NORTHERN TERRITORY OF AUSTRALIA
BANK OF SOUTH AUSTRALIA (MERGER WITH ADVANCE BANK)
ACT 1996
As in force at 15 July 2001
TABLE OF PROVISIONS
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Definition.......................................................................................... 1
4 Extension of operation of South Australian Act................................ 1
5 Action by Registrar-General ............................................................ 2
Schedule Bank Merger (BankSA and Advance Bank)
Act 1996
ENDNOTES
NORTHERN TERRITORY OF AUSTRALIA
As in force at 15 July 2001
BANK OF SOUTH AUSTRALIA (MERGER WITH ADVANCE BANK)
ACT 1996
An Act to apply a South Australian Act dealing with the merger of the
Bank of South Australia Limited and Advance Bank Australia Limited as
a law of the Territory and for related purposes
1 Short title
This Act may be cited as the Bank of South Australia (Merger with
Advance Bank) Act 1996.
2 Commencement
This Act comes into operation on the date on which the South
Australian Act comes into operation.
3 Definition
In this Act, South Australian Act means the Bank Merger (Bank
SA and Advance Bank) Act 1996 of South Australia, the text of
which is set out in the Schedule.
4 Extension of operation of South Australian Act
(1) The South Australian Act applies as a law of the Territory.
(2) The South Australian Act, as applied as a law of the Territory, is to
be read and construed subject to the following modifications and
exclusions:
(a) section 2 does not apply;
(b) references to South Australia or the State are to be read as
references to the Territory;
(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 appointed
under the Registration Act 1927 of the Territory;
(d) Part 3 does not apply;
Bank of South Australia (Merger with Advance Bank) Act 1996 2
(e) section 17 does not apply and the following section is
substituted:
"Payment of amount in lieu of State taxes and charges
"17. (1) ABAL is to pay to the Treasurer in lieu of any taxes, duties and
charges for which it would otherwise be liable under the law of the
State as a result of, or in connection with, the transfer of the
undertaking of BSAL to ABAL a sum determined by the Treasurer
in accordance with the principles as the Treasurer thinks
appropriate.
"(2) In this section –
Treasurer means the Treasurer of the State.";
(f) section 19 is to be construed as if the reference to the Real
Property Act 1886 of South Australia were omitted;
(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 2007 of the Territory; and
(h) section 22 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) The Acts Interpretation Act 1915 of South Australia applies as a law
of the Territory to the South Australian Act as it applies under this
section.
5 Action by Registrar-General
(1) On being requested to do so and on delivery of any relevant
instrument or document, the Registrar-General is to 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 is to 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.
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 3
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Section 3
BANK MERGER (BANKSA AND ADVANCE BANK) ACT 1996
No. 41 of 1996
SUMMARY OF PROVISIONS
PART 1
PRELIMINARY
Short title
Commencement
Interpretation
Act to bind the Crown
Extra-territorial application
PART 2
VESTING OF BSAL's UNDERTAKING IN ABAL
Vesting of undertaking
Conditions of transfer
Transitional provisions
Direct payment orders to accounts transferred to BSAL
Registration of title, etc
Exclusion of obligation to enquire
PART 3
GOVERNMENT GUARANTEE
Government guarantee
PART 4
STAFF
DIVISION 1 – TRANSFER OF STAFF
Transfer of staff
Directors, secretaries and auditors
DIVISION 2 – SUPERANNUATION
Definitions
Preservation of superannuation rights
PART 5
MISCELLANEOUS
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 4
17. Stamp duty and other taxes
18. Evidence
19. Act overrides other laws
20. Effect of things done or allowed under Act
21. Name in which ABAL carries on business
22. Regulations and proclamations
SCHEDULE
Excluded Assets and Liabilities
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 5
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 (Bank SA 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 Australia Limited.
ABAL subsidiary means a body corporate that is a subsidiary of
ABAL for the purposes of section 46 of the Corporations Act 2001.
appointed day means a day fixed by proclamation as the
appointed day for the purposes of this Act.
asset includes –
(a) a present, contingent of future legal or equitable
estate or interest in real or personal property;
(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;
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 6
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);
(b) a duty or non-pecuniary obligation;
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 7
(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 of 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.
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 8
(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.
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
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 9
(d) if a security held by BSAL is referable to a transferred asset
or transferred liability, then, so far as it is referable to the
transferred 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
(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 at
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
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 10
(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
(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 payments
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
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 11
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.
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,
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 12
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 of
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.
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
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 13
(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.
(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,
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 14
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.
PART 5
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 15
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 –
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 16
(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
(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 surety 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) –
Schedule Bank Merger (BankSA and Advance Bank) Act 1996
Bank of South Australia (Merger with Advance Bank) Act 1996 17
(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.
ENDNOTES
Bank of South Australia (Merger with Advance Bank) Act 1996 18
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Bank of South Australia (Merger with Advance Bank) Act 1996 (Act No. 55, 1996)
Assent date 2 December 1996
Commenced 2 December 1996
Corporations Reform (Consequential Amendments NT) Act 2001 (Act No. 17, 2001)
Assent date 29 June 2001
Commenced 15 July 2001 (s 2, s 2 Corporations Act 2001 (Cth Act No. 50,
2001) and Cth Gaz S285, 13 July 2001)
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22, 2018) to: ss 1 and 4
4 LIST OF AMENDMENTS
sch amd No. 17, 2001, s 21