AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
ers’ bank accounts to any information derived from the banking relations of the bank and its customer. This includes any transactions that involve the cus - tomer’s account. The duty is qualified by four excep - tional circumstances, where it is permissible for a banker to disclose otherwise privileged information. These exceptions were enumerated by Bankes LJ in Tournier v National Provincial and Union Bank of Eng- land [1924] 1 KB 461. These circumstances include: • where disclosure is under compulsion of law; • where there is a duty to the public to disclose; • where the bank’s interests necessitate disclosure; and • where the disclosure is in accordance with the customer’s express or implied consent. Additionally, there may be a concurrent equitable duty to maintain confidentiality, where existing customers expect that information that they provide to a bank is protected by law. Arguably, this is a more robust basis for the duty of confidentiality, as it does not rely on the existence of a contract. By comparison, the contrac - tual basis requires a court’s determination that such a duty can be implied in the contract. This distinction between the equitable and contractual bases is rein - forced by the fact that parties are free to insert express provisions that are inconsistent with the general duty of confidentiality. Statutory Duty of Confidentiality From a privacy perspective, a banker is restrained from disclosing personal information, unless the cus - tomer has consented to the disclosure, the disclosure is required by law, or the disclosure is reasonably nec - essary for the enforcement of the criminal law, or of a law imposing a pecuniary penalty, or for the protection of the public revenue (Privacy Act 1988 (Cth) Section 14). Statutory Requirements to Disclose In certain circumstances, the duty of confidentiality may be negated in order to facilitate the production of evidence under statutory instruments. For instance, a banker may be required to disclose evidence in relation to a fraud claim under Section 28 of the Australian Crime Commission Act 2002 (Cth).
Additionally, under Section 213 of the Proceeds of Crime Act 2002 (Cth) a financial institution may be required to provide information or documents to an “authorised officer”, as defined in Section 338 of the Proceeds of Crime Act 2002 (Cth), to determine any of the following information: • whether an account has been held by a specified person; • the balance of the account; • whether a particular individual is a signatory to an account; • details of transactions on an account; • the details of any related accounts; • determining whether a stored value card was issued to a specified person; • the details of transactions made using this card; or • whether a transaction was conducted by the finan - cial institution on behalf of the specified person. The “officers” who may request the information out - lined above include a member or employee of the Aus - tralian Police Force, the Integrity Commissioner, Chief Executive Officer of the Australian Crime Commission, and staff member of the Australian Crime Commission (Proceeds of Crime Act 2002 (Cth) Section 213 (3)). Furthermore, under Section 40 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the “AML/CTF Act”), a “reporting entity” must report any suspicious matter to the CEO of the Australian Transaction Reports and Analysis Centre (AUSTRAC). Section 62 of the Banking Act 1959 (Cth) also requires an Authorised Deposit-Taking Institution (ADI) to provide information to the Australian Pruden - tial Regulatory Authority (APRA) in respect of the ADI or any member of a group of bodies corporate of which the ADI is a member. Additionally, ASIC may require a bank to produce specified books relating to the affairs of the bank under Section 30 of the Austral - ian Securities and Investments Commission Act 2001 (Cth). Under Section 77A of the Bankruptcy Act 1966 (Cth), a trustee in bankruptcy may require a banker to provide to the trustee (or another), specified accounts, deeds or documentation.
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