the case
requires)—
(a) BSAL's rights and liabilities under leasing and finance plan
types 43, 49, 50, 51, 52, 53, 54 and 56 and under managed
plan types 55 and 57;
(b) BSAL's liabilities under its issued shares;
(c) the shares in BSAL Financial Services Limited owned by
BSAL;
(d) all rights and liabilities in relation to BSAL's employees;
(e) cash equal to the BSAL's retained earnings as at the
appointed day.
In the name and on behalf of Her Majesty, I hereby assent to this Bill.
ROMA MITCHELL Governor
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Endnotes
ENDNOTES
General Information
Minister's second reading speech—
Legislative Assembly: 12 September 1996
Legislative Council: 15 October 1996
The long title for the Bill for this Act was "to extend the operation of a South
Australian Act dealing with the merger of the Bank of South Australia and
Advance Bank and for other purposes."
The Bank of South Australia and Advance Bank Act 1996 was assented to
on 29 October 1996 and came into operation as follows:
Ss. 1 and 2 on 29 October 1996: S. 2(1);
Rest of Act on 1 November 1996: Government Gazette 28 November 1996
page 3034.
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Endnotes
2. Table of Amendments
There are no amendments made to the Bank of South Australia and
Advance Bank Act 1996 by Acts and subordinate instruments.
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Endnotes
3. Explanatory Details
No entries at date of publication.
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