An Act relating to the constitution and operations of the Commonwealth banks
Part I—Preliminary
1 Short title
This Act may be cited as the Commonwealth Banks Act 1959.
2 Commencement
This Act shall come into operation on the day on which the Reserve Bank Act 1959 comes into operation.
4 Interpretation
In this Act, unless the contrary intention appears:
articles means articles of association.
Australia includes the external Territories.
bank means a person carrying on the business of banking, and includes the Commonwealth Bank and the Development Bank.
Board means the Board of Directors of the Commonwealth Bank.
Commonwealth Bank means the Commonwealth Bank of Australia.
conversion time means the commencement of section 22 of the Commonwealth Banks Restructuring Act 1990.
Corporation means the Commonwealth Bank Officers Superannuation Corporation, including that body as continuing in existence with a different name.
Development Bank means the Commonwealth Development Bank of Australia, including that body as continuing in existence with a different name.
memorandum means memorandum of association.
pre‑conversion time means the commencement of section 21 of the Commonwealth Banks Restructuring Act 1990.
Securities Commission means:
(a) before the date prescribed for the purposes of paragraph (b)—the National Companies and Securities Commission; or
(b) on and after the date prescribed for the purposes of this paragraph—the Australian Securities Commission.
share, in relation to a body corporate, means a share in the share capital of the body corporate.
5 Application to Territories
This Act extends to all the Territories.
6 This Act subject to Banking Act
This Act has effect subject to the Banking Act 1959 and to the regulations under that Act.
Part IV—The Commonwealth Bank
Division 1—Preliminary steps before conversion of Commonwealth Bank into a public company
27A Share capital of Commonwealth Bank
(1) As from the pre‑conversion time, the Commonwealth Bank is to have a share capital divided into shares of $2 each or such other amount as is prescribed.
(2) The amount of the share capital is equal to the amount required to be applied under section 27B in paying up shares in the Commonwealth Bank.
(3) The share capital may be divided into classes of shares.
(4) Rights may be attached to shares included in a class of shares.
(5) As from the conversion time, this section has effect subject to the Companies Act 1981.
27B Shares to be paid up and issued
(1) As soon as practicable after the pre‑conversion time, the Commonwealth Bank must apply its capital, calculated immediately before the pre‑conversion time, in paying up in full shares in the Commonwealth Bank.
(2) If the amount of the capital is not a multiple of the nominal value of a share, subsection (1) applies as if the amount were reduced to the nearest multiple of the nominal value of a share.
(3) As soon as practicable after complying with subsection (1), the Commonwealth Bank must issue to the Commonwealth all the shares paid up under that subsection.
(4) The shares issued under subsection (3) are to be taken to have been issued for valuable consideration other than cash.
(5) The Commonwealth is not a member of Commonwealth Bank at any time before the conversion time merely because the Commonwealth holds shares in Commonwealth Bank.
27C Commonwealth Bank to apply to be registered as company etc.
(1) The Commonwealth Bank must, before the conversion time:
(a) apply to the Securities Commission under subsection 85(1) of the Companies Act 1981 to be registered as a company limited by shares within the meaning of that Act; and
(b) apply to the Securities Commission under subsection 55(1) of the Companies Act 1981 for the reservation of the name “Commonwealth Bank of Australia”; and
(c) lodge with the Securities Commission a proposed memorandum, and proposed articles, for the Commonwealth Bank; and
(d) if the rights attached to shares included in a class of shares under subsection 27A(4) are not provided for in the memorandum or articles, lodge with the Securities Commission the statement referred to in subsection 124(1) of the Companies Act 1981.
(2) Subject to the regulations, the application mentioned in paragraph (1)(a) must be accompanied by the documents required by subsection 85(4) of the Companies Act 1981 to accompany such an application.
(3) The applications mentioned in paragraphs (1)(a) and (b) must be made to the Securities Commission by delivering them to the office of the Corporate Affairs Commission for the Australian Capital Territory and the documents mentioned in paragraphs (1)(c) and (d) and subsection (2) must be lodged with the Securities Commission by lodging them at that office.
(4) The Commonwealth Bank is to be taken to be entitled to make the applications referred to in paragraphs (1)(a) and (b), and to lodge the documents mentioned in paragraphs (1)(c) and (d) and subsection (2).
(5) The Securities Commission is to be taken:
(a) to have been required to reserve the name “Commonwealth Bank of Australia” under subsection 55(2) of the Companies Act 1981; and
(b) to have so reserved that name immediately after the making of the application mentioned in paragraph (1)(b).
Division 2—Conversion of Commonwealth Bank into a public company
27D Commonwealth Bank taken to be registered under Companies Act
(1) The Securities Commission is to be taken:
(a) to have been required to grant the application mentioned in paragraph 27C(1)(a) and to register the Commonwealth Bank as a company under subsection 86(2) of the Companies Act 1981; and
(b) to have granted the application at the conversion time; and
(c) to have so registered the Commonwealth Bank, at the conversion time:
(i) by the name “Commonwealth Bank of Australia”; and
(ii) in accordance with subsections 86(3) and (4) of the Companies Act 1981, as a public company, and as a company limited by shares, within the meaning of that Act; and
(d) to have registered the name “Commonwealth Bank of Australia” in relation to the Commonwealth Bank at the conversion time, under subsection 55(4) of the Companies Act 1981.
(2) The date of commencement of the Commonwealth Bank’s registration as a company under Division 4 of Part III of the Companies Act 1981 is to be taken to be the day on which the conversion time occurs.
(3) For the purposes of Division 4 of Part III of the Companies Act 1981, the Commonwealth Bank shall be taken to have been on the day before the conversion time, and to be at the conversion time, a corporation within the meaning of that Act.
27E Memorandum and articles of Commonwealth Bank
(1) As from the conversion time, the proposed memorandum, and the proposed articles, lodged under paragraph 27C(1)(c):
(a) are respectively the memorandum, and the articles, of the Commonwealth Bank; and
(b) bind the Commonwealth Bank and its members accordingly.
(2) As from the conversion time, the Companies Act 1981 applies in relation to the Commonwealth Bank’s memorandum and articles as if they had been registered as such under that Act.
27F Membership of the Commonwealth Bank
The Commonwealth:
(a) by force of this subsection, becomes a member of the Commonwealth Bank at the conversion time; and
(b) in relation to membership of the Commonwealth Bank:
(i) is entitled to the same rights, privileges and benefits; and
(ii) is subject to the same duties, liabilities and obligations;
as if the Commonwealth had become a member of the Commonwealth Bank under the Commonwealth Bank’s memorandum and articles.
27G Name of the Commonwealth Bank
Notwithstanding subsection 148(2) of the Corporations Act 2001, the Commonwealth Bank need not have the word “Limited” at the end of its name.
27H Commonwealth Bank is not a Commonwealth authority or Commonwealth company etc.
(1) This section has effect for the purposes of the laws of the Commonwealth, a State or a Territory. However, the effect of this section is subject to any express provision in the law concerned that refers specifically to the Commonwealth Bank.
(2) The Commonwealth Bank is to be taken:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
(b) not to be a public authority or an instrumentality or agency of the Crown; and
(c) without limiting paragraphs (a) and (b), not to be a public authority under the Commonwealth for the purposes of the Crimes Act 1914.
(3) The Commonwealth is to be taken:
(a) not to have a controlling interest or substantial interest in the Commonwealth Bank; and
(b) not to be in a position to control the Commonwealth Bank.
27J Operation of section 25B of Acts Interpretation Act
Nothing in this Act or in the Corporations Act 2001 affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to the Commonwealth Bank.
Division 4—Miscellaneous
28 General functions of Commonwealth Bank
(1) The Commonwealth Bank shall carry on general banking business.
(2) This section is not intended to imply any restriction on the functions or powers that may be conferred on the Commonwealth Bank otherwise than under this section.
(3) This section does not prevent the Commonwealth Bank also being in possession of an authority under the Banking Act 1959 to carry on banking business.
Part VII—The Commonwealth Development Bank
74A Preliminary steps to conversion of Development Bank into a company
Share capital
(1) The Development Bank continues to have the share capital that it had immediately before the commencement of this section.
(2) The persons who held shares in the Development Bank immediately before the commencement of this section continue to hold those shares immediately after the commencement of this section.
(3) A person is not a member of the Development Bank at any time before the commencement of section 74B merely because of holding shares in the Development Bank.
Application for registration as a company
(4) The Development Bank must:
(a) apply to the Australian Securities Commission under section 133 of the Corporations Law for the Development Bank to be registered as a company limited by shares within the meaning of the Corporations Law; and
(b) apply to the Australian Securities Commission under section 374 of the Corporations Law for reservation of the name “Commonwealth Development Bank of Australia Limited”; and
(c) lodge with the Australian Securities Commission a proposed memorandum and proposed articles for the Development Bank.
(5) Subject to the regulations, the application mentioned in paragraph (4)(a) must be accompanied by the documents required by section 136 of the Corporations Law.
(6) The Development Bank must deliver the applications and any accompanying documents to an office of the Australian Securities Commission in the Australian Capital Territory.
(7) The Development Bank is taken to be entitled to make the applications, and to lodge the documents, mentioned in subsections (4) and (5).
(8) The Australian Securities Commission is taken:
(a) to have been required to reserve the name “Commonwealth Development Bank of Australia Limited” under section 374 of the Corporations Law; and
(b) to have reserved that name immediately after lodgment of the application referred to in paragraph (4)(b).
74B Conversion of Development Bank into a company
Registration as a company
(1) The Australian Securities Commission is taken:
(a) to have been required to grant the application mentioned in paragraph 74A(4)(a) and to register the Development Bank as a company under subsection 137(2) of the Corporations Law; and
(b) to have been satisfied that sections 134 and 135 of the Corporations Law do not prevent registration of the Development Bank; and
(c) to have granted the application at the commencement of this section; and
(d) to have registered the Development Bank at the commencement of this section:
(i) by the name “Commonwealth Development Bank of Australia Limited”; and
(ii) in accordance with subsections 137(3) and (5) of the Corporations Law, as a public company, and as a company limited by shares, within the meaning of the Corporations Law; and
(e) to have registered the name “Commonwealth Development Bank of Australia Limited” in relation to the Corporation at the commencement of this section under subsection 374(5) of the Corporations Law.
Memorandum and articles
(2) As from the commencement of this section, the proposed memorandum, and proposed articles, lodged under section 74A:
(a) are the memorandum and articles of the Development Bank; and
(b) bind the Development Bank and its members accordingly.
(3) As from the commencement of this section, the Corporations Law applies in relation to the Development Bank’s memorandum and articles as if they had been registered as such under the Corporations Law.
Membership
(4) Each person who holds shares in the Development Bank at the commencement of this section:
(a) by force of this section, becomes a member of the Development Bank at the commencement of this section; and
(b) in relation to the person’s membership of the Development Bank:
(i) is entitled to the same rights, privileges and benefits; and
(ii) is subject to the same duties, liabilities and obligations;
as if the person had become a member of the Development Bank under the memorandum and articles of the Development Bank.
Section 25B of the Acts Interpretation Act
(5) Nothing in this Act or in the Corporations Law affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to the Development Bank.
Miscellaneous
(6) Nothing in section 74A prevents:
(a) variation of the share capital of the Development Bank; or
(b) a change in the name of the Development Bank; or
(c) a change in the structure, memorandum, articles or membership of the Development Bank.
74C Development Bank is not a Commonwealth authority or Commonwealth company etc.
(1) This section has effect for the purposes of the laws of the Commonwealth, a State or a Territory. However, the effect of this section is subject to any express provision in the law concerned that refers specifically to the Development Bank.
(2) The Development Bank is to be taken:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
(b) not to be a public authority or an instrumentality or agency of the Crown; and
(c) without limiting paragraphs (a) and (b), not to be a public authority under the Commonwealth for the purposes of the Crimes Act 1914.
(3) The Commonwealth is to be taken:
(a) not to have a controlling interest or substantial interest in the Development Bank; and
(b) not to be in a position to control the Development Bank.
Part VIII—The Commonwealth Bank Officers Superannuation Corporation
108A Preliminary steps to conversion of Corporation into a company
Share capital
(1) From the commencement of this section, the Corporation is to have a share capital of $2, divided into shares of $1 each.
(2) As soon as practicable after the commencement of this section, the Corporation must apply $2 (paid to the Corporation by the Commonwealth Bank) in paying up in full the shares in the Corporation.
Issue of shares
(3) As soon as practicable after the Corporation complies with subsection (2), the Corporation must issue to the Commonwealth Bank all the shares that were paid up under that subsection.
(4) The Commonwealth Bank is not a member of the Corporation at any time before the commencement of section 108B merely because it holds shares in the Corporation.
Application for registration as a company
(5) The Commonwealth Bank must:
(a) apply to the Australian Securities Commission under section 133 of the Corporations Law for the Corporation to be registered as a company limited by shares within the meaning of the Corporations Law; and
(b) apply to the Australian Securities Commission under section 374 of the Corporations Law for reservation of the name “Commonwealth Bank Officers Superannuation Corporation”; and
(c) lodge with the Australian Securities Commission a proposed memorandum and proposed articles for the Corporation.
(6) Subject to the regulations, the application mentioned in paragraph (5)(a) must be accompanied by the documents required by section 136 of the Corporations Law.
(7) The Commonwealth Bank must deliver the applications and any accompanying documents to an office of the Australian Securities Commission in the Australian Capital Territory.
(8) The Commonwealth Bank is taken to be entitled to make the applications, and to lodge the documents, mentioned in subsections (5) and (6).
(9) The Australian Securities Commission is taken:
(a) to have been required to reserve the name “Commonwealth Bank Officers Superannuation Corporation” under section 374 of the Corporations Law; and
(b) to have reserved that name immediately after lodgment of the application referred to in paragraph (5)(b).
108B Conversion of Corporation into a company
Registration as a company
(1) The Australian Securities Commission is taken:
(a) to have been required to grant the application mentioned in paragraph 108A(5)(a) and to register the Corporation as a company under subsection 137(2) of the Corporations Law; and
(b) to have been satisfied that sections 134 and 135 of the Corporations Law do not prevent registration of the Corporation; and
(c) to have granted the application at the commencement of this section; and
(d) to have registered the Corporation at the commencement of this section:
(i) by the name “Commonwealth Bank Officers Superannuation Corporation”; and
(ii) in accordance with subsections 137(3) and (5) of the Corporations Law, as a public company, and as a company limited by shares, within the meaning of the Corporations Law; and
(e) to have registered the name “Commonwealth Bank Officers Superannuation Corporation” in relation to the Corporation at the commencement of this section under subsection 374(5) of the Corporations Law; and
(f) to have granted a licence to the Corporation under section 383 of the Corporations Law (which licence may be revoked in accordance with that section).
Memorandum and articles
(2) As from the commencement of this section, the proposed memorandum, and proposed articles, lodged under section 108A:
(a) are the memorandum and articles of the Corporation; and
(b) bind the Corporation and its members accordingly.
(3) As from the commencement of this section, the Corporations Law applies in relation to the Corporation’s memorandum and articles as if they had been registered as such under the Corporations Law.
Membership
(4) By force of this section, the Commonwealth Bank becomes a member of the Corporation at the commencement of this section.
(5) In relation to its membership of the Corporation, the Commonwealth Bank:
(a) is entitled to the same rights, privileges and benefits; and
(b) is subject to the same duties, liabilities and obligations;
as if the Commonwealth Bank had become a member of the Corporation under the memorandum and articles of the Corporation.
Section 25B of the Acts Interpretation Act
(6) Nothing in this Act or in the Corporations Law affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to the Corporation.
Miscellaneous
(7) Nothing in section 108A prevents:
(a) variation of the share capital of the Corporation; or
(b) a change in the name of the Corporation; or
(c) a change in the structure, memorandum, articles or membership of the Corporation.
108C Corporation is not a Commonwealth authority or Commonwealth company etc.
(1) This section has effect for the purposes of the laws of the Commonwealth, a State or a Territory. However, the effect of this section is subject to any express provision in the law concerned that refers specifically to the Corporation.
(2) The Corporation is to be taken:
(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
(b) not to be a public authority or an instrumentality or agency of the Crown; and
(c) without limiting paragraphs (a) and (b), not to be a public authority under the Commonwealth for the purposes of the Crimes Act 1914.
(3) The Commonwealth is to be taken:
(a) not to have a controlling interest or substantial interest in the Corporation; and
(b) not to be in a position to control the Corporation.
110 Superannuation fund
(1) The Corporation’s superannuation fund that was in existence immediately before the commencement of this section:
(a) continues in existence; and
(b) is to be governed by the Trust Deed.
(2) All the rights and liabilities of members and beneficiaries of the fund that existed immediately before the commencement of this section continue after the commencement of this section, subject to the Trust Deed.
(3) In this section:
Trust Deed means the trust deed made before the commencement of this section between the Corporation and the Commonwealth Bank, and includes any amendments to that deed.
Part IX—Miscellaneous
117 Guarantee by the Commonwealth
(1) The Commonwealth guarantees the due payment of the following amounts:
(a) any amount that is payable by the Commonwealth Bank before the cut‑off time in respect of a demand deposit made with the bank;
(b) any amount that is payable by the Commonwealth Bank at any time in respect of a term deposit made with the bank before the cut‑off time;
(c) any amount that:
(i) is not in respect of a demand deposit or term deposit; and
(ii) is payable by the Commonwealth Bank under a contract that was entered into, or any other instrument that was executed, issued, endorsed or accepted, before the commencement of this section by the Commonwealth Bank or the Corporation.
(2) The Commonwealth guarantees the due payment by the Development Bank of any amount that is payable by the Development Bank to a person other than the Commonwealth.
(3) The Commonwealth guarantees the due payment of any amount that is payable to or from the superannuation fund, by the Corporation or by the Commonwealth Bank, in respect of a person who was a member, retired member or beneficiary of the fund immediately before the commencement of this section.
(3A) If:
(a) immediately before the day (the commencement day) that Schedule 1 to the Treasury Laws Amendment (2023 Measures No. 2) Act 2023 commences a person holds an interest in the superannuation fund; and
(b) immediately before the commencement day the Commonwealth guarantees under subsection (3) the due payment of any amount in respect of the person; and
(c) on or after the commencement day:
(i) the interest is transferred from the superannuation fund to a successor fund (within the meaning of the Income Tax Assessment Act 1997); and
(ii) the successor fund is a regulated superannuation fund;
then, so long as the person continues to hold an interest in the successor fund, the Commonwealth guarantees the due payment of any amount that is payable to or from the successor fund, by the trustee of the successor fund or by the Commonwealth Bank, in respect of the person.
(3B) Disregard subsection (3) when determining whether a regulated superannuation fund confers on a person equivalent rights in respect of an interest to the rights they had under another regulated superannuation fund in respect of the interest for the purposes of any law of the Commonwealth dealing with successor funds.
(4) In this section:
cut‑off time means the end of the day that is the third anniversary of the date of commencement of this section.
demand deposit means any deposit that is not a term deposit.
regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
superannuation fund means the superannuation fund referred to in section 110.
term deposit means a deposit made with a bank that matures on a particular date, whether or not the bank can be required to repay the deposit before that maturity date.
129 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular:
(e) prescribing penalties not exceeding $100 for offences against the regulations.