Part IV Common Law Legal Systems, 15 Australia

Subject(s):

Civil liability of lenders — Regulatory liability of lenders — Bank resolution and insolvency — Bank supervision — Capital markets — Supervision

Australia has been spared recent collapses of significant financial institutions. The powers of Australian regulators to resolve a failing institution have not been tested in the courts. The Australian Prudential Regulation Authority (APRA) and the Australian Securities and Investments Commission are given broad immunities from suit by potential claimants, except in respect of conduct not in good faith. It is likely that this would allow claims for intentional torts, such as the tort of misfeasance in public office. Cases where the elements of that tort could be made out by an affected institution, depositor, or other counterparty to that institution should be rare. In addition, the Commonwealth Constitution provides some protection against regulatory action that might be characterized as an acquisition of property that is not on just terms. An action by APRA that had this character could give rise to a statutory ground for compensation against the Commonwealth.