Chapter 9—Miscellaneous
Part 9.1—Registers and registration of documents
1274
Registers
(1) ASIC must, subject to this Act, keep such
registers as it considers necessary in such form as it thinks fit.
(2) A person may:
(a) inspect any document lodged with
ASIC, not being:
(iaa) a notice lodged under
subsection 205D(3); or
(i) an application under
section 1279; or
(ia) a document lodged under
a provision of Chapter 7 (other than subsection 792C(1), section 1015B
or section 1015D); or
(ii) a document lodged
under section 1287, 1287A or 1288; or
(iii) a document lodged
under paragraph 1296(2)(b); or
(iv) a report made or lodged
under section 422, 438D or 533; or
(v) a document that has
been destroyed or otherwise disposed of; or
(b) require a certificate of the
registration of a company or any other certificate authorised by this Act to be
given by ASIC; or
(c) require a copy of or extract from
any document that the person is entitled to inspect pursuant to paragraph (a)
or any certificate referred to in paragraph (b) to be given, or given and
certified, by ASIC.
(2A) For the purposes of subsections (2)
and (5), a document given to ASIC by a market operator (whether or not pursuant
to a provision of this Act) that contains information that the market operator
has made available to participants in the market is taken to be a document
lodged with ASIC.
Note: For example, a document given to ASIC for the
purposes of subsection 792C(1) will be covered by this subsection.
(2B) For the purposes of subsections (2)
and (5), information or a copy of a document that is not required to be lodged
with ASIC because of section 601CDA or 601CTA is taken to be a document
lodged with ASIC if an authority mentioned in the section has given the
information or document to ASIC.
(2C) For the purposes of subsections (2)
and (5), information or a copy of a document that is taken to be lodged with
ASIC because of paragraph 1200D(2)(b) or 1200G(10)(b) is taken to be a document
lodged with ASIC if an authority mentioned in section 601CDA or 601CTA has
given the information or document to ASIC.
(2D) For the purposes of subsections (2)
and (5), each of the following is taken to be a document lodged with ASIC if a
copy has been given to ASIC by APRA:
(a) benefit fund rules that have been
approved by APRA under section 16L of the Life Insurance Act 1995;
(b) an amendment of benefit fund rules
that has been approved by APRA under section 16Q of the Life Insurance
Act 1995;
(c) consequential amendments of a
company’s constitution that have been approved by APRA under section 16U
or 16V of the Life Insurance Act 1995.
(3) If a reproduction or transparency of a
document or certificate is produced for inspection, a person is not entitled
pursuant to paragraph (2)(a) to require the production of the original of
that document or certificate.
(4) The reference in paragraph (2)(c) to
a document or certificate includes, where a reproduction or transparency of
that document or certificate has been incorporated with a register kept by
ASIC, a reference to that reproduction or transparency and, where such a
reproduction or transparency has been so incorporated, a person is not entitled
pursuant to that paragraph to a copy of or extract from the original of that
document or certificate.
(4A) A person is not entitled under paragraph (2)(a)
to require the production of the original of a document or certificate if ASIC
keeps by means of a mechanical, electronic or other device a record of
information set out in the document or certificate and:
(a) ASIC produces to the person for
inspection a writing that sets out what purports to be the contents of the
document or certificate; or
(b) ASIC causes to be displayed for
the person what purports to be the contents of the document or certificate and,
as at the time of the displaying, the person has not asked for the production
of a writing of the kind referred to in paragraph (a).
(4B) Where:
(a) a person makes under paragraph (2)(c)
a requirement that relates to a document or certificate; and
(b) ASIC keeps by means of a
mechanical, electronic or other device a record of information set out in the
document or certificate; and
(c) pursuant to that requirement, ASIC
gives a writing or document that sets out what purports to be the contents of:
(i) the whole of the
document or certificate; or
(ii) a
part of the document or certificate;
then, for the purposes of that paragraph, ASIC is taken to
have given, pursuant to that requirement:
(d) if subparagraph (c)(i)
applies—a copy of the document or certificate; or
(e) if subparagraph (c)(ii)
applies—an extract from the document or certificate setting out that part of
it.
(4C) Where:
(a) the requirement referred to in paragraph (4B)(a)
includes a requirement that the copy or extract be certified; and
(b) pursuant
to that requirement, ASIC gives a writing or document as mentioned in paragraph (4B)(c);
then:
(c) ASIC may certify that the writing
or document sets out the contents of the whole or part of the document or
certificate, as the case requires; and
(d) the writing or document is, in a
proceeding in a court, admissible as prima facie evidence of the
information contained in it.
(5) A copy of or extract from any document
lodged with ASIC, and certified by ASIC, is, in any proceeding, admissible in
evidence as of equal validity with the original document.
Note: See also subsection (2A) for when certain
documents are taken to have been lodged with ASIC.
(6) The reference in subsection (5) to a
document includes, where a reproduction or transparency of that document has
been incorporated with a register kept by ASIC, a reference to that
reproduction or transparency.
(7) In any proceeding:
(a) a certificate by ASIC that, at a
date or during a period specified in the certificate, no company was registered
under this Act by a name specified in the certificate is to be received as
prima facie evidence that at that date or during that period, as the
case may be, no company was registered by that name under this Act; and
(b) a certificate by ASIC that a
requirement of this Act specified in the certificate:
(i) had or had not been
complied with at a date or within a period specified in the certificate; or
(ii) had
been complied with at a date specified in the certificate but not before that
date;
is to be received as prima facie
evidence of matters specified in the certificate; and
(c) a certificate by ASIC that, during
a period specified in the certificate, a particular company was registered, or
taken to be registered, under this Act is to be received as prima facie
evidence that, during that period, that company was registered under this Act.
(7A) A certificate issued by ASIC stating that a
company has been registered under this Act is conclusive evidence that:
(a) all requirements of this Act for
its registration have been complied with; and
(b) the company was duly registered as
a company under this Act on the date specified in the certificate.
(8) If ASIC is of opinion that a document
submitted for lodgment:
(a) contains matter contrary to law;
or
(b) contains matter that, in a
material particular, is false or misleading in the form or context in which it is
included; or
(c) because of an omission or
misdescription has not been duly completed; or
(d) contravenes this Act; or
(e) contains
an error, alteration or erasure;
ASIC may refuse to register or receive the document and
may request:
(f) that the document be
appropriately amended or completed and resubmitted; or
(g) that a fresh document be submitted
in its place; or
(h) where the document has not been
duly completed, that a supplementary document in the prescribed form be lodged.
(9) ASIC may require a person who submits a
document for lodgment to produce to ASIC such other document, or to give to
ASIC such information, as ASIC thinks necessary in order to form an opinion
whether it may refuse to receive or register the first‑mentioned
document.
(10) ASIC may, if in the opinion of ASIC it is
no longer necessary or desirable to retain them, destroy or dispose of:
(a) in relation to a body corporate:
(i) any return of
allotment of shares for cash that has been lodged for not less than 2 years; or
(ii) any balance‑sheet
that has been lodged for not less than 7 years or any document creating or
evidencing a charge, or the complete or partial satisfaction of a charge, where
a memorandum of satisfaction of the charge has been registered for not less than
7 years; or
(iii) any other document
(other than the constitution or any other document affecting it) that has been
lodged or registered for not less than 15 years; or
(c) any document a transparency of
which has been incorporated with a register kept by ASIC.
(11) If a body corporate or other person,
having made default in complying with:
(a) any provision of this Act or of
any other law that requires the lodging in any manner of any return, account or
other document or the giving of notice to ASIC of any matter; or
(b) any
request of ASIC to amend or complete and resubmit any document or to submit a
fresh document;
fails to make good the default within 14 days after the
service on the body or person of a notice requiring it to be done, a court may,
on an application by any member or creditor of the body or by ASIC, make an
order directing the body or any officer of the body or the person to make good
the default within such time as is specified in the order.
(12) Any such order may provide that all costs
of and incidental to the application are to be borne by the body or by any
officers of the body responsible for the default or by the person.
(13) A person must not contravene an order made
under subsection (11).
(14) Nothing in this section prejudices the
operation of any law imposing penalties on a body corporate or its officers or
on another person in respect of a default mentioned in subsection (11).
(15) Where information about a person is
included on a register kept by ASIC, ASIC may at any time, in writing, require
that person to give ASIC specified information about the person, being
information of the kind included on that register.
(16) The person must provide the information
within such reasonable period, and in such form, as are specified by ASIC.
(17) An offence based on subsection (9),
(13) or (16) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
1274AA
Register of disqualified company directors and other officers
(1) ASIC must keep a register of persons who
have been disqualified from managing corporations under:
(a) section 206C, 206D, 206E,
206EA, 206EAA or 206F of this Act; or
(b) a provision of a law of a State or
Territory that:
(i) was in force at any
time before the commencement of this Act; and
(ii) corresponds, in whole
or in part, to one of the provisions referred to in paragraph (a).
(2) The register must contain a copy of:
(a) every order made by the Court
under section 206C, 206D or 206E; and
(aa) every court order referred to in
section 206EA; and
(ab) every court order referred to in
section 206EAA; and
(b) every notice that was served under
subsection 206F(3); and
(c) each permission given under
subsection 206F(5); and
(d) every order lodged under subsection
206G(4); and
(e) every order, notice or permission
that was made, served, given or lodged under a provision of a law of a State or
Territory that:
(i) was in force at any
time before the commencement of this Act; and
(ii) corresponds, in whole
or in part, to one of the provisions referred to in paragraph (a), (b),
(c) or (d).
(3) Subsections 1274(2) and (5) apply to a
copy of an order, notice or permission referred to in subsection (2) as if
that copy were a document lodged with ASIC.
(4) A reference in this section to a
provision of a law of a State or Territory includes a provision as applied as a
law of that State or Territory.
1274A
Obtaining information from certain registers
(1) In this section:
data processor means a mechanical, electronic
or other device for the processing of data.
register means a register kept by ASIC under
this Act.
search includes inspect.
(2) ASIC may permit a person to search,
otherwise than by using a data processor, a prescribed register.
(3) ASIC may permit a person to search a
prescribed register by using a data processor in order to obtain prescribed
information from the register.
(4) ASIC may make available to a person
prescribed information (in the form of a document or otherwise) that ASIC has
obtained from a prescribed register by using a data processor.
(5) Nothing in this section limits:
(a) a power or function that ASIC has
apart from this section; or
(b) a right that a person has apart
from this section.
1274B
Use, in court proceedings, of information from ASIC’s national database
(1) In this section:
data processor means a mechanical, electronic
or other device for processing data.
(2) In a proceeding in a court, a writing
that purports to have been prepared by ASIC is admissible as prima facie evidence
of the matters stated in so much of the writing as sets out what purports to be
information obtained by ASIC, by using a data processor, from the national
database. In other words, the writing is proof of such a matter in the absence
of evidence to the contrary.
(3) A writing need not bear a certificate or
signature in order to be taken to purport to have been prepared by ASIC.
(4) Nothing in this section limits, or is
limited by, section 1274 or 1274A.
1274C
ASIC certificate
ASIC may certify that a person was a
director or secretary of a company at a particular time or during a particular
period. In the absence of evidence to the contrary, a certificate is proof of
the matters stated in it.
Note: See section 1274B for the evidentiary
status of documents prepared by ASIC from the national database.
1275
Relodging of lost registered documents
(1) Where a document forming part of the
constitution of, or any other document relating to, a body corporate has, since
being lodged, been lost or destroyed, a person may apply to ASIC for leave to
lodge a copy of the document as originally lodged.
(2) Where such an application is made, ASIC
may direct that notice of the application be given to such persons and in such
manner as it thinks fit.
(3) Whether or not an application has been
made to ASIC under subsection (1), ASIC, upon being satisfied:
(a) that an original document has been
lost or destroyed; and
(b) of the date of the lodging of that
document; and
(c) that
a copy of that document produced to ASIC is a correct copy;
may certify upon the copy that it is so satisfied and
grant leave for the copy to be lodged in the manner required by law in respect
of the original.
(4) Upon the lodgment the copy has, and is
taken to have had from such date as is mentioned in the certificate as the date
of the lodging of the original, the same force and effect for all purposes as
the original.
(5) A decision of the Tribunal varying or
setting aside a decision of ASIC to certify and grant leave under subsection (3)
may be lodged with ASIC and is to be registered by it, but no payments,
contracts, dealings, acts or things made, had or done in good faith before the
registration of the Tribunal’s decision and upon the faith of and in reliance
upon the certificate are to be invalidated or affected by the Tribunal’s
decision.
(6) Where a transparency of a document
referred to in subsection (1) has been incorporated with a register kept
by ASIC and is lost or destroyed as referred to in that subsection, this
section applies as if the document of which it is a transparency had been so
lost or destroyed.
Part 9.2—Registration of auditors and liquidators
Division 1—Interpretation
1276
Definitions
In this Part, unless the contrary
intention appears:
body corporate includes a Part 5.7 body.
decision, in relation to the Board, means, in
Division 3, a decision of the Board under that Division and includes a
refusal to exercise a power under section 1292.
registered means registered under Division 2.
Division 2—Registration
1279
Application for registration as auditor or liquidator
(1) A natural person may make an application
to ASIC:
(a) for registration as an auditor; or
(b) for registration as a liquidator;
or
(c) for registration as a liquidator
of a specified body corporate, being a body corporate that is to be wound up
under this Act.
(2) An application under this section:
(a) must be lodged with ASIC; and
(b) must contain such information as
is prescribed in the regulations; and
(c) must be in the prescribed form.
1280
Registration of auditors
(2) Subject to this section, where an
application for registration as an auditor is made under section 1279,
ASIC must grant the application and register the applicant as an auditor if:
(a) the applicant satisfies subsection (2A)
or (2B); and
(b) ASIC is satisfied that the
applicant has either:
(i) satisfied all the
components of an auditing competency standard approved by ASIC under section 1280A;
or
(ii) had such practical
experience in auditing as is prescribed; and
(c) ASIC
is satisfied that the applicant is capable of performing the duties of an
auditor and is otherwise a fit and proper person to be registered as an
auditor;
but otherwise ASIC must refuse the application.
(2A) The applicant satisfies this subsection if
the applicant:
(a) holds a degree, diploma or
certificate from a prescribed university or another prescribed institution in Australia;
and
(b) has, in the course of obtaining
that degree, diploma or certificate, passed examinations in such subjects,
under whatever name, as the appropriate authority of the university or other
institution certifies to ASIC to represent a course of study:
(i) in accountancy
(including auditing) of not less than 3 years duration; and
(ii) in commercial law
(including company law) of not less than 2 years duration; and
(c) has satisfactorily completed a
course in auditing prescribed by the regulations for the purposes of this
paragraph.
(2B) The applicant satisfies this subsection if
the applicant has other qualifications and experience that, in ASIC’s opinion,
are equivalent to the requirements mentioned in subsection (2A).
(3) ASIC must not register as an auditor a
person who is disqualified from managing corporations under Part 2D.6.
(4) Subject to subsection (8), ASIC may
refuse to register as an auditor a person who is not resident in Australia.
(5) Where ASIC grants an application by a
person for registration as an auditor, ASIC must cause to be issued to the
person a certificate by ASIC stating that the person has been registered as an
auditor and specifying the day on which the application was granted.
(7) A registration under this section is
taken to have taken effect at the beginning of the day specified in the
certificate as the day on which the application for registration was granted
and remains in force until:
(a) the registration is cancelled by
ASIC or the Board; or
(b) the person who is registered dies.
(8) ASIC must not refuse to register a person
as an auditor unless ASIC has given the person an opportunity to appear at a
hearing before ASIC and to make submissions and give evidence to ASIC in
relation to the matter.
(9) Where ASIC refuses an application by a
person for registration as an auditor, ASIC must, not later than 14 days after
the decision, give to the person a notice in writing setting out the decision
and the reasons for it.
1280A
Approval of auditing competency standard
(1) ASIC may, on application by any person,
approve an auditing competency standard for the purposes of paragraph
1280(2)(b). The approval must be in writing.
(2) If, on application by a person, ASIC
approves an auditing competency standard under subsection (1), ASIC may,
on application by that person, approve a variation of the standard. The
approval must be in writing.
(3) ASIC must not approve an auditing
competency standard, or a variation of an auditing competency standard, unless
it is satisfied that:
(a) the standard, or the standard as
proposed to be varied, provides that a person’s performance against each
component of the standard is to be appropriately verified by a person who:
(i) is a registered
company auditor; and
(ii) has sufficient
personal knowledge of the person’s work to be able to give that verification;
and
(b) the standard, or the standard as
proposed to be varied, is not inconsistent with this Act or any other law of
the Commonwealth under which ASIC has regulatory responsibilities; and
(c) the standard adequately addresses
the level of practical experience needed for registration as a company auditor;
and
(d) the standard is harmonised to the
greatest extent possible with other approved auditing competency standards.
(4) ASIC may revoke an approval of an
auditing competency standard:
(a) on application by the person who
applied for the approval; or
(b) if ASIC is no longer satisfied as
mentioned in subsection (3).
The revocation must be in writing.
1281
Auditor‑General taken to be registered as auditor
(1) A person who holds office as, or is for
the time being exercising the powers and performing the duties of:
(a) the Auditor‑General; or
(b) the
Auditor‑General of a State or Territory in this jurisdiction;
is taken, despite any other provision of this Part, to be
registered as an auditor.
(2) A person to whom the Auditor‑General
of the Commonwealth, or of a State or Territory, delegates:
(a) the function of conducting an
audit; or
(b) the power to conduct an audit;
is taken to be registered as an auditor under this Part
for the purposes of applying Chapter 2M to the audit.
1282 Registration
of liquidators
(2) Subject to this section, where an
application for registration as a liquidator is made under section 1279,
ASIC must grant the application if:
(a) the applicant:
(ii) holds a degree,
diploma or certificate from a prescribed university or another prescribed
institution in Australia and has passed examinations in such subjects, under
whatever name, as the appropriate authority of the university or other
institution certifies to ASIC to represent a course of study in accountancy of
not less than 3 years duration and in commercial law (including company law) of
not less than 2 years duration; or
(iii) has other
qualifications and experience that, in the opinion of ASIC, are equivalent to
the qualifications mentioned in subparagraph (ii); and
(b) ASIC is satisfied as to the
experience of the applicant in connection with externally‑administered
bodies corporate; and
(c) ASIC
is satisfied that the applicant is capable of performing the duties of a
liquidator and is otherwise a fit and proper person to be registered as a
liquidator;
but otherwise ASIC must refuse the application.
(3) Where an application for registration as
a liquidator of a specified body corporate is made under section 1279,
ASIC must grant the application and register the applicant as a liquidator of
that body if ASIC is satisfied that the applicant has sufficient experience and
ability, and is a fit and proper person, to act as liquidator of the body,
having regard to the nature of the property or business of the body and the
interests of its creditors and contributories, but otherwise ASIC must refuse
the application.
(4) ASIC must not register as a liquidator,
or as a liquidator of a specified body corporate, a person who is disqualified
from managing corporations under Part 2D.6.
(5) Subject to subsection (10), ASIC may
refuse to register as a liquidator or as a liquidator of a specified body
corporate a person who is not resident in Australia.
(6) Where:
(a) ASIC grants an application by a
person for registration as a liquidator or as a liquidator of a specified body
corporate; and
(b) the
person has complied with the requirements of section 1284;
ASIC must cause to be issued to the person a certificate
by ASIC:
(c) stating that the person has been
registered as a liquidator or as a liquidator of a specified body corporate;
and
(d) specifying a day as the day of the
beginning of the registration, being:
(i) the day on which ASIC
granted the application; or
(ii) the
day on which the person complied with the requirements of section 1284;
whichever was the later; and
(e) in the case of a person who is
registered under subsection (3) as a liquidator of a specified body
corporate—setting out the name of that body.
(8) The registration of a person as a liquidator
under subsection (2) comes into force at the beginning of the day
specified in the certificate as the day of the beginning of the registration
and remains in force until:
(a) the registration is cancelled by
ASIC or by the Board; or
(b) the person dies.
(9) The registration of a person as a
liquidator of a specified body corporate under subsection (3) comes into
force at the beginning of the day specified in the certificate as the day of
the beginning of the registration and remains in force until:
(a) the registration is cancelled by
ASIC or by the Board; or
(b) the person dies; or
(c) the body corporate is
dissolved or deregistered.
(10) ASIC must not refuse to register a person
as a liquidator, or as a liquidator of a specified body corporate, unless ASIC
has given the person an opportunity to appear at a hearing before ASIC and to
make submissions and give evidence to ASIC in relation to the matter.
(11) Where ASIC refuses an application by a
person for registration as a liquidator, or as a liquidator of a specified body
corporate, ASIC must, not later than 14 days after the decision, give to the
person notice in writing setting out the decision and the reasons for it.
1283
Registration of official liquidators
(1) ASIC may register as an official
liquidator a natural person who is a registered liquidator.
(2) A person who is registered as an official
liquidator is entitled, upon request, to be issued with a certificate of his or
her registration.
(3) ASIC may register under subsection (1)
as official liquidators as many registered liquidators as it thinks fit.
1284
Insurance to be maintained by liquidators
(1) A person who is registered as a
liquidator, or as a liquidator of a specified body corporate, must maintain:
(a) adequate and appropriate
professional indemnity insurance; and
(b) adequate and appropriate fidelity
insurance;
for claims that may be made against the person in
connection with externally‑administered bodies corporate.
(2) If the registration of a person as a liquidator,
or as a liquidator of a specified body corporate, came into force before the
commencement of this subsection, subsection (1) does not apply to the
person at any time before 1 July 2008.
1285
Register of Auditors
(1) ASIC must cause a Register of Auditors to
be kept for the purposes of this Act and must cause to be entered in the
Register in relation to a person who is registered as an auditor:
(a) the name of the person; and
(b) the day on which the application
by that person for registration as an auditor was granted; and
(c) the address of the principal place
where the person practises as an auditor and the address of the other places
(if any) at which he or she so practises; and
(d) if the person practises as an
auditor as a member of a firm or under a name or style other than his or her
own name—the name of that firm or the name or style under which he or she so
practises; and
(e) particulars
of any suspension of the person’s registration, under Division 2, as an
auditor and of any action taken in respect of the person under paragraph
1292(9)(a), (b) or (c);
and may cause to be entered in the Register in relation to
a person who is registered as an auditor such other particulars as ASIC
considers appropriate.
(2) Where a person ceases to be registered as
an auditor, ASIC must cause to be removed from the Register of Auditors the
name of the person and any other particulars entered in the Register in
relation to that person.
(3) A person may inspect and make copies of,
or take extracts from, the Register of Auditors.
1286
Registers of Liquidators and Official Liquidators
(1) ASIC must cause a Register of Liquidators
to be kept for the purposes of this Act and must cause to be entered in the
Register:
(a) in relation to a person who is
registered as a liquidator:
(i) the name of the
person; and
(ii) the day of the
beginning of the registration of that person as a liquidator; and
(iii) the address of the
principal place where the person practises as a liquidator and the addresses of
the other places (if any) at which he or she so practises; and
(iv) if the person practises
as a liquidator as a member of a firm or under a name or style other than his
or her own name—the name of that firm or the name or style under which he or
she so practises; and
(v) particulars of any
suspension of the registration of the person as a liquidator or as a liquidator
of a specified body corporate, and of any action taken in respect of the person
under paragraph 1292(9)(a), (b) or (c); and
(b) in relation to a person who is
registered as a liquidator of a specified body corporate:
(i) the name of the
person; and
(ii) the name of the body
corporate; and
(iii) the day of
commencement of the registration of the person as a liquidator of the body
corporate; and
(iv) the address of the
principal place where the person proposes to perform his or her functions as
the liquidator of the body corporate; and
(v) if the person practises
a profession as a member of a firm or under a name or style other than his or
her own name, being a profession by virtue of which he or she is qualified to
be appointed as a liquidator of the body corporate—the name and address of that
firm or the name or style under which he or she so practises; and
(vi) particulars
of any suspension or deemed suspension of the registration of the person as a
liquidator of that body corporate or as a liquidator of a specified body
corporate, and of any action taken in respect of the person under paragraph
1292(9)(a), (b) or (c);
and may cause to be entered in the Register in relation to
a person who is registered as a liquidator, or as a liquidator of a specified
body corporate, such other particulars as ASIC considers appropriate.
(2) ASIC must cause a Register of Official
Liquidators to be kept for the purposes of this Act and must cause to be
entered in the Register the name, and such other particulars as ASIC considers
appropriate, of any person registered as an official liquidator.
(3) Where a person ceases to be registered as
a liquidator, as a liquidator of a specified body corporate or as an official
liquidator, ASIC must cause to be removed from the Register of Liquidators or
from the Register of Official Liquidators, as the case may be, the name of the
person and any other particulars entered in that Register in relation to that
person.
(4) A person may inspect and make copies of,
or take extracts from, the Register of Liquidators or the Register of Official
Liquidators.
1287
Notification of certain matters
(1) Where:
(a) a person who is a registered
company auditor ceases to practise as an auditor; or
(b) a
change occurs in any matter particulars of which are required by paragraph
1285(1)(a), (c) or (d) to be entered in the Register of Auditors in relation to
a person who is a registered company auditor;
the person must, not later than 21 days after the
occurrence of the event concerned, lodge, in the prescribed form, particulars
in writing of that event.
(2) Where:
(a) a person who is a registered
liquidator ceases to practise as a liquidator; or
(b) a
change occurs in any matter particulars of which are required by subparagraph
1286(1)(a)(i), (iii) or (iv) to be entered in the Register of Liquidators in
relation to a person who is a registered liquidator;
the person must, not later than 21 days after the
occurrence of the event concerned, lodge, in the prescribed form, particulars
in writing of that event.
(3) Where:
(a) a person who is registered as a
liquidator of a specified body corporate ceases to act as a liquidator in the
winding up of that body; or
(b) a
change occurs in any matter particulars of which are required by subparagraph
1286(1)(b)(i), (ii), (iv) or (v) to be entered in the Register of Liquidators
in relation to a person who is registered as a liquidator of a specified body
corporate;
the person must, not later than 21 days after the
occurrence of the event concerned, lodge, in the prescribed form, particulars
in writing of that event.
(4) If a person who is registered as an
auditor, as a liquidator or as a liquidator of a specified corporate body is
disqualified from managing corporations under Part 2D.6, then, within a
period of 3 days after they become disqualified, they must lodge written
particulars in the prescribed form of the circumstances because of which they
become disqualified.
1287A
Annual statements by registered company auditors
(1) A person who is a registered company
auditor must, within one month after the end of:
(a) the period of 12 months beginning
on the day on which the person’s registration begins; and
(b) each subsequent period of 12
months;
lodge with ASIC a statement in respect of that period.
(1A) A statement under subsection (1):
(a) must contain such information as
is prescribed in the regulations; and
(b) must be in the prescribed form.
(2) ASIC may, on the application of the
person made before the end of the period for lodging a statement under subsection (1),
extend, or further extend, that period.
1288 Annual
statements by registered liquidators
(3) A person
who is a registered liquidator must, within one month after the end of:
(a) the period of 12 months beginning
on the day on which the person’s registration begins; and
(b) each
subsequent period of 12 months;
lodge a statement in respect of that period of 12 months
setting out such information as is prescribed.
(4) ASIC may, on the application of a
registered liquidator made before the end of the period for lodging a statement
under subsection (3), extend, or further extend, that period.
(5) ASIC may, by notice in writing served on
the person, require a person who is registered as a liquidator of a specified
body corporate to lodge, within a period specified in the notice, a statement
in respect of a period specified in the notice setting out such information as
is prescribed.
1289
Auditors and other persons to enjoy qualified privilege in certain
circumstances
Qualified privilege for auditor
(1) An auditor has qualified privilege in
respect of:
(a) a statement that the auditor makes
(orally or in writing) in the course of the auditor’s duties as auditor; or
(b) a statement that the auditor makes
(orally or in writing) on:
(i) a directors’ report
under section 298 or 306; or
(ii) a statement, report or
other document that is taken, for any purpose, to be part of that report; or
(c) notifying ASIC of a matter under
section 311; or
(d) a disclosure made by the auditor
in response to a notice given to the auditor under subsection 30A(1) or 225A(5)
of the ASIC Act.
Note: If the auditor is an audit company, the
company has qualified privilege under this subsection in respect of statements
made, and notices given, by individuals on behalf of the company if those
statements and notices can be properly attributed to the company.
Qualified privilege for registered company auditor
acting on behalf of audit company
(2) If the auditor is an audit company, a
registered company auditor acting on behalf of the company has qualified
privilege in respect of:
(a) a statement that the registered
company auditor makes (orally or in writing) in the course of the performance,
on the behalf of the company, of the company’s duties as auditor; or
(b) a statement that the registered
company auditor makes (orally or in writing), on behalf of the company, on:
(i) a directors’ report
under section 298 or 306; or
(ii) any statement, report
or other document that is taken, for any purpose, to be part of that report; or
(c) a notification of a matter that
the registered company auditor gives ASIC, on behalf of the company, under
section 311; or
(d) a disclosure made by the
registered company auditor in response to a notice given to the audit company
under subsection 225A(5) of the ASIC Act.
Extent of auditor’s duties—answering questions put to
auditor by members
(3) For the purposes of this section, an
auditor’s duties as auditor include:
(a) answering questions put to the
auditor (or the auditor’s representative) at an AGM; and
(b) providing answers to questions
that are submitted to the auditor under section 250PA.
Qualified privilege for person representing auditor at
AGM
(4) A person who represents an auditor at an
AGM has qualified privilege in respect of any statement that the person makes
in the course of representing the auditor at that AGM.
Qualified privilege for subsequent publication
(5) A person has qualified privilege in
respect of the publishing of a document that:
(a) is prepared by an auditor in the
course of the auditor’s duties; or
(b) required by or under this Act to
be lodged (whether or not the document has been lodged).
(6) A person has qualified privilege in
respect of the publishing of any statement:
(a) made by an auditor as mentioned in
subsection (1); or
(b) made by a registered company
auditor as mentioned in subsection (2); or
(c) made by a person as mentioned in subsection (4).
Division 2A—Conditions on registration of auditors
1289A
ASIC may impose conditions on registration
(1) Under this section, ASIC may impose only
conditions of a kind specified in the regulations.
(2) Subject to this section, ASIC may, at any
time, by giving written notice to a person registered as an auditor:
(a) impose conditions, or additional
conditions, on their registration; and
(b) vary or revoke conditions imposed
on their registration.
(3) ASIC may do so:
(a) on its own initiative; or
(b) if the registered company auditor
lodges with ASIC an application for ASIC to do so, which is accompanied by the
documents, if any, required by regulations made for the purposes of this
paragraph.
Note: For fees in respect of lodging applications,
see Part 9.10.
(4) Except where conditions are varied on the
application of the registered company auditor, ASIC may only impose conditions
or additional conditions, or vary the conditions, on registration after giving
the auditor an opportunity:
(a) to appear, or be represented, at a
hearing before ASIC that takes place in private; and
(b) to make submissions to ASIC in
relation to the matter.
This subsection does not apply to ASIC imposing conditions
at the time when the applicant is registered.
Division 3—Cancellation or suspension of registration
1290
Cancellation at request of registered person
(1) Where a person who is registered as an
auditor, as a liquidator, as a liquidator of a specified body corporate or as
an official liquidator requests ASIC to cancel his or her registration, ASIC
may cancel the registration of that person as an auditor, as a liquidator, as a
liquidator of that body corporate or as an official liquidator, as the case may
be.
(2) A decision of ASIC under subsection (1)
to cancel the registration of a person as an auditor, as a liquidator, as a
liquidator of a specified body corporate or as an official liquidator comes
into effect as soon as practicable upon the making of the decision.
1290A
Cancellation on certain grounds
(1) If a person who is registered as a
liquidator, as a liquidator of a specified body corporate or as an official
liquidator:
(a) becomes an insolvent under
administration; or
(b) becomes disqualified from managing
corporations under Part 2D.6; or
(c) contravenes subsection 1284(1);
ASIC may cancel the registration of that person as a
liquidator, as a liquidator of that body corporate or as an official
liquidator, as the case may be.
(2) If ASIC decides under subsection (1)
to cancel the registration of a person as a liquidator, as a liquidator of a
specified body corporate or as an official liquidator:
(a) ASIC must, not later than 14 days
after the decision, give the person a written notice:
(i) setting out the
decision; and
(ii) the reasons for it;
and
(b) the decision comes into effect at
the end of the day on which that notice is given to the person.
(3) A failure of ASIC to comply with
subsection (2) does not affect the validity of the decision.
(4) Subsection (1) does not limit section 1291
or 1292.
(5) Sections 1291 and 1292 do not limit
subsection (1) of this section.
1291
Official liquidators
(1) ASIC may, at any time, cancel, or suspend
for a specified period, the registration as an official liquidator of a person
who is so registered.
(2) ASIC may, at any time, require a person
registered as an official liquidator to give an undertaking to refrain from
engaging in specified conduct except on specified conditions.
(3) Where ASIC decides to exercise a power
under subsection (1) or (2), ASIC must, not later than 14 days after the
decision, give to the person a notice in writing setting out the decision and
the reasons for it, but the validity of the decision is not affected by failure
of ASIC to do so.
(4) A decision of ASIC under subsection (1)
to cancel or suspend the registration of a person as an official liquidator
comes into effect at the end of the day on which there is given to the person a
notice of the decision, being a notice of the kind referred to in subsection (3).
1292
Powers of Board in relation to auditors and liquidators
(1) The Board may, if it is satisfied on an
application by ASIC or APRA for a person who is registered as an auditor to be
dealt with under this section that, before, at or after the commencement of
this section:
(a) the person has:
(ia) contravened section 324DB;
or
(i) contravened section 1287A;
or
(ia) failed to comply with a
condition of the person’s registration as an auditor; or
(ii) ceased to be resident
in Australia; or
(b) the person either:
(i) has not performed any
audit work during a continuous period of not less than 5 years; or
(ii) has not performed any
significant audit work during a continuous period of not less than 5 years;
and, as a result, has ceased to
have the practical experience necessary for carrying out audits for the
purposes of this Act; or
(d) the person has failed, whether in
or outside this jurisdiction, to carry out or perform adequately and properly:
(i) the duties of an
auditor; or
(ii) any
duties or functions required by an Australian law to be carried out or
performed by a registered company auditor;
or
is otherwise not a fit and proper person to remain registered as an auditor;
by order, cancel, or suspend for a specified period, the
registration of the person as an auditor.
(1A) In determining for the purposes of subparagraph (1)(b)(ii)
whether audit work performed by a person is significant, have regard to:
(a) the nature of the audit; and
(b) the extent to which the person was
involved in the audit; and
(c) the level of responsibility the
person assumed in relation to the audit.
(2) The Board may, if it is satisfied on an
application by ASIC or APRA for a person who is registered as a liquidator to
be dealt with under this section that, before, at or after the commencement of
this section:
(a) the person has:
(i) contravened section 1288;
or
(ii) ceased to be resident
in Australia; or
(d) that the person has failed,
whether in or outside this jurisdiction, to carry out or perform adequately and
properly:
(i) the duties of a
liquidator; or
(ii) any
duties or functions required by an Australian law to be carried out or
performed by a registered liquidator;
or
is otherwise not a fit and proper person to remain registered as a liquidator;
by order, cancel, or suspend for a specified period, the
registration of the person as a liquidator.
(3) The Board may, if it is satisfied on an
application by ASIC for a person who is registered as a liquidator of a
specified body corporate to be dealt with under this section that, before, at
or after the commencement of this section:
(a) the person has:
(i) contravened subsection
1288(5); or
(ii) ceased to be resident
in Australia; or
(d) that
the person has failed, whether in or outside this jurisdiction, to carry out
adequately and properly the duties of a liquidator in respect of the winding up
of that body corporate or is otherwise not a fit and proper person to remain
registered as a liquidator of that body corporate;
by order, cancel, or suspend for a specified period, the
registration of the person as a liquidator of that body corporate.
(4) Where:
(a) ASIC applies to the Board for a
person who is registered as an auditor to be dealt with under this section; and
(b) the
person is also registered as a liquidator or as a liquidator of a specified
body corporate;
the Board may, in addition to making an order under subsection (1),
if it is satisfied as to any of the matters specified in paragraph (2)(a)
or (d) or (3)(a) or (d), make an order cancelling, or suspending for a
specified period, the registration of the person as a liquidator or as a
liquidator of that body, as the case may be, and, where the Board makes such an
order, the order is, for the purposes of this Division, taken to have been made
under subsection (2) or (3), as the case may be.
(5) Where:
(a) ASIC applies to the Board for a
person who is registered as a liquidator to be dealt with under this section;
and
(b) the
person is also registered as an auditor or as a liquidator of a specified body
corporate;
the Board may, in addition to making an order under subsection (2),
if it is satisfied as to any of the matters specified in paragraph (1)(a)
or (d) or (3)(a) or (d), make an order cancelling, or suspending for a
specified period, the registration of the person as an auditor or as a
liquidator of that body, as the case may be, and, where the Board makes such an
order, the order is, for the purposes of this Division, taken to have been made
under subsection (1) or (3), as the case may be.
(6) Where:
(a) ASIC applies to the Board for a
person who is registered as a liquidator of a specified body corporate to be
dealt with under this section; and
(b) the
person is also registered as an auditor or as a liquidator;
the Board may, in addition to making an order under subsection (3),
if it is satisfied as to any of the matters specified in paragraph (1)(a)
or (d) or (2)(a) or (d), make an order cancelling, or suspending for a
specified period, the registration of the person as an auditor or as a
liquidator, as the case may be, and, where the Board makes such an order, the
order is, for the purposes of this Division, taken to have been made under subsection (1)
or (2), as the case may be.
(7) The Board must, if it is satisfied on an application
by ASIC or APRA for a prescribed person to be dealt with under this section:
(a) that the person is disqualified
from managing corporations under Part 2D.6; or
(b) that
the person is incapable, because of mental infirmity, of managing his or her
affairs;
by order, cancel each prescribed registration of the
person.
(8) In subsection (7) and in this
subsection:
prescribed person means a person who is
registered as an auditor, as a liquidator or as a liquidator of a specified
body corporate.
prescribed registration, in relation to a
prescribed person, means a registration of the person as an auditor, as a
liquidator or as the liquidator of a specified body corporate.
(9) Where, on an application by ASIC or APRA
for a person who is registered as an auditor, as a liquidator or as a
liquidator of a specified body corporate to be dealt with under this section,
the Board is satisfied that the person has failed to carry out or perform
adequately and properly any of the duties or functions mentioned in paragraph (1)(d),
(2)(d) or (3)(d), as the case may be, or is otherwise not a fit and proper
person to remain registered as an auditor, liquidator or liquidator of that
body, as the case may be, the Board may deal with the person in one or more of
the following ways:
(a) by admonishing or reprimanding the
person;
(b) by requiring the person to give an
undertaking to engage in, or to refrain from engaging in, specified conduct;
(c) by
requiring the person to give an undertaking to refrain from engaging in
specified conduct except on specified conditions;
and, if a person fails to give an undertaking when
required to do so under paragraph (b) or (c), or contravenes an
undertaking given pursuant to a requirement under that paragraph, the Board
may, by order, cancel, or suspend for a specified period, the registration of
the person as an auditor, as a liquidator or as a liquidator of a specified
body corporate, as the case may be.
(10) The Board’s powers under subsection (9)
may be exercised in addition to, or in substitution for, the exercise of the
Board’s powers to cancel or suspend a registration under subsections (1)
to (6).
(11) The Board may exercise any of its powers
under this Division in relation to a person as a result of conduct engaged in
by the person whether or not that conduct constituted or might have constituted
an offence, and whether or not any proceedings have been brought or are to be
brought in relation to that conduct.
(12) This section has effect subject to section 1294.
1294
Board to give opportunity for hearing etc.
(1) The Board
must not:
(a) cancel or suspend the registration
of a person as an auditor, as a liquidator or as a liquidator of a specified
body corporate; or
(b) deal
with a person in any of the ways mentioned in subsection 1292(9);
unless the Board has given the person an opportunity to
appear at a hearing held by the Board and to make submissions to, and adduce
evidence before, the Board in relation to the matter.
(2) Where subsection (1) requires the
Board to give a person an opportunity to appear at a hearing and to make
submissions to, and bring evidence before, the Board in relation to a matter,
the Board must give ASIC and APRA an opportunity to appear at the hearing and
to make submissions to, and bring evidence before, the Board in relation to the
matter.
1294A
Pre‑hearing conference
(1) If subsection 1294(1) requires the Board
to give a person an opportunity to appear at a hearing and to make submissions
to, and bring evidence before, the Board in relation to a matter, the
Chairperson of the Board may, if he or she considers that it would assist in
the conduct of the hearing to do so, convene one or more conferences with the
person.
(2) The Chairperson of the Board may allow
any of the following persons to attend a conference:
(a) a representative of ASIC;
(b) a representative of APRA;
(c) any other person.
(3) The Chairperson of the Board must give
written notice of a conference to ASIC and APRA at least 14 days before the
conference.
(4) At a conference, the Chairperson of the
Board may, on behalf of the Board:
(a) fix a date or dates for the
hearing; and
(b) give directions about the time
within which submissions are to be made to the Board in relation to the matter;
and
(c) give directions about the time
within which evidence is to be brought before the Board in relation to the
matter; and
(d) give directions as to the
procedure to be followed at or in connection with the hearing.
1295
Board may remove suspension
(1) Where a registration of a person is
suspended, the Board may, on an application by the person or of its own motion,
by order, terminate the suspension.
(2) An order under subsection (1) has
effect accordingly.
1296
Notice of Board’s decision
(1) Where the Board decides to exercise any
of its powers under section 1292 in relation to a person, or decides that
it is required to make an order under subsection 1292(7) in relation to a
person, the Board must, within 14 days after the decision:
(a) give to the person a notice in
writing setting out the decision and the reasons for it; and
(b) lodge a copy of the notice
referred to in paragraph (a); and
(c) cause to be published in the Gazette
a notice in writing setting out the decision.
(1A) If:
(a) the Board decides to exercise the power,
or makes the order, on the basis of particular conduct engaged in by the
person; and
(b) the person engaged in that conduct
in the course of participating in the conduct of an audit on behalf of an audit
firm or audit company;
the notice under paragraph (1)(c) may identify the
audit firm or audit company.
(1B) If the Board:
(a) decides to exercise any of its
powers under section 1292 in relation to a person; or
(b) decides that it is required to
make an order under subsection 1292(7) in relation to a person;
then, in addition to meeting the requirements of
subsection (1), the Board may take such steps as it considers reasonable
and appropriate to publicise:
(c) the decision; and
(d) the reasons for the decision.
Without limiting this, the Board may make the decision and
reasons available on the Internet.
(1C) If:
(a) the Board decides to exercise the
power under section 1292, or makes the order under subsection 1292(7), on
the basis of particular conduct engaged in by the person; and
(b) the person engaged in that conduct
in the course of participating in the conduct of an audit on behalf of an audit
firm or audit company;
a publication under subsection (1B) may identify the
audit firm or audit company.
(2) Where the Board decides to refuse to
exercise its powers under section 1292 in relation to a person, or decides
that it is not required to make an order under subsection 1292(7) in relation
to a person, the Board must, within 14 days after the decision:
(a) give to the person a notice in writing
setting out the decision and the reasons for it; and
(b) lodge a copy of the notice
referred to in paragraph (a).
(3) The validity of a decision of the Board
is not affected by failure of the Board to comply with subsection (1) or
(2), as the case requires, in relation to the decision.
1297
Time when Board’s decision comes into effect
(1) Subject to subsection (2) and to
sections 41 and 44A of the Administrative Appeals Tribunal Act 1975, an
order made by the Board cancelling or suspending the registration of a person
as an auditor, as a liquidator or as a liquidator of a specified body corporate
comes into effect:
(a) at the end of the day on which
there is given to the person a paragraph 1296(1)(a) notice of the decision
pursuant to which the order is made; or
(b) at the end of such longer period
(not exceeding 90 days) as the Board determines.
(2) Where the Board makes an order of a kind
referred to in subsection (1), it may, in order to enable an application
to be made to the Tribunal for review of the decision to make the order,
determine that the order is not to come into effect until a specified time or
until the happening of a specified event.
(3) The Board may at any time vary or revoke
a determination made under subsection (2), including such a determination
that has been varied at least once before.
(4) A determination in force under subsection (2)
has effect accordingly.
1298
Effect of suspension
A person whose registration as an
auditor, as a liquidator, as a liquidator of a specified body corporate or as
an official liquidator is suspended is, except for the purposes of subsections
1285(2) and 1286(3), section 1287 (other than paragraphs 1287(1)(a),
(2)(a) and (3)(a)), sections 1287A and 1288 and this Division, taken not
to be registered as an auditor, liquidator, liquidator of that body corporate
or official liquidator, as the case may be, so long as the registration is
suspended.
1298A
Transfer of books
(1) If:
(a) the registration of a person as a
liquidator, as a liquidator of a specified body corporate or as an official
liquidator is cancelled or suspended; and
(b) immediately before the
cancellation or suspension, as the case may be, came into effect, the person
had in his or her possession one or more books relating to an externally
administered body corporate; and
(c) any of the following subparagraphs
applies:
(i) the person was a
liquidator of the externally administered body corporate;
(ii) the person was a
receiver, or a receiver and manager, of property of the externally administered
body corporate;
(iii) the person was the
administrator of the externally administered body corporate;
(iv) the person was the
administrator of a deed of company arrangement for the externally administered
body corporate; and
(d) another person is or becomes:
(i) a liquidator of the
externally administered body corporate; or
(ii) a receiver, or a
receiver and manager, of property of the externally administered body
corporate; or
(iii) the administrator of
the externally administered body corporate; or
(iv) the administrator of a
deed of company arrangement for the externally administered body corporate;
the first‑mentioned person must, as soon as
practicable, transfer those books to that other person.
(2) If the books are in electronic form, they
may be transferred electronically.
Part 9.2A—Authorised audit companies
Division 1—Registration
1299A
Application for registration as authorised audit company
(1) A company may apply to ASIC for
registration as an authorised audit company.
(2) An application under this section:
(a) must contain such information as
is prescribed in the regulations; and
(b) must be in the prescribed form.
1299B
Eligibility for registration as an authorised audit company
A company is eligible to be registered
as an authorised audit company if and only if:
(a) each of the directors of the
company:
(i) is a registered
company auditor; and
(ii) is not disqualified
from managing a corporation under Part 2D.6; and
(b) each share in the company is held and
beneficially owned by a person who is:
(i) an individual; or
(ii) the legal personal
representatives of an individual; and
(c) a majority of the votes that may
be cast at a general meeting of the company attach to shares in the company
that are held and beneficially owned by individuals who are registered company
auditors; and
(d) ASIC is satisfied that the company
has adequate and appropriate professional indemnity insurance for claims that
may be made against the company in relation to the audit of companies and
registered schemes for the purposes of this Act; and
(e) the company is not an externally‑administered
body corporate.
1299C
Registration as authorised audit company
(1) ASIC must grant the application and
register the company as an authorised audit company if the company is eligible
to be registered as an authorised audit company. Otherwise ASIC must refuse the
application.
(2) If ASIC grants the company’s application,
ASIC must issue to the company a certificate by ASIC stating that the company
has been registered as an authorised audit company and specifying the day on
which the application was granted.
(3) The company’s registration under this
section takes effect at the beginning of the day specified in the certificate
as the day on which the application for registration was granted and remains in
force until:
(a) the registration is cancelled by
ASIC; or
(b) the company is wound up.
(4) ASIC must not refuse to register the
company as an authorised audit company unless ASIC has given the company an
opportunity to be represented at a hearing before ASIC and to make submissions
and give evidence to ASIC in relation to the matter.
(5) If ASIC refuses the company’s
application, ASIC must, not later than 14 days after the decision, give to the
company a notice in writing setting out the decision and the reasons for it.
1299D
Registration may be subject to conditions
(1) The company’s registration as an
authorised audit company is subject to:
(a) the provisions of this Part; and
(b) the conditions or restrictions
specified in the regulations; and
(c) any other conditions or
restrictions determined by ASIC.
(2) ASIC may determine conditions or
restrictions for the purposes of paragraph (1)(c) either at the time when
the company is registered as an authorised audit company or subsequently.
(3) ASIC determines a condition or
restriction by written notice to the company.
1299E
Register of authorised audit companies
(1) ASIC must keep a Register of Authorised
Audit Companies for the purposes of this Act.
(2) In relation to each authorised audit
company, ASIC must enter in the Register:
(a) the name of the company; and
(b) the company’s ACN or ABN; and
(c) the day on which the company’s
registration under section 1299C took effect; and
(d) the address of the company’s
registered office; and
(e) the address of the principal place
where the company practises as an auditor and the address of the other places
(if any) at which the company so practises; and
(f) the name and address of:
(i) each director of the
company; and
(ii) each person who
performs a chief executive officer function (within the meaning of section 295A)
in relation to the company; and
(g) the details of any conditions or
restrictions determined under paragraph 1299D(1)(c) in relation to the
registration; and
(h) details of any suspension of the
registration.
(3) ASIC may enter in the Register in
relation to the company any other details that ASIC considers appropriate.
(4) If a company ceases to be registered as an
authorised audit company, ASIC must remove the entry in relation to the company
from the Register.
(5) A person may inspect and make copies of,
or take extracts from, the Register.
1299F
Notification of certain matters
(1) An authorised audit company must notify
ASIC if a condition or restriction to which the company’s registration is
subject is contravened.
(2) The notice under subsection (1)
must:
(a) set out details of the
contravention; and
(b) be given within 14 days after the
company becomes aware of the contravention; and
(c) be lodged with ASIC in the
prescribed form.
(3) An authorised audit company must notify
ASIC if:
(a) details of a matter are required
by subsection 1299E(2) to be entered in the Register of Authorised Audit
Companies in relation to the company; and
(b) a change occurs in that matter
while the company is registered as an authorised audit company.
(4) The notice under subsection (3)
must:
(a) set out details of the change; and
(b) be given within 28 days after the
change occurs; and
(c) be lodged with ASIC in the
prescribed form.
(5) A company that applies for registration
as an authorised audit company must notify ASIC if:
(a) details of a matter would be
required by subsection 1299E(2) to be entered in the Register of Authorised
Audit Companies in relation to the company if it were to be registered; and
(b) a change occurs in that matter
before the application is granted or rejected.
(6) The notice under subsection (5)
must:
(a) set out details of the change; and
(b) be given within 28 days after the
change occurs; and
(c) be lodged with ASIC in the
prescribed form.
1299G
Annual statements by authorised audit company
(1) A company that is an authorised audit
company must, within one month after the end of:
(a) the period of 12 months beginning
on the day on which the company became registered as an authorised audit
company; and
(b) each subsequent period of 12
months;
lodge with ASIC a statement in respect of that period.
(1A) A statement
under subsection (1):
(a) must contain such information as
is prescribed in the regulations; and
(b) must be in the prescribed form.
(2) ASIC may, on the application of an
authorised audit company made before the end of the period for lodging a
statement under subsection (1), extend, or further extend, that period.
(3) An offence based on subsection (1)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) A director of a company must take all
reasonable steps to comply with, or to secure compliance with, subsection (1).
Division 2—Cancellation or suspension of registration
1299H
Cancellation at request of registered person
(1) ASIC may cancel a company’s registration
as an authorised audit company if the company requests ASIC to cancel the
registration.
(2) ASIC must take the steps necessary to
cancel the registration as soon as practicable after the request is made.
1299I
Cancellation or suspension in other cases
ASIC may cancel or suspend a company’s
registration as an authorised audit company if:
(a) the company ceases to be eligible
to be registered as an authorised audit company; or
(b) the company fails to meet
conditions or observe restrictions imposed on the company’s registration as an
authorised audit company.
Note: See section 1299K for when the
cancellation takes effect.
1299J
Notice of cancellation or suspension
(1) If ASIC decides to cancel or suspend a
company’s registration as an authorised audit company under section 1299I,
ASIC must, within 14 days after the decision:
(a) give to the company written notice
setting out the decision and the reasons for it; and
(b) publish written notice of the
decision in the Gazette.
(2) The validity of a decision by ASIC is not
affected by a failure by ASIC to comply with subsection (1) in relation to
the decision.
1299K
Time when ASIC’s decision comes into effect
(1) A decision by ASIC to cancel or suspend a
company’s registration as an authorised audit company comes into effect at the
end of the day on which the company is given notice of the decision under
paragraph 1299J(1)(a). This subsection has effect subject to subsection (2)
and to sections 41 and 44A of the Administrative Appeals Tribunal Act
1975.
(2) ASIC may, in order to enable an
application to be made to the Tribunal for review of the decision to cancel or
suspend the registration, determine that the decision to cancel or suspend the
company’s registration as an authorised audit company is not to come into
effect until:
(a) a specified time; or
(b) the happening of a specified
event.
(3) ASIC may at any time vary or revoke a
determination made under subsection (2), including such a determination
that has been varied at least once before.
(4) A determination in force under subsection (2)
has effect accordingly.
1299L
Effect of suspension
A company whose registration as an
authorised audit company is suspended is, except for the purposes of subsection
1299E(4), sections 1299F and 1299G and this Division, taken not to be
registered as an authorised audit company so long as the registration is
suspended.
1299M
Effect of cancellation
If a company’s registration as an
authorised audit company is cancelled (whether under section 1299H or
1299I), each appointment of the company as auditor for a company or registered
scheme for the purposes of this Act that is in force on the day on which the
cancellation decision takes effect is terminated at the end of that day.
Note: This means that the authorised audit company
ceases to be auditor without resigning and that the position of auditor for the
company or scheme will immediately become vacant unless there is another
auditor who has been appointed, and who can continue to act, as auditor for the
company or registered scheme.
Part 9.3—Books
1300
Inspection of books
(1) A book that is by this Act required to be
available for inspection must, subject to and in accordance with this Act, be
available for inspection at the place where, in accordance with this Act, it is
kept and at all times when the registered office in this jurisdiction of the
body corporate concerned is required to be open to the public.
(2) If any register kept by a company or a
foreign company for the purposes of this Act is kept at a place other than the
registered office of the company or foreign company, that place must be open to
permit the register to be inspected during the same hours as those during which
the registered office of the company or foreign company is required to be open
to the public.
(2A) If a person asks a proprietary company in
writing to inspect a particular book of the company that the person has a right
to inspect, the company must make it available within 7 days, for inspection by
the person at the place where it is required to be kept.
(2B) An offence based on subsection (2A) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person permitted by this Act to inspect
a book may make copies of, or take extracts from, the book and any person who
refuses or fails to allow a person so permitted to make a copy of, or take an
extract from, the book is guilty of an offence.
(4) An offence based on subsection (3)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
1301
Location of books on computers
(1) This section applies if:
(a) a corporation records, otherwise
than in writing, matters (the stored matters) this Act requires
to be contained in a book; and
(b) the record of the stored matters
is kept at a place (the place of storage) other than the place (the
place of inspection) where the book is, apart from this section,
required to be kept; and
(c) at the place of inspection means
are provided by which the stored matters are made available for inspection in
written form; and
(d) the corporation has lodged a
notice:
(i) stating that this
section is to apply in respect of:
(A) except
where sub-subparagraph (B) applies—the book; or
(B) if the
stored matters are only some of the information that is required to be
contained in the book—the book and matters that are of the same kind as the
stored matters; and
(ii) specifying the
situation of the place of storage and the place of inspection.
(2) Subject to subsection (4), the
corporation is taken to have complied with the requirements of this Act as to
the location of the book, but only in so far as the book is required to contain
the stored matters.
(3) Subject to subsection (4), for the
purposes of the application of subsection 1085(3) and section 1300 in
relation to the corporation and the book, the book is taken to be kept at the
place of inspection, even though the record of the stored matters is kept at
the place of storage.
(4) If:
(a) the situation of the place of
storage or the place of inspection changes; and
(b) the
corporation does not lodge notice of the change within 14 days after the
change;
this section, as it applies to the corporation because of
the lodging of the notice referred to in paragraph (1)(d), ceases to so
apply at the end of that period of 14 days.
1302
Location of registers
(1) A register that is required by section 271
to be kept by a company must be kept at the registered office or at an office
at the principal place of business in this jurisdiction of the company but:
(a) if the work of making up the
register is done at another office of the company in this jurisdiction, it may
be kept at that other office; or
(b) if the company arranges with some
other person to make up the register on its behalf and the office of that other
person at which the work is done is in this jurisdiction, it may be kept at
that office; or
(c) if ASIC approves, it may be kept
at another office in this jurisdiction, being an office of the company or of
another person.
(3) If default is made in complying with subsection (1)
in its application to any register of a company, the company, any officer or
employee of the company who is in default, and any person who has arranged with
the company to make up the register on its behalf and is in default, are each
guilty of an offence.
(4) A company must, within 7 days after any
register of the company to which subsection (1) applies is first kept at
an office other than the registered office or the principal office, as the case
may be, lodge notice of the address of the office where the register is kept
and must, within 7 days after any change in the place at which the register is
kept, lodge notice of the change.
(5) If default is made in complying with subsection (4)
in its application to any register of a company, the company and any officer of
the company who is in default are each guilty of an offence.
(6) An offence based on subsection (3)
or (5) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7) In this section, unless the contrary
intention appears, company includes a registered body.
1303
Court may compel compliance
If any person in contravention of this
Act refuses to permit the inspection of any book or to supply a copy of any
book, the Court may by order compel an immediate inspection of the book or
order the copy to be supplied.
1304
Translations of instruments
(1) Where under this Act a person is required
to lodge an instrument or a certified copy of an instrument and the instrument
is not written in English, the person must lodge at the same time a certified
translation of the instrument into English.
(2) Where under this Act a body corporate is
required to make an instrument available for inspection and the instrument is
not written in English, the body corporate must keep at its registered office
or, if it does not have a registered office, at its principal office in this
jurisdiction, a certified translation of the instrument into English.
(3) In this section, instrument
includes any certificate, contract or other document.
1305
Admissibility of books in evidence
(1) A book kept by a body corporate under a
requirement of this Act is admissible in evidence in any proceeding and is
prima facie evidence of any matter stated or recorded in the book.
(2) A document purporting to be a book kept
by a body corporate is, unless the contrary is proved, taken to be a book kept
as mentioned in subsection (1).
1306
Form and evidentiary value of books
(1) A book that is required by this Act to be
kept or prepared may be kept or prepared:
(a) by making entries in a bound or
looseleaf book; or
(b) by recording or storing the
matters concerned by means of a mechanical, electronic or other device; or
(c) in any other manner approved by
ASIC.
(2) Subsection (1) does not authorise a
book to be kept or prepared by a mechanical, electronic or other device unless:
(a) the matters recorded or stored
will be capable, at any time, of being reproduced in a written form; or
(b) a reproduction of those matters is
kept in a written form approved by ASIC.
(3) A corporation must take all reasonable
precautions, including such precautions (if any) as are prescribed, for
guarding against damage to, destruction of or falsification of or in, and for
discovery of falsification of or in, any book or part of a book required by
this Act to be kept or prepared by the corporation.
(4) Where a corporation records or stores any
matters by means of a mechanical, electronic or other device, any duty imposed
by this Act to make a book containing those matters available for inspection or
to provide copies of the whole or a part of a book containing those matters is
to be construed as a duty to make the matters available for inspection in
written form or to provide a document containing a clear reproduction in
writing of the whole or part of them, as the case may be.
(4A) The regulations may provide for how up to
date the information contained in an instrument prepared for the purposes of subsection (4)
must be.
(5) If:
(a) because of this Act, a book that
this Act requires to be kept or prepared is prima facie evidence of a
matter; and
(b) the
book, or a part of the book, is kept or prepared by recording or storing
matters (including that matter) by means of a mechanical, electronic or other
device;
a written reproduction of that matter as so recorded or
stored is prima facie evidence of that matter.
(6) A writing that purports to reproduce a
matter recorded or stored by means of a mechanical, electronic or other device
is, unless the contrary is established, taken to be a reproduction of that
matter.
1307
Falsification of books
(1) An
officer, former officer, employee, former employee, member or former member of
a company who engages in conduct that results in the concealment, destruction,
mutilation or falsification of any securities of or belonging to the company or
any books affecting or relating to affairs of the company is guilty of an
offence.
(2) Where matter that is used or intended to
be used in connection with the keeping of any books affecting or relating to
affairs of a company is recorded or stored in an illegible form by means of a
mechanical device, an electronic device or any other device, a person who:
(a) records or stores by means of that
device matter that the person knows to be false or misleading in a material
particular; or
(b) engages in conduct that results in
the destruction, removal or falsification of matter that is recorded or stored
by means of that device, or has been prepared for the purpose of being recorded
or stored, or for use in compiling or recovering other matter to be recorded or
stored by means of that device; or
(c) having a duty to record or store
matter by means of that device, fails to record or store the matter by means of
that device:
(i) with intent to falsify
any entry made or intended to be compiled, wholly or in part, from matter so
recorded or stored; or
(ii) knowing
that the failure so to record or store the matter will render false or
misleading in a material particular other matter so recorded or stored;
contravenes this subsection.
(3) It is a defence to a charge arising under
subsection (1) or (2) if the defendant proves that he, she or it acted
honestly and that in all the circumstances the act or omission constituting the
offence should be excused.
Note: A defendant bears a legal burden in relation
to the matter mentioned in subsection (3), see section 13.4 of the Criminal
Code.
Part 9.4—Offences
Division 1A—Application of the Criminal Code
1308A
Application of Criminal Code
Subject to this Act, Chapter 2 of
the Criminal Code applies to all offences against this Act.
Division 1—Specific offences
1308
False or misleading statements
(1) A corporation must not advertise or
publish:
(a) a statement of the amount
of its capital that is misleading; or
(b) a statement in which the
total of all amounts paid and unpaid on shares in the company is stated but the
amount of paid up capital or the amount of any charge on uncalled capital is
not stated.
(1A) An offence based on subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) A person who, in a document required by
or for the purposes of this Act or lodged with or submitted to ASIC, makes or
authorises the making of a statement that to the person’s knowledge is false or
misleading in a material particular, or omits or authorises the omission of any
matter or thing without which the document is to the person’s knowledge
misleading in a material respect, is guilty of an offence.
(3) A person who makes or authorises the
making of a statement that is based on information that to the person’s
knowledge:
(a) is false or misleading in a
material particular; or
(b) has
omitted from it a matter or thing the omission of which renders the information
misleading in a material respect;
is, for the purposes of subsection (2), taken to have
made or authorised the making of a statement that to the person’s knowledge was
false or misleading in a material particular.
(3A) A person is not liable to be proceeded
against for an offence in consequence of a regulation made under section 1364
as well as for an offence against subsection (2) of this section.
(4) A person who, in a document required by
or for the purposes of this Act or lodged:
(a) makes or authorises the making of
a statement that is false or misleading in a material particular; or
(b) omits
or authorises the omission of any matter or thing without which the document is
misleading in a material respect;
without having taken reasonable steps to ensure that the
statement was not false or misleading or to ensure that the statement did not
omit any matter or thing without which the document would be misleading, as the
case may be, is guilty of an offence.
(5) A person who makes or authorises the
making of a statement without having taken reasonable steps to ensure that the
information on which the statement was based:
(a) was not false or misleading in a
material particular; and
(b) did
not have omitted from it a matter or thing the omission of which would render
the information misleading in a material respect;
is, for the purposes of subsection (4), taken to have
made or authorised the making of a statement without having taken reasonable
steps to ensure that the statement was not false or misleading.
(6) For the purposes of subsections (2)
and (4), where:
(a) at a meeting, a person votes in
favour of a resolution approving, or otherwise approves, a document required by
or for the purposes of this Act or required to be lodged; and
(b) the
document contains a statement that, to the person’s knowledge, is false or
misleading in a material particular, or omits any matter or thing without which
the document is, to the person’s knowledge, misleading in a material respect;
the person is taken to have authorised the making of the
statement or the omission of the matter or thing.
(7) For the purposes of this section, a
statement, report or other document that:
(a) relates to affairs of a company or
of a subsidiary of a company; and
(b) is not itself required by this Act
to be laid before the company in general meeting; and
(c) is
attached to or included with a report of the directors provided under section 314
to members of the company or laid before the company at an annual general
meeting of the company;
is taken to be part of the report referred to in paragraph (c).
(8) A person must not, in connection with an
application for an Australian CS facility licence, Australian financial
services licence or Australian market licence:
(a) make a statement that is false or
misleading in a material particular knowing it to be false or misleading; or
(b) omit to state any matter or thing
knowing that because of that omission the application is misleading in a material
respect.
(9) For the purposes of this section:
(a) a notice under subsection 708AA(2),
708A(5), 1012DAA(2) or 1012DA(5) is taken to be a notice required for the
purposes of this Act; and
(b) a notice under subsection 708AA(2),
708A(5), 1012DAA(2) or 1012DA(5) is taken to be misleading in a material
respect if it fails to comply with paragraph 708AA(7)(d), 708A(6)(e),
1012DAA(7)(e) or 1012DA(6)(f).
1309
False information etc.
(1) An officer or employee of a corporation
who makes available or gives information, or authorises or permits the making
available or giving of information, to:
(a) a director, auditor, member,
debenture holder or trustee for debenture holders of the corporation; or
(b) if the corporation is taken for
the purposes of Chapter 2M to be controlled by another corporation—an
auditor of the other corporation; or
(c) an operator of a financial market
(whether the market is operated in Australia or elsewhere) or an officer of
such a market;
being information, whether in documentary or any other
form, that relates to the affairs of the corporation and that, to the knowledge
of the officer or employee:
(d) is false or misleading in a
material particular; or
(e) has
omitted from it a matter or thing the omission of which renders the information
misleading in a material respect;
is guilty of an offence.
(2) An officer or employee of a corporation
who makes available or gives information, or authorises or permits the making
available or giving of information, to:
(a) a director, auditor, member,
debenture holder or trustee for debenture holders of the corporation; or
(b) if the corporation is taken for
the purposes of Chapter 2M to be controlled by another corporation—an
auditor of the other corporation; or
(c) an operator of a financial market
(whether the market is operated in Australia or elsewhere) or an officer of
such a market;
being information, whether in documentary or any other
form, relating to the affairs of the corporation that:
(d) is false or misleading in a
material particular; or
(e) has
omitted from it a matter or thing the omission of which renders the information
misleading in a material respect;
without having taken reasonable steps to ensure that the
information:
(f) was not false or misleading in a
material particular; and
(g) did
not have omitted from it a matter or thing the omission of which rendered the
information misleading in a material respect;
is guilty of an offence.
(3) The references in subsections (1)
and (2) to a person making available or giving, or authorising or permitting
the making available or giving of, information relating to the affairs of a
corporation include references to a person making available or giving, or
authorising or permitting the making available or giving of, information as to
the state of knowledge of that person with respect to the affairs of the
corporation.
(4) Where information is made available or
given to a person referred to in paragraph (1)(a), (b) or (c) or (2)(a),
(b) or (c) in response to a question asked by that person, the question and the
information are to be considered together in determining whether the
information was false or misleading.
(5) For the purposes of this section:
(a) a notice under subsection 708AA(2),
708A(5), 1012DAA(2) or 1012DA(5) is taken to be a notice required for the
purposes of this Act; and
(b) a notice under subsection 708AA(2),
708A(5), 1012DAA(2) or 1012DA(5) is taken to be misleading in a material
respect if it omits information that is excluded information for the purposes of
section 708AA, 708A, 1012DAA or 1012DA.
(6) Paragraphs (1)(a) and (b) do not
apply in relation to a corporation that is an Aboriginal and Torres Strait
Islander corporation.
Note: Similar offences are created in relation to
Aboriginal and Torres Strait Islander corporations under section 561‑5
of the Corporations (Aboriginal and Torres Strait Islander)
Act 2006.
1310
Obstructing or hindering ASIC etc.
A person must not, without lawful
excuse, obstruct or hinder ASIC, or any other person, in the performance or
exercise of a function or power under this Act.
Division 2—Offences generally
1311
General penalty provisions
(1) A person who:
(a) does an act or thing that the
person is forbidden to do by or under a provision of this Act; or
(b) does not do an act or thing that
the person is required or directed to do by or under a provision of this Act;
or
(c) otherwise
contravenes a provision of this Act;
is guilty of an offence by virtue of this subsection,
unless that or another provision of this Act provides that the person:
(d) is guilty of an offence; or
(e) is not guilty of an offence.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Paragraphs (1)(a), (b) and (c) only
apply to a provision in the following list if a penalty, pecuniary or
otherwise, is set out in Schedule 3 for that provision, or for a provision
or provisions in which that provision is included:
(a) Chapters 2A, 2B and 2C;
(b) Parts 2F.2 and 2F.3;
(c) Chapters 2G, 2H, 2J, 2M
(other than Part 2M.4), 2N, 2P and 5A;
(d) Parts 5B.1 and 5B.3;
(da) Chapter 6CA;
(db) Chapter 7;
(dc) Chapter 8;
(e) Chapter 10.
(2) Subject to section 1312, a person
who is guilty of an offence against this Act, whether by virtue of subsection (1)
or otherwise, is punishable, on conviction, by a penalty not exceeding the
penalty applicable to the offence.
(3) Where:
(a) subsection (1) operates in
relation to a provision of this Act so as to make a person guilty of an
offence; or
(b) a
provision of this Act (other than this section) provides that a person is, in
circumstances referred to in the provision, guilty of an offence;
and a penalty, pecuniary or otherwise, is set out in
Schedule 3 for that provision, or for a provision or provisions in which
that provision is included, the penalty applicable to the offence is the
penalty so set out.
(4) Where a provision of this Act (other than
this section) provides that the penalty applicable to a contravention of a
particular provision of this Act is a specified penalty, pecuniary or
otherwise, the penalty applicable to an offence constituted by a contravention
of the particular provision is the specified penalty.
(5) Except as provided in subsection (3)
or (4) or in a provision of this Act (other than this section), the penalty
applicable to the offence is a fine of 5 penalty units.
(6) An offence based on subsection (1)
for which the penalty is set out in subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
1312
Penalties for bodies corporate
Where a body corporate is convicted of
an offence against this Act, the penalty that the court may impose is a fine
not exceeding 5 times the maximum amount that, but for this section, the court
could impose as a pecuniary penalty for that offence.
1313
Penalty notices
(1) Where ASIC has reason to believe that a
person has committed a prescribed offence, ASIC may, subject to subsection (2),
give the person a notice in the prescribed form:
(a) alleging that the person has
committed the prescribed offence and giving the prescribed particulars in
relation to the prescribed offence; and
(b) setting out the prescribed penalty
in respect of the prescribed offence; and
(c) stating:
(i) in the case of a
prescribed offence constituted by a failure to do a particular act or thing:
(A) that the
obligation to do the act or thing continues despite the service of the notice
or the payment of the prescribed penalty; and
(B) that if,
within the period specified in the notice (being a period of at least 21 days),
the person pays the prescribed penalty to the authority specified in the notice
and does the act or thing, no further action will be taken against the person
in relation to the prescribed offence; and
(C) that if,
at the end of the period specified in the notice, the person has not paid the
prescribed penalty to the authority specified in the notice or has not done the
act or thing, proceedings may be instituted against the person; or
(ii) in the case of a
prescribed offence, not being an offence constituted by a failure to do a
particular act or thing:
(A) that if,
within the period specified in the notice (being a period of at least 21 days),
the person pays the prescribed penalty to the authority specified in the
notice, no further action will be taken against the person in relation to the
prescribed offence; and
(B) that if,
at the end of the period specified in the notice, the person has not paid the
prescribed penalty to the authority specified in the notice, proceedings may be
instituted against the person.
(2) Subsection (1) does not empower
ASIC:
(a) to give a person more than one
notice under that subsection in relation to an alleged commission by that
person of a particular prescribed offence; or
(b) to give a person a notice under
that subsection in relation to a prescribed offence unless proceedings could be
instituted against that person for that offence in accordance with section 1316.
(3) A notice under subsection (1) may be
given to a natural person either personally or by post.
(4) Where a notice under subsection (1)
is given to a person in relation to a prescribed offence constituted by a
failure to do a particular act or thing:
(a) if, within the period specified in
the notice, the person pays the prescribed penalty to the authority specified
in the notice, and does the act or thing—no proceedings may be instituted
against the person in respect of the prescribed offence; or
(b) if, at the end of the period
specified in the notice, the person has paid the prescribed penalty to the
authority specified in the notice but has not done the act or thing—no
proceedings may be instituted against the person in respect of the prescribed
offence, but the obligation to do that act or thing continues, and section 1314
applies in relation to the continued failure to do that act or thing as if, on
the day on which the person so paid the prescribed penalty, the person had been
convicted of an offence constituted by a failure to do that act or thing; or
(c) if, at the end of the period
specified in the notice, the person has not paid the prescribed penalty to the
authority specified in the notice but had done the act or thing—proceedings may
be instituted against the person in respect of the prescribed offence; or
(d) if, at the end of the period
specified in the notice, the person has not paid the prescribed penalty to the
authority specified in the notice and has not done the act or thing—the
obligation to do that act or thing continues, and proceedings may be instituted
against the person in respect of the prescribed offence.
(5) Where a notice under subsection (1)
is given to a person in relation to a prescribed offence, not being an offence
constituted by a failure to do a particular act or thing:
(a) if, within the period specified in
the notice, the person pays the prescribed penalty to the authority specified
in the notice—no proceedings may be instituted against the person in respect of
the prescribed offence; or
(b) if, at the end of the period
specified in the notice, the person has not paid the prescribed penalty to the
authority specified in the notice—proceedings may be instituted against the
person in respect of the prescribed offence.
(6) The payment of an amount by a person
pursuant to a notice served on the person under this section in relation to a
prescribed offence is not taken for any purpose to be an admission by that
person of any liability in connection with the alleged commission of the
prescribed offence.
(7) Except as provided by paragraphs (4)(a)
and (b) and (5)(a), this section does not affect the operation of any provision
of this Act, of the regulations, of the rules or of any other Act in relation
to the institution of proceedings in respect of offences that are prescribed
offences for the purposes of this section.
(8) In this section:
authority includes a person.
prescribed offence means:
(a) a subsection 1311(5) offence; or
(b) an offence against this Act that
the regulations prescribe for the purposes of this section.
prescribed penalty, in relation to a
prescribed offence in relation to which ASIC may give, or has given, to a
person a notice under subsection (1), means:
(a) if the offence is a subsection
1311(5) offence:
(i) if the regulations
prescribe in relation to the offence for the purposes of this paragraph an
amount not exceeding one half the amount of the penalty applicable to the
offence:
(A) if the
person is a body corporate—a penalty of five times the amount so prescribed; or
(B) otherwise—a
penalty of the amount so prescribed; or
(ii) otherwise:
(A) if the
person is a body corporate—a penalty of 1.25 times the amount of the penalty
applicable to the offence; or
(B) otherwise—a
penalty of 0.25 times the amount of the penalty applicable to the offence; or
Note: Section 1311
provides for the penalty applicable to an offence.
(b) otherwise—a penalty of the amount
that the regulations prescribe in relation to the offence.
subsection 1311(5) offence means an offence
the penalty applicable to which is provided for by subsection 1311(5).
1313A
Offences committed partly in and partly out of the jurisdiction
Where:
(a) a person does or omits to do an
act outside this jurisdiction; and
(b) if
that person had done or omitted to do that act in this jurisdiction, the person
would, by reason of also having done or omitted to do an act in this
jurisdiction, have been guilty of an offence against this Act;
the person is guilty of that offence.
1314
Continuing offences
(1) Where:
(a) by or under a provision, an act is
or was required to be done within a particular period or before a particular
time; and
(b) failure to do the act within that
period or before that time constitutes an offence; and
(c) the
act is not done within that period or before that time;
then:
(d) the obligation to do the act
continues, after that period has ended or that time has passed, and whether or
not a person is or has been convicted of a primary substantive offence in
relation to failure to do the act, until the act is done; and
(e) subsections (3) and (4)
apply.
(2) Where:
(a) by or under a provision, an act is
or was required to be done but neither a period nor a time for the doing of the
Act is or was specified; and
(b) failure to do the act constitutes
an offence; and
(c) a
person is or has been convicted of a primary substantive offence in relation to
failure to do the act;
then:
(d) the obligation to do the act
continues, despite the conviction, until the act is done; and
(e) subsections (3) and (4)
apply.
(3) Where:
(a) at a particular time, a person is
or was first convicted of a substantive offence, or is or was convicted of a
second or subsequent substantive offence, in relation to failure to do the act;
and
(b) the
failure to do the act continued after that time;
then:
(c) the person is, in relation to
failure to do the act, guilty of a further offence in respect of so much of the
period throughout which the failure to do the act continued or elapsed after
that time and before the relevant day in relation to the further offence; and
(d) for the purposes of this Act and
of the Crimes Act 1914, the further offence is taken to be constituted
by failure to do the act during so much of that period as so elapsed.
(4) Where:
(a) the provision referred to in paragraph (1)(a)
or (2)(a), as the case may be, provides or provided that:
(i) an officer or employee
of a body corporate; or
(ii) a
person;
who is or was in default, or is
or was involved in a contravention constituted by the failure to do the act, is
or was guilty of an offence or contravenes or contravened a provision of this
Act; and
(b) throughout a particular period (in
this subsection called the relevant period):
(i) the failure to do the
act continued; and
(ii) a person (in this
subsection called the derivative offender) is or was in any way,
by act or omission, directly or indirectly, knowingly concerned in or party to
the failure to do the act; and
(iii) in
a case where subparagraph (a)(i) applies—the derivative offender is or was
an officer or employee of the body;
then:
(c) in a case where either or both of
the following events occurs or occur:
(i) a person is or was
convicted, before or during the relevant period, of a primary substantive
offence in relation to failure to do the act;
(ii) the
derivative offender is or was convicted, before or during the relevant period,
of a primary derivative offence in relation to failure to do the act;
the derivative offender is, in
relation to failure to do the act, guilty of an offence (in this paragraph
called the relevant offence) in respect of so much (if any) of
the relevant period as elapsed:
(iii) after the conviction
referred to in subparagraph (i) or(ii), or after the earlier of the
convictions referred to in subparagraphs (i) and (ii), as the case may be;
and
(iv) before the relevant day
in relation to the relevant offence; and
(d) in a case where, at a particular
time during the relevant period, the derivative offender is or was first
convicted of a secondary derivative offence, or is or was convicted of a second
or subsequent secondary derivative offence, in relation to failure to do the
act—the derivative offender is, in relation to failure to do the act, guilty of
a further offence in respect of so much of the relevant period as elapsed after
that time and before the relevant day in relation to the further offence.
(5) Where a person is guilty, by virtue of subsection (3)
or (4), of an offence in respect of the whole or a part of a particular period,
the penalty applicable to the offence is a fine of the amount obtained by
multiplying half a penalty unit by the number of days in that period, or in
that part of that period, as the case may be.
(6) In this section:
act includes thing.
primary derivative offence, in relation to
failure to do an act, means an offence (other than an offence of which a person
is guilty by virtue of this section) of which a person is or was guilty by
virtue of being an officer of a corporation, or a person, who is or was in any
way, by act or omission, directly or indirectly, knowingly concerned in or
party to failure to do the act.
primary substantive offence, in relation to a
failure to do an act, means an offence (other than an offence of which a person
is or was guilty by virtue of this section) constituted by failure to do the
act, or by failure to do the act within a particular period or before a
particular time.
provision means a section, or a subsection of
a section, of this Act.
relevant day, in relation to an offence of
which a person is guilty by virtue of this section, means:
(a) in a case where the information
relating to the offence specifies a day in relation to the offence for the
purposes of this section, being a day not later than the day on which the
information is laid—the day the information so specifies; or
(b) in any other case—the day on which
the information relating to the offence is laid.
required includes directed.
secondary derivative offence, in relation to
failure to do an act, means an offence or further offence of which a person is,
in relation to failure to do the act, guilty by virtue of paragraph (4)(c)
or (d).
substantive offence, in relation to failure
to do an act, means:
(a) a primary substantive offence in
relation to failure to do the act; or
(b) a further offence of which a
person is, in relation to failure to do the act, guilty by virtue of subsection (3).
(7) For the purposes of subsection (4),
a provision of this Act is, whether or not it expressly provides as mentioned
in paragraph (4)(a), taken to provide that a person who is or was involved
in a contravention constituted by a failure to do an act required by the
provision contravenes or contravened that provision.
1315
Proceedings: how taken
(1) Subject to this Act, in any proceedings
for an offence against this Act, any information, charge, complaint or
application may be laid or made by:
(a) ASIC; or
(b) a Commission delegate; or
(c) another person authorised in
writing by the Minister to institute the proceedings.
(2) A delegation for the purposes of paragraph (1)(b),
or an authorisation for the purposes of paragraph (1)(c), may relate to
all offences, or to specified offences, against this Act.
(3) Nothing in this section affects the
operation of the Director of Public Prosecutions Act 1983.
1316
Time for instituting criminal proceedings
Despite anything in any other law,
proceedings for an offence against this Act may be instituted within the period
of 5 years after the act or omission alleged to constitute the offence or, with
the Minister’s consent, at any later time.
1316A
Privilege against self‑incrimination not available to bodies corporate in
Corporations Act criminal proceedings
(1) In a
Corporations Act criminal proceeding, a body corporate is not entitled to
refuse or fail to comply with a requirement:
(a) to answer a question or give
information; or
(b) to produce a book or any other
thing; or
(c) to do any other act whatever;
on the ground that the answer or information, production
of the book or other thing, or doing that other act, as the case may be, might
tend:
(d) to incriminate the body (whether
in respect of an offence to which the proceeding relates or otherwise); or
(e) to make the body liable to a
penalty (whether in respect of anything to which the proceeding relates or
otherwise).
(2) Subsection (1) applies whether or
not the body concerned is a defendant in the proceeding or in any other
proceeding.
(3) In this
section:
Corporations Act criminal proceeding means a
proceeding in a court when exercising jurisdiction in respect of a criminal
matter arising under this Act.
1317
Certain persons to assist in prosecutions
(1) Where a prosecution in respect of an
offence against this Act has been instituted, or ASIC is of the opinion that a
prosecution in respect of an offence against this Act ought to be instituted,
against a person (in this section referred to as the defendant),
ASIC may:
(a) if the defendant is a natural
person—require any person who is or was a partner, employee or agent of the
defendant; or
(b) if
the defendant is a body corporate—require any person who is or was an officer,
employee or agent of the defendant;
to assist in the prosecution, and the person who is so
required must give all assistance in connection with the prosecution that that
person is reasonably able to give.
(2) ASIC must not make such a requirement as
is mentioned in subsection (1) of a person who, in the opinion of ASIC, is
or is likely to be a defendant in the proceedings or is or has been such a
person’s lawyer.
(3) If a
person to whom paragraph (1)(a) or (b) relates fails to give assistance as
required by subsection (1), the person contravenes this section and,
without affecting any penalty to which the person may be liable for the
contravention, the Court may, on the application of ASIC, order the person to
comply with the requirement within such time, and in such manner, as the Court
orders.
(4) In this section, agent, in
relation to the defendant, includes a banker of the defendant and a person
engaged as an auditor by the defendant, whether that person is an employee or
an officer of the defendant or not.
Part 9.4AAA—Protection for whistleblowers
1317AA
Disclosures qualifying for protection under this Part
(1) A disclosure of information by a person
(the discloser) qualifies for protection under this Part if:
(a) the discloser is:
(i) an officer of a
company; or
(ii) an employee of a
company; or
(iii) a person who has a
contract for the supply of services or goods to a company; or
(iv) an employee of a person
who has a contract for the supply of services or goods to a company; and
(b) the disclosure is made to:
(i) ASIC; or
(ii) the company’s auditor
or a member of an audit team conducting an audit of the company; or
(iii) a director, secretary
or senior manager of the company; or
(iv) a person authorised by
the company to receive disclosures of that kind; and
(c) the discloser informs the person
to whom the disclosure is made of the discloser’s name before making the
disclosure; and
(d) the discloser has reasonable grounds
to suspect that the information indicates that:
(i) the company has, or
may have, contravened a provision of the Corporations legislation; or
(ii) an officer or employee
of the company has, or may have, contravened a provision of the Corporations
legislation; and
(e) the discloser makes the disclosure
in good faith.
Note: Under section 1405, the reference to a
provision of the Corporations legislation includes a reference to a
corresponding provision of the old corporations legislation of the States and
Territories.
(2) A reference in subsection (1) to a
person contravening a provision of the Corporations legislation includes a
reference to a person committing an offence against, or based on, a provision
of this Act.
Note: This subsection causes section 11.6 of
the Criminal Code to operate in relation to such references.
1317AB
Disclosure that qualifies for protection not actionable etc.
(1) If a person makes a disclosure that
qualifies for protection under this Part:
(a) the person is not subject to any
civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may
be enforced, and no contractual or other right may be exercised, against the
person on the basis of the disclosure.
Note: This subsection does not provide that the
person is not subject to any civil or criminal liability for conduct of the
person that is revealed by the disclosure.
(2) Without limiting subsection (1):
(a) the person has qualified privilege
in respect of the disclosure; and
(b) a contract to which the person is
a party may not be terminated on the basis that the disclosure constitutes a
breach of the contract.
(3) Without limiting paragraphs (1)(b)
and (2)(b), if a court is satisfied that:
(a) a person (the employee)
is employed in a particular position under a contract of employment with
another person (the employer); and
(b) the employee makes a disclosure
that qualifies for protection under this Part; and
(c) the employer purports to terminate
the contract of employment on the basis of the disclosure;
the court may order that the employee be reinstated in
that position or a position at a comparable level.
1317AC
Victimisation prohibited
Actually causing detriment to another person
(1) A person (the first person)
contravenes this subsection if:
(a) the first person engages in
conduct; and
(b) the first person’s conduct causes
any detriment to another person (the second person); and
(c) the first person intends that his
or her conduct cause detriment to the second person; and
(d) the first person engages in his or
her conduct because the second person or a third person made a disclosure that
qualifies for protection under this Part.
Threatening to cause detriment to another person
(2) A person (the first person)
contravenes this subsection if:
(a) the first person makes to another
person (the second person) a threat to cause any detriment to the
second person or to a third person; and
(b) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat
because a person:
(i) makes a disclosure
that qualifies for protection under this Part; or
(ii) may make a disclosure
that would qualify for protection under this Part.
Officers and employees involved in contravention
(3) If a company contravenes subsection (1)
or (2), any officer or employee of the company who is involved in that
contravention contravenes this subsection.
Threats
(4) For the purposes of subsection (2),
a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(5) In a prosecution for an offence against subsection (2),
it is not necessary to prove that the person threatened actually feared that
the threat would be carried out.
1317AD
Right to compensation
If:
(a) a person (the person in
contravention) contravenes subsection 1317AC(1), (2) or (3); and
(b) a person (the victim)
suffers damage because of the contravention;
the person in contravention is liable to compensate the
victim for the damage.
1317AE
Confidentiality requirements for company, company officers and employees and
auditors
(1) A person (the offender) is
guilty of an offence against this subsection if:
(a) a person (the discloser)
makes a disclosure of information (the qualifying disclosure)
that qualifies for protection under this Part; and
(b) the qualifying disclosure relates
to a contravention or possible contravention of a provision of the Corporations
legislation by:
(i) a company; or
(ii) an officer or employee
of the company; and
(c) the qualifying disclosure is made
to:
(i) the company’s auditor
or a member of an audit team conducting an audit of the company; or
(ii) a director, secretary or
senior manager of the company; or
(iii) a person authorised by
the company to receive disclosures of that kind; and
(d) the offender is:
(i) the company’s auditor
or a member of an audit team conducting an audit of the company; or
(ii) a director, secretary
or senior manager of the company; or
(iii) a person authorised by
the company to receive disclosures of that kind; or
(iv) the company; or
(v) any officer or employee
of the company; and
(e) the offender discloses one of the
following (the confidential information):
(i) the information
disclosed in the qualifying disclosure;
(ii) the identity of the
discloser;
(iii) information that is
likely to lead to the identification of the discloser; and
(f) the confidential information is
information that the offender obtained directly or indirectly because of the
qualifying disclosure; and
(g) either:
(i) the offender is the
person to whom the qualifying disclosure is made; or
(ii) the offender is a
person to whom the confidential information is disclosed in contravention of
this section and the offender knows that the disclosure of the confidential
information to the offender was unlawful or made in breach of confidence; and
(h) the disclosure referred to in paragraph (e)
is not authorised under subsection (2).
(2) The disclosure referred to in paragraph (1)(e)
is authorised under this subsection if it:
(a) is made to ASIC; or
(b) is made to APRA; or
(c) is made to a member of the
Australian Federal Police (within the meaning of the Australian Federal
Police Act 1979); or
(d) is made to someone else with the
consent of the discloser.
Part 9.4A—Review by Administrative Appeals Tribunal of certain
decisions
1317A
Definitions
In this Part:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
1317B
Applications for review
(1) Subject to this Part, applications may be
made to the Tribunal for review of a decision made under this Act by:
(a) the Minister; or
(b) ASIC; or
(c) the Companies Auditors and Liquidators
Disciplinary Board.
(2) For the purposes of this Act and the Administrative
Appeals Tribunal Act 1975, ASIC and APRA are taken to be persons whose
interests are affected by a decision made under this Act by the Companies
Auditors and Liquidators Disciplinary Board.
1317C
Excluded decisions
Section 1317B does not apply in
relation to:
(a) a decision in respect of which any
provision in the nature of an appeal or review is expressly provided by this
Act; or
(b) a decision that is declared by
this Act to be conclusive or final or is embodied in a document declared by
this Act to be conclusive evidence of an act, matter or thing; or
(c) a decision by ASIC not to consent
to the referral of a financial report to the Financial Reporting Panel under
Subdivision C of Division 9 of Part 2M.3; or
(d) a decision made by ASIC in the
performance of a function, or in the exercise of a power, under section 601CC
or 601CL or Chapter 5A; or
(e) a decision by ASIC to refuse to
exercise a power under section 601CC or 601CL or Chapter 5A; or
(f) a decision to apply under section 596A
or 596B for the Court to summon a person for examination about a corporation’s
examinable affairs; or
(g) a decision to apply under section 597A
for the Court to require a person to file an affidavit about a corporation’s
examinable affairs; or
(ga) a decision of ASIC under section 655A;
or
(gb) a decision of ASIC under section 673
in relation to securities of the target of a takeover bid during the bid
period; or
(gc) a decision by ASIC whether to make
an application under section 657C, 657G, 659B, 1325A, 1325B or 1325C; or
(gd) a decision of the Minister under
Division 1 of Part 7.4; or
(ge) a decision of ASIC under section 1101A;
or
(h) a decision to make a determination
under subsection 1317D(3); or
(i) a decision of ASIC to issue an
infringement notice under section 1317DAC; or
(j) a decision of ASIC to withdraw,
or not to withdraw, an infringement notice under section 1317DAI.
1317D
Notice of reviewable decision and review rights
(1) This section applies if the Minister,
ASIC or the Companies Auditors and Liquidators Disciplinary Board (the decision
maker) makes a decision to which section 1317B applies.
(2) Subject to subsection (3), the
decision maker must take such steps as are reasonable in the circumstances to
give to each person whose interests are affected by the decision notice, in
writing or otherwise:
(a) of the making of the decision; and
(b) of the person’s right to have the
decision reviewed by the Tribunal.
(3) Subsection (2) does not require the
decision maker to give notice to a person affected by the decision or to the
persons in a class of persons affected by the decision, if the decision maker
determines that giving notice to the person or persons is not warranted, having
regard to:
(a) the cost of giving notice to the
person or persons; and
(b) the way in which the interests of
the person or persons are affected by the decision.
(4) A failure to comply with this section
does not affect the validity of the decision.
(5) The fact that a person has not been given
notice of the decision because of a determination under subsection (3)
constitutes special circumstances for the purposes of subsection 29(6) of the Administrative
Appeals Tribunal Act 1975.
Part 9.4AA—Infringement notices for alleged contraventions of
continuous disclosure provisions
1317DAA
Definitions
(1) In this Part:
compensation proceedings means:
(a) proceedings under section 1317HA;
and
(b) proceedings under section 12GF
of the ASIC Act in relation to a contravention of section 12DA of that
Act; and
(c) any other proceedings by a person
for compensation for loss or damage suffered by the person.
compliance period for an infringement notice
has the meaning affected by section 1317DAH.
contravention proceedings means proceedings
under section 1101B by a person referred to in paragraph 1101B(1)(b) or
(d).
enforcement proceedings means proceedings
under section 793C by a person referred to in paragraph 793C(1)(b), (c) or
(d).
infringement notice means an infringement
notice issued under section 1317DAC.
penalty and disclosure proceedings means the
proceedings referred to in column 3 of the table in subsection 1317DAG(2).
public interest proceedings means proceedings
under section 50 of the ASIC Act.
(2) For the purposes of applying this Part to
a disclosing entity that is an undertaking to which interests in a registered
scheme relate:
(a) references to the disclosing
entity are taken to be references to the responsible entity for the registered
scheme; and
(b) references to a financial report
for a financial year being lodged by a disclosing entity are taken to be
references to such a report being lodged by the responsible entity in relation
to the scheme; and
(c) references to securities of a
disclosing entity are taken to be references to interests in the registered
scheme; and
(d) references to a disclosing entity
being convicted of an offence based on subsection 674(2) or 675(2) are taken to
be references to the responsible entity being convicted of such an offence in
relation to the registered scheme; and
(e) references to a civil penalty
order under Part 9.4B being made against a disclosing entity in relation
to a contravention of subsection 674(2) or 675(2) are taken to be references to
such an order being made against the responsible entity in relation to the
registered scheme; and
(f) references to a disclosing entity
having breached an enforceable undertaking given to ASIC under section 93AA
of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2)
are taken to be references to the responsible entity having breached such an
undertaking given in relation to the registered scheme.
1317DAB
Purpose and effect of this Part
(1) The purpose of this Part is to provide
for the issue of an infringement notice to a disclosing entity for an alleged
contravention of subsection 674(2) or 675(2) as an alternative to proceedings
for civil penalties under Part 9.4B.
(2) This Part does not:
(a) require an infringement notice to
be issued to the disclosing entity for the alleged contravention of subsection
674(2) or 675(2); or
(b) affect the liability of the
disclosing entity to civil or criminal proceedings in relation to the alleged
contravention of subsection 674(2) or 675(2) if:
(i) an infringement notice
is not issued to the disclosing entity for the alleged contravention; or
(ii) an infringement notice
issued to the disclosing entity for the alleged contravention is withdrawn
under section 1317DAI; or
(c) prevent a Court from imposing a
higher penalty than the penalty specified in the infringement notice if the
disclosing entity does not comply with the infringement notice.
1317DAC
Issue of infringement notice
Issue of infringement notice
(1) Subject to section 1317DAD, if ASIC
has reasonable grounds to believe that a disclosing entity has contravened
subsection 674(2) or 675(2), ASIC may issue an infringement notice to the
disclosing entity.
(2) ASIC issues the infringement notice to
the disclosing entity by serving it on the disclosing entity.
(3) ASIC must not issue more than one
infringement notice to the disclosing entity for the same alleged contravention
of subsection 674(2) or 675(2).
ASIC must have regard to certain matters
(4) In determining whether to issue an
infringement notice to a listed disclosing entity for an alleged contravention
of subsection 674(2), ASIC must have regard to:
(a) any guidelines issued by the
relevant market operator for the listed disclosing entity that relate to the
provisions of the listing rules referred to in subsection 674(1); and
(b) any other relevant matter.
Infringement notice does not have effect
(5) The infringement notice does not have any
effect if the infringement notice:
(a) is issued more than 12 months after
the day on which the contravention of subsection 674(2) or 675(2) is alleged to
have occurred; or
(b) relates to more than one alleged
contravention of subsection 674(2) or 675(2) by the disclosing entity.
1317DAD
Statement of reasons must be given
Statement of reasons
(1) Before issuing the infringement notice,
ASIC must:
(a) give the disclosing entity a
written statement that sets out ASIC’s reasons for believing that the
disclosing entity has contravened subsection 674(2) or 675(2); and
(b) give a representative of the
disclosing entity an opportunity to:
(i) appear at a private
hearing before ASIC; and
(ii) give evidence to ASIC;
and
(iii) make submissions to
ASIC;
in relation to the alleged
contravention of subsection 674(2) or 675(2).
(2) If the disclosing entity is a listed
disclosing entity, ASIC must consult with the relevant market operator for the
disclosing entity before giving the disclosing entity the statement under this
subsection.
(3) ASIC does not need to consult the relevant
market operator under subsection (2) if:
(a) the disclosing entity is the
relevant market operator; or
(b) the disclosing entity conducts a
business in competition with a business conducted by the relevant market
operator.
Limit on the use of evidence or information given to
ASIC
(4) Evidence or information that a
representative of the disclosing entity gives ASIC under paragraph (1)(b)
in relation to the alleged contravention of subsection 674(2) or 675(2) is:
(a) not admissible in evidence against
the disclosing entity in any proceedings; and
(b) not admissible in evidence against
a representative of the disclosing entity in any proceedings (other than
proceedings for an offence based on the evidence or information given being
false or misleading).
1317DAE
Matters to be included in infringement notice
(1) The infringement notice:
(a) must state the day on which it is
issued; and
(b) must state the name and address of
the disclosing entity to whom it is issued; and
(c) must state that it is being issued
by ASIC; and
(d) must state that ASIC may publish
details of the disclosing entity’s compliance with the infringement notice
under section 1317DAJ if the disclosing entity complies with the notice;
and
(e) must give details of the alleged
contravention by the disclosing entity, including:
(i) the date of the
alleged contravention; and
(ii) the particular
provision that was contravened; and
(f) must state the maximum pecuniary
penalty that a Court could impose under Part 9.4B in relation to the
alleged contravention; and
(g) must specify the penalty that is
payable in relation to the alleged contravention; and
(h) must state that the penalty is
payable to ASIC on behalf of the Commonwealth; and
(i) if it is alleged that the
disclosing entity contravened subsection 674(2)—may specify information that
the disclosing entity must notify to the relevant market operator in accordance
with the provisions of the listing rules referred to in subsection 674(1); and
(j) if it is alleged that the disclosing
entity contravened subsection 675(2)—may require the disclosing entity to lodge
a document with ASIC that contains specified information; and
(k) must explain the effect of
sections 1317DAF, 1317DAG and 1317DAH; and
(l) must state that the disclosing
entity may make written representations to ASIC seeking the withdrawal of the
infringement notice; and
(m) must contain any other matters that
are prescribed in the regulations.
(2) Subject to subsection (3), the
penalty specified in the infringement notice under paragraph (1)(g) for an
alleged contravention of subsection 674(2) is:
(a) $100,000 if the disclosing entity
is a Tier 1 entity; or
(b) $66,000 if the disclosing entity
is a Tier 2 entity; or
(c) $33,000 if the disclosing entity
is a Tier 3 entity.
(3) The penalty specified in the infringement
notice under paragraph (1)(g) for an alleged contravention of subsection
674(2) is:
(a) $100,000 if the disclosing entity
is a Tier 2 entity; or
(b) $66,000 if the disclosing entity
is a Tier 3 entity;
if:
(c) the disclosing entity has at any
time been convicted of an offence based on subsection 674(2) or 675(2); or
(d) a civil penalty order under Part 9.4B
has at any time been made against the disclosing entity in relation to a
contravention of subsection 674(2) or 675(2); or
(e) the disclosing entity has at any
time breached an enforceable undertaking given to ASIC under section 93AA
of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2).
(4) Subject to subsection (5), the penalty
specified in the infringement notice under paragraph (1)(g) for an alleged
contravention of subsection 675(2) is $33,000.
(5) The penalty specified in the infringement
notice under paragraph (1)(g) for an alleged contravention of subsection
675(2) is $66,000 if:
(a) the disclosing entity has at any
time been convicted of an offence based on subsection 674(2) or 675(2); or
(b) a civil penalty order under Part 9.4B
has at any time been made against the disclosing entity in relation to a
contravention of subsection 674(2) or 675(2); or
(c) the disclosing entity has at any
time breached an enforceable undertaking given to ASIC under section 93AA
of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2).
(6) For the
purposes of this section:
(a) a disclosing entity is:
(i) a Tier 1 entity
if its market capitalisation on the relevant day exceeds $1,000 million; and
(ii) a Tier 2 entity
if its market capitalisation on the relevant day exceeds $100 million but does
not exceed $1,000 million; and
(iii) a Tier 3 entity
if its market capitalisation on the relevant day does not exceed $100 million
or it is not possible to work out its market capitalisation on the relevant day
because it has not lodged a financial report with ASIC before the relevant day;
and
(b) the relevant day for
an infringement notice is the last day of the financial year in relation to
which the latest financial report by the disclosing entity has been lodged with
ASIC before the infringement notice is issued.
(7) This is how to work out a disclosing
entity’s market capitalisation on the relevant day:
(a) for each class of security of the
disclosing entity that is a quoted security:
(i) work out the closing
price, on the relevant day, for securities in that class on the prescribed
financial market on which the securities are quoted; and
(ii) multiply that price by
the number of securities in that class on issue on the relevant day (as shown
in the financial report lodged with ASIC for the period that ends on the
relevant day); and
(b) add up the amounts obtained under paragraph (a):
the result is the disclosing entity’s market capitalisation on the relevant
day.
Disregard quoted securities of the disclosing entity that
are options.
1317DAF
Effect of issue and compliance with infringement notice
Circumstances in which this section applies
(1) This section applies if subsection (2)
or (3) is satisfied.
(2) This
subsection is satisfied if:
(a) the compliance period for the
infringement notice has not ended; and
(b) the infringement notice is not
withdrawn under section 1317DAI; and
(c) subsection (3) has not been
satisfied.
(3) This subsection is satisfied if, within
the compliance period for the infringement notice, the disclosing entity:
(a) pays the penalty specified in the
infringement notice; and
(b) either:
(i) if it is alleged in
the infringement notice that the disclosing entity contravened subsection
674(2)—notifies the relevant market operator, in accordance with the provisions
of the listing rules referred to in subsection 674(1), of any information
specified in the infringement notice; or
(ii) if it is alleged in
the infringement notice that the disclosing entity contravened subsection
675(2)—lodges any required document with ASIC that contains the information
specified in the infringement notice.
Note: If this subsection is satisfied, ASIC must not
withdraw the infringement notice, see section 1317DAI.
No contravention etc. by the disclosing entity
(4) The disclosing entity is not, by reason
only of subsection (3) being satisfied, regarded as:
(a) having contravened the provision
specified in the infringement notice; or
(b) having been convicted of an
offence constituted by the same conduct that constituted the alleged
contravention of the provision specified in the infringement notice.
No proceedings may be started etc.
(5) Subject to subsection (6), no
proceedings (whether criminal or civil) may be started or continued against the
disclosing entity in relation to:
(a) the alleged contravention of the
provision specified in the infringement notice; or
(b) an offence constituted by the same
conduct that constituted the alleged contravention.
(6) Subsection (5) does not apply to the
following proceedings:
(a) compensation proceedings, contravention
proceedings, enforcement proceedings and public interest proceedings that
relate to the alleged contravention of the provision specified in the
infringement notice;
(b) proceedings to enforce the
following orders of a Court:
(i) an order made in relation
to proceedings referred to in paragraph (a);
(ii) an order made under
subsection 1335(2) in relation to proceedings referred to in paragraph (a)
other than public interest proceedings;
(c) any other proceedings in respect
of a breach of an order referred to in paragraph (b);
(d) an appeal to a Court against the
following decisions or orders of a Court:
(i) a decision or order
made in relation to proceedings referred to in paragraph (a);
(ii) a decision or order
made under subsection 1335(2) in relation to the proceedings referred to in paragraph (a)
other than public interest proceedings.
(7) To avoid doubt, subsection (5) does
not prevent ASIC from:
(a) making an order under section 91
of the ASIC Act; or
(b) bringing proceedings to enforce
the order.
1317DAG
Effect of failure to comply with infringement notice
Circumstances in which this section applies
(1) This section applies if an infringement
notice issued to a disclosing entity is not withdrawn under section 1317DAI.
Effect of failure to comply with infringement notice
(2) If the disclosing entity fails to do a
thing specified in column 2 of the following table within the compliance period
for the infringement notice, the disclosing entity is liable to the proceedings
specified in column 3 of the following table:
|
Effect of failure to
comply with infringement notice
|
|
Column 1
|
Column 2
|
Column 3
|
|
Item
|
If the disclosing entity fails to:
|
the disclosing entity is liable to:
|
|
1
|
pay the penalty specified in the infringement notice
|
proceedings under Part 9.4B for:
(a) a declaration of
contravention; and
(b) a pecuniary penalty order;
in relation to the alleged contravention of the provision
specified in the infringement notice.
|
|
2
|
notify the relevant market
operator, in accordance with the provisions of the listing rules referred to
in subsection 674(1), of any information specified in the infringement notice
if it is alleged in the infringement notice that the disclosing entity
contravened subsection 674(2)
|
proceedings for an order
under section 1324B in relation to the alleged contravention of the
provision specified in the infringement notice.
|
|
3
|
lodge any required document with ASIC that contains the
information specified in the infringement notice if it is alleged in the
infringement notice that the disclosing entity contravened subsection 675(2)
|
proceedings for an order under section 1324B in
relation to the alleged contravention of the provision specified in the
infringement notice.
|
No other proceedings may be started etc.
(3) Subject to subsection (4), no other
proceedings (whether criminal or civil) may be started or continued against the
disclosing entity in relation to:
(a) the alleged contravention of the
provision specified in the infringement notice; or
(b) an offence constituted by the same
conduct that constituted the alleged contravention.
(4) Subsection (3)
does not apply to the following proceedings:
(a) compensation proceedings,
contravention proceedings, enforcement proceedings and public interest
proceedings that relate to the alleged contravention of the provision specified
in the infringement notice;
(b) proceedings to enforce the
following orders of a Court:
(i) an order made in
relation to penalty and disclosure proceedings;
(ii) an order made in
relation to proceedings referred to in paragraph (a);
(iii) an order made under
subsection 1335(2) in relation to penalty and disclosure proceedings;
(iv) an order made under
subsection 1335(2) in relation to proceedings referred to in paragraph (a)
other than public interest proceedings;
(c) any other proceedings in respect
of a breach of an order referred to in paragraph (b);
(d) an appeal to a Court against the
following decisions or orders of a Court:
(i) a decision or order
made in relation to penalty and disclosure proceedings;
(ii) a decision or order
made in relation to proceedings referred to in paragraph (a);
(iii) a decision or order
made under subsection 1335(2) in relation to penalty and disclosure
proceedings;
(iv) a decision or order
made under subsection 1335(2) in relation to proceedings referred to in paragraph (a)
other than public interest proceedings.
(5) To avoid doubt, subsection (3) does
not prevent ASIC from:
(a) making a determination under
subsection 708AA(3), 708A(2), 713(6), 1012DAA(3), 1012DA(2) or 1013FA(3) of
this Act; or
(b) making an order under section 91
of the ASIC Act; or
(c) accepting an undertaking under
section 93AA of the ASIC Act; or
(d) bringing proceedings to enforce
the determination, order or undertaking.
1317DAH
Compliance period for infringement notice
(1) Subject to this section, the compliance
period for an infringement notice is a period of 28 days beginning on the day
after the day on which the infringement notice is issued.
(2) ASIC may extend, by notice in writing,
the compliance period for the infringement notice if ASIC is satisfied that it
is appropriate to do so.
(3) Only one extension may be given and the
extension must not be for longer than 28 days.
(4) Notice of the extension must be given to
the disclosing entity that was issued with the infringement notice.
(5) A failure to comply with subsection (4)
does not affect the validity of the extension.
(6) If ASIC extends the compliance period for
an infringement notice, a reference in this Act to the compliance period for an
infringement notice is taken to be a reference to the compliance period as so
extended.
1317DAI
Withdrawal of infringement notice
Disclosing entity may seek withdrawal
(1) If an infringement notice is issued to a
disclosing entity, the disclosing entity may make written representations to
ASIC seeking the withdrawal of the infringement notice.
(2) Evidence or information that a
representative of the disclosing entity gives ASIC in the course of making
representations under subsection (1) is:
(a) not admissible in evidence against
the disclosing entity in any proceedings; and
(b) not admissible in evidence against
a representative of the disclosing entity in any proceedings (other than
proceedings for an offence based on the evidence or information given being
false or misleading).
Withdrawal
(3) Subject to subsection (4), ASIC may
withdraw the infringement notice (whether or not the disclosing entity has made
representations seeking the withdrawal) if ASIC is satisfied that it is
appropriate to do so.
(4) ASIC must not withdraw the infringement
notice if subsection 1317DAF(3) is satisfied.
Withdrawal notice
(5) The withdrawal must be made by notice in
writing and must be given to the disclosing entity.
(6) The withdrawal notice must state:
(a) the name and address of the
disclosing entity; and
(b) the day on which the infringement
notice was issued to the disclosing entity; and
(c) that the infringement notice is
withdrawn; and
(d) that civil proceedings under Part 9.4B
may be brought against the disclosing entity for a contravention of the
provision specified in the infringement notice; and
(e) that a prosecution for an offence
based on the provision specified in the infringement notice may be brought
against the disclosing entity.
Refund of penalty
(7) If:
(a) the disclosing entity pays the
penalty specified in the infringement notice; and
(b) the infringement notice is
withdrawn after the disclosing entity pays the penalty;
ASIC must refund to the disclosing entity an amount equal
to the amount paid.
1317DAJ
Publication in relation to infringement notices
(1) If:
(a) ASIC issues an infringement notice
to a disclosing entity; and
(b) subsection 1317DAF(3) (compliance
with the infringement notice) is satisfied;
ASIC may publish details of the disclosing entity’s
compliance with the infringement notice under subsection (2) or (3) or
under both of those subsections.
(2) ASIC publishes details of the disclosing
entity’s compliance with the infringement notice under this subsection if it
publishes a copy of the infringement notice in the Gazette together with
the following statements:
(a) a statement that the disclosing
entity has complied with the infringement notice;
(b) a statement that compliance with
the notice is not an admission of guilt or liability;
(c) a statement that the disclosing
entity is not regarded as having contravened the provision specified in the
notice.
(3) ASIC publishes details of the disclosing
entity’s compliance with the infringement notice under this subsection if:
(a) ASIC issues a statement (whether
written or oral) about the disclosing entity’s compliance with the infringement
notice; and
(b) the statement is limited to an
accurate summary of the infringement notice including:
(i) the name of the
disclosing entity; and
(ii) the amount of the
penalty payable under the notice in relation to the alleged contravention; and
(iii) the conduct specified
in the notice as the conduct in relation to which the infringement notice was
issued;
together with the following
statements:
(iv) a statement that the
disclosing entity has complied with the infringement notice;
(v) a statement that
compliance with the notice is not an admission of guilt or liability;
(vi) a statement that the
relevant disclosing entity is not regarded as having contravened the provision
specified in the notice.
(4) ASIC must
not otherwise publish details of:
(a) an
infringement notice; or
(b) a disclosing entity’s compliance
with an infringement notice.
Failure to comply with this subsection is not an offence.
Part 9.4B—Civil consequences of contravening civil penalty provisions
1317DA
Definitions
In this Act:
corporation/scheme civil penalty provision means
a provision referred to in subsection 1317E(1), other than a financial services
civil penalty provision.
financial services civil penalty provision
means a provision referred to in any of paragraphs 1317E(1)(ja) to (jg).
1317E
Declarations of contravention
(1) If a Court is satisfied that a person has
contravened 1 of the following provisions, it must make a declaration of
contravention:
(a) subsections 180(1) and 181(1) and
(2), 182(1) and (2), 183(1) and (2) (officers’ duties);
(b) subsection 209(2) (related
parties rules);
(c) subsections 254L(2), 256D(3),
259F(2) and 260D(2) (share capital transactions);
(d) subsection 344(1) (requirements
for financial reports);
(e) subsection 588G(2) (insolvent
trading);
(f) subsection 601FC(5) (duties of
responsible entity)
(g) subsection 601FD(3) (duties of
officers of responsible entity)
(h) subsection 601FE(3) (duties of
employees of responsible entity)
(i) subsection 601FG(2) (acquisition
of interest in scheme by responsible entity)
(j) subsection 601JD(3) (duties of
members)
(ja) subsection 674(2), 674(2A),
675(2) or 675(2A) (continuous disclosure);
(jb) section 1041A (market
manipulation);
(jc) subsection 1041B(1) (false
trading and market rigging—creating a false or misleading appearance of active
trading etc.);
(jd) subsection 1041C(1) (false
trading and market rigging—artificially maintaining etc. market price);
(je) section 1041D (dissemination
of information about illegal transactions);
(jf) subsection 1043A(1) (insider
trading);
(jg) subsection 1043A(2) (insider
trading);
(k) subclause 29(6) of Schedule 4.
These provisions are the civil penalty provisions.
Note: Once a declaration has been made ASIC can then
seek a pecuniary penalty order (section 1317G) or (in the case of a
corporation/scheme civil penalty provision) a disqualification order (section 206C).
(2) A declaration of contravention must
specify the following:
(a) the Court that made the
declaration;
(b) the civil penalty provision that
was contravened;
(c) the person who contravened the
provision;
(d) the conduct that constituted the
contravention;
(e) if the contravention is of a
corporation/scheme civil penalty provision—the corporation or registered scheme
to which the conduct related.
1317F
Declaration of contravention is conclusive evidence
A declaration of contravention is
conclusive evidence of the matters referred to in subsection 1317E(2).
1317G
Pecuniary penalty orders
Corporation/scheme civil penalty provisions
(1) A Court may order a person to pay the
Commonwealth a pecuniary penalty of up to $200,000 if:
(a) a declaration of contravention by
the person has been made under section 1317E; and
(aa) the contravention is of a
corporation/scheme civil penalty provision; and
(b) the contravention:
(i) materially prejudices
the interests of the corporation or scheme, or its members; or
(ii) materially prejudices
the corporation’s ability to pay its creditors; or
(iii) is serious.
Financial services civil penalty provisions
(1A) A Court may order a person to pay the
Commonwealth a pecuniary penalty of the relevant maximum amount if:
(a) a declaration of contravention by
the person has been made under section 1317E; and
(b) the contravention is of a
financial services civil penalty provision; and
(c) the contravention:
(i) materially prejudices
the interests of acquirers or disposers of the relevant financial products; or
(ii) materially prejudices
the issuer of the relevant financial products or, if the issuer is a
corporation or scheme, the members of that corporation or scheme; or
(iii) is serious.
(1B) The relevant maximum amount is:
(a) $200,000 for an individual; or
(b) $1 million for a body corporate.
Penalty a civil debt etc.
(2) The penalty is a civil debt payable to
ASIC on the Commonwealth’s behalf. ASIC or the Commonwealth may enforce the
order as if it were an order made in civil proceedings against the person to
recover a debt due by the person. The debt arising from the order is taken to
be a judgment debt.
1317H
Compensation orders—corporation/scheme civil penalty provisions
Compensation for damage suffered
(1) A Court may order a person to compensate
a corporation or registered scheme for damage suffered by the corporation or
scheme if:
(a) the person has contravened a
corporation/scheme civil penalty provision in relation to the corporation or
scheme; and
(b) the damage resulted from the
contravention.
The order must specify the amount of the compensation.
Note: An order may be made under this subsection
whether or not a declaration of contravention has been made under section 1317E.
Damage includes profits
(2) In determining the damage suffered by the
corporation or scheme for the purposes of making a compensation order, include
profits made by any person resulting from the contravention or the offence.
Damage includes diminution of value of scheme property
(3) In determining the damage suffered by the
scheme for the purposes of making a compensation order, include any diminution
in the value of the property of the scheme.
(4) If the responsible entity for a
registered scheme is ordered to compensate the scheme, the responsible entity
must transfer the amount of the compensation to scheme property. If anyone else
is ordered to compensate the scheme, the responsible entity may recover the
compensation on behalf of the scheme.
Recovery of damage
(5) A compensation order may be enforced as
if it were a judgment of the Court.
1317HA
Compensation orders—financial services civil penalty provisions
Compensation for damage suffered
(1) A Court may order a person (the liable
person) to compensate another person (including a corporation), or a
registered scheme, for damage suffered by the person or scheme if:
(a) the liable person has contravened
a financial services civil penalty provision; and
(b) the damage resulted from the
contravention.
The order must specify the amount of compensation.
Note: An order may be made under this subsection
whether or not a declaration of contravention has been made under section 1317E.
Damage includes profits
(2) In determining the damage suffered by a
person or scheme for the purposes of making a compensation order, include
profits made by any person resulting from the contravention.
Damage to scheme includes diminution of value of scheme
property
(3) In determining the damage suffered by a
registered scheme for the purposes of making a compensation order, include any
diminution in the value of the property of the scheme.
(4) If the responsible entity for a
registered scheme is ordered to compensate the scheme, the responsible entity
must transfer the amount of the compensation to the scheme property. If anyone
else is ordered to compensate the scheme, the responsible entity may recover
the compensation on behalf of the scheme.
Recovery of damage
(5) A compensation order may be enforced as
if it were a judgment of the Court.
1317J
Who may apply for a declaration or order
Application by ASIC
(1) ASIC may apply for a declaration of
contravention, a pecuniary penalty order or a compensation order.
Application by corporation
(2) The corporation, or the responsible entity
for the registered scheme, may apply for a compensation order.
Note: An application for a compensation order may be
made whether or not a declaration of contravention has been made under section 1317E.
(3) The corporation, or the responsible
entity for the registered scheme, may intervene in an application for a
declaration of contravention or a pecuniary penalty order in relation to the
corporation or scheme. The corporation or responsible entity is entitled to be
heard on all matters other than whether the declaration or order should be
made.
Compensation order relating to financial services civil
penalty provision—any other person who suffers damage may apply
(3A) Any other person who suffers damage in
relation to a contravention, or alleged contravention, of a financial services
civil penalty provision may apply for a compensation order under section 1317HA.
Note: An application for a compensation order may be
made whether or not a declaration of contravention has been made under section 1317E.
No one else may apply
(4) No person may apply for a declaration of
contravention, a pecuniary penalty order or a compensation order unless
permitted by this section.
(5) Subsection (4) does not exclude the
operation of the Director of Public Prosecutions Act 1983.
1317K
Time limit for application for a declaration or order
Proceedings for a declaration of
contravention, a pecuniary penalty order, or a compensation order, may be
started no later than 6 years after the contravention.
1317L
Civil evidence and procedure rules for declarations of contravention and civil
penalty orders
The Court must apply the rules of
evidence and procedure for civil matters when hearing proceedings for:
(a) a declaration of contravention; or
(b) a pecuniary penalty order.
1317M
Civil proceedings after criminal proceedings
A court must not make a declaration of
contravention or a pecuniary penalty order against a person for a contravention
if the person has been convicted of an offence constituted by conduct that is
substantially the same as the conduct constituting the contravention.
1317N
Criminal proceedings during civil proceedings
(1) Proceedings for a declaration of
contravention or pecuniary penalty order against a person are stayed if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute
the contravention.
(2) The proceedings for the declaration or order
may be resumed if the person is not convicted of the offence. Otherwise, the
proceedings for the declaration or order are dismissed.
1317P
Criminal proceedings after civil proceedings
(1) Subject to subsection (2), criminal
proceedings may be started against a person for conduct that is substantially
the same as conduct constituting a contravention of a civil penalty provision
regardless of whether:
(a) a declaration of contravention has
been made against the person; or
(b) a pecuniary penalty order has been
made against the person; or
(c) a compensation order has been made
against the person; or
(d) the person has been disqualified
from managing a corporation under Part 2D.6; or
(e) an order has been made against the
person by ASIC under section 920A (banning orders) or by the Court under
section 921A (disqualification by Court).
(2) Subsection (1) does not apply if:
(a) an infringement notice is issued
to the person for an alleged contravention of subsection 674(2) or 675(2); and
(b) the infringement notice is not
withdrawn under section 1317DAI.
1317Q
Evidence given in proceedings for penalty not admissible in criminal
proceedings
Evidence of information given or
evidence of production of documents by an individual is not admissible in criminal
proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a pecuniary penalty order
against the individual for a contravention of a civil penalty provision
(whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the contravention.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the individual in the
proceedings for the pecuniary penalty order.
1317R
ASIC requiring person to assist
(1) ASIC may require a person to give all
reasonable assistance in connection with:
(a) an application for a declaration
of contravention or a pecuniary penalty order; or
(b) criminal proceedings for an
offence against this Act.
(2) ASIC can require the person to assist in
connection with an application for a declaration or order if, and only if:
(a) it appears to ASIC that someone other
than the person required to assist may have contravened a civil penalty
provision; and
(b) ASIC suspects or believes that the
person required to assist can give information relevant to the application.
(3) ASIC can require the person to assist in
connection with criminal proceedings if, and only if:
(a) it appears to ASIC that the person
required to assist is unlikely to be a defendant in the proceedings; and
(b) the person required to assist is,
in relation to a person who is or should be a defendant in the proceedings:
(i) an employee or agent
(including a banker or auditor) of the other person; or
(ii) if the other person is
a corporation—an officer or employee of the other person; or
(iii) if the other person is
an individual—a partner of the other person.
(4) ASIC can require the person to assist
regardless of whether:
(a) an application for the declaration
or penalty order has actually been made; or
(b) criminal proceedings for the
offence have actually begun.
(5) The person cannot be required to assist
if they are or have been a lawyer for:
(a) in an application for a
declaration or penalty order—the person suspected of the contravention; or
(b) in criminal proceedings—a
defendant or likely defendant in the proceedings.
(6) The requirement to assist must be given
in writing.
(7) The Court may order the person to comply
with the requirement in a specified way. Only ASIC may apply to the Court for
an order under this subsection.
Note: The person must comply with the requirement
and may commit an offence if they do not, even if there is no order under this subsection (see
section 104 and subsection 1311(1)).
(8) This section does not limit and is not
limited by section 49 of the ASIC Act.
1317S
Relief from liability for contravention of civil penalty provision
(1) In this section:
eligible proceedings:
(a) means proceedings for a
contravention of a civil penalty provision (including proceedings under section 588M,
588W, 1317H or 1317HA); and
(b) does not include proceedings for
an offence (except so far as the proceedings relate to the question whether the
court should make an order under section 588K, 1317H or 1317HA).
(2) If:
(a) eligible proceedings are brought
against a person; and
(b) in the proceedings it appears to
the court that the person has, or may have, contravened a civil penalty
provision but that:
(i) the person has acted
honestly; and
(ii) having regard to all
the circumstances of the case (including, where applicable, those connected
with the person’s appointment as an officer, or employment as an employee, of a
corporation or of a Part 5.7 body), the person ought fairly to be excused
for the contravention;
the court may relieve the person either wholly or partly
from a liability to which the person would otherwise be subject, or that might
otherwise be imposed on the person, because of the contravention.
(3) In determining under subsection (2)
whether a person ought fairly to be excused for a contravention of section 588G,
the matters to which regard is to be had include, but are not limited to:
(a) any action the person took with a
view to appointing an administrator of the company or Part 5.7 body; and
(b) when that action was taken; and
(c) the results of that action.
(4) If a person thinks that eligible proceedings
will or may be begun against them, they may apply to the Court for relief.
(5) On an application under subsection (4),
the Court may grant relief under subsection (2) as if the eligible
proceedings had been begun in the Court.
(6) For the purposes of subsection (2)
as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to
the court is a reference to the judge; and
(b) the relief that may be granted
includes withdrawing the case in whole or in part from the jury and directing
judgment to be entered for the defendant on such terms as to costs as the judge
thinks appropriate.
(7) Nothing in this section limits, or is
limited by, section 1318.
Part 9.5—Powers of Courts
1318
Power to grant relief
(1) If, in any civil proceeding against a
person to whom this section applies for negligence, default, breach of trust or
breach of duty in a capacity as such a person, it appears to the court before
which the proceedings are taken that the person is or may be liable in respect
of the negligence, default or breach but that the person has acted honestly and
that, having regard to all the circumstances of the case, including those
connected with the person’s appointment, the person ought fairly to be excused
for the negligence, default or breach, the court may relieve the person either
wholly or partly from liability on such terms as the court thinks fit.
(2) Where a person to whom this section
applies has reason to apprehend that any claim will or might be made against
the person in respect of any negligence, default, breach of trust or breach of
duty in a capacity as such a person, the person may apply to the Court for
relief, and the Court has the same power to relieve the person as it would have
had under subsection (1) if it had been a court before which proceedings
against the person for negligence, default, breach of trust or breach of duty
had been brought.
(3) Where a case to which subsection (1)
applies is being tried by a judge with a jury, the judge after hearing the
evidence may, if he or she is satisfied that the defendant ought pursuant to
that subsection to be relieved either wholly or partly from the liability
sought to be enforced against the person, withdraw the case in whole or in part
from the jury and forthwith direct judgment to be entered for the defendant on
such terms as to costs or otherwise as the judge thinks proper.
(4) This section applies to a person who is:
(a) an officer or employee of a
corporation; or
(b) an auditor of a corporation,
whether or not the person is an officer or employee of the corporation; or
(c) an expert in relation to a matter:
(i) relating to a
corporation; and
(ii) in relation to which
the civil proceeding has been taken or the claim will or might arise; or
(d) a receiver, receiver and manager,
liquidator or other person appointed or directed by the Court to carry out any
duty under this Act in relation to a corporation.
(5) This section does not apply to a
corporation that is an Aboriginal and Torres Strait Islander corporation.
Note: Similar provision is made in relation to
Aboriginal and Torres Strait Islander corporations under section 576‑1
of the Corporations (Aboriginal and Torres Strait Islander)
Act 2006.
1319
Power of Court to give directions with respect to meetings ordered by the Court
Where, under this Act, the Court orders
a meeting to be convened, the Court may, subject to this Act, give such
directions with respect to the convening, holding or conduct of the meeting,
and such ancillary or consequential directions in relation to the meeting, as
it thinks fit.
1321
Appeals from decisions of receivers, liquidators etc.
(1) A person aggrieved by any act, omission
or decision of:
(a) a person administering a
compromise, arrangement or scheme referred to in Part 5.1; or
(b) a receiver, or a receiver and
manager, of property of a corporation; or
(c) an administrator of a company; or
(ca) an administrator of a deed of
company arrangement executed by a company; or
(d) a
liquidator or provisional liquidator of a company;
may appeal to the Court in respect of the act, omission or
decision and the Court may confirm, reverse or modify the act or decision, or
remedy the omission, as the case may be, and make such orders and give such
directions as it thinks fit.
(2) Paragraph (1)(b) does not apply to a
corporation that is an Aboriginal and Torres Strait Islander corporation.
Note: Similar provision is made in relation to
Aboriginal and Torres Strait Islander corporations under section 576‑10
of the Corporations (Aboriginal and Torres Strait Islander)
Act 2006.
1322
Irregularities
(1) In this section, unless the contrary
intention appears:
(a) a reference to a proceeding under
this Act is a reference to any proceeding whether a legal proceeding or not;
and
(b) a reference to a procedural
irregularity includes a reference to:
(i) the absence of a
quorum at a meeting of a corporation, at a meeting of directors or creditors of
a corporation, at a joint meeting of creditors and members of a corporation or
at a meeting of members of a registered scheme; and
(ii) a defect, irregularity
or deficiency of notice or time.
(2) A proceeding under this Act is not
invalidated because of any procedural irregularity unless the Court is of the
opinion that the irregularity has caused or may cause substantial injustice
that cannot be remedied by any order of the Court and by order declares the
proceeding to be invalid.
(3) A meeting held for the purposes of this
Act, or a meeting notice of which is required to be given in accordance with
the provisions of this Act, or any proceeding at such a meeting, is not
invalidated only because of the accidental omission to give notice of the
meeting or the non‑receipt by any person of notice of the meeting, unless
the Court, on the application of the person concerned, a person entitled to
attend the meeting or ASIC, declares proceedings at the meeting to be void.
(3AA) A meeting held for the purposes of this Act,
or a meeting notice of which is required to be given in accordance with the
provisions of this Act, or any proceeding at such a meeting, is not invalidated
only because of the inability of a person to access the notice of meeting,
unless the Court, on the application of the person concerned, a person entitled
to attend the meeting or ASIC, declares proceedings at the meeting to be void.
Note: Under paragraph 249J(3)(cb), a company may, in
certain circumstances, give a member notice of a meeting by notifying the
member that the notice of meeting is available and how the member may access
the notice of meeting.
(3A) If a member does not have a reasonable
opportunity to participate in a meeting of members, or part of a meeting of
members, held at 2 or more venues, the meeting will only be invalid on that
ground if:
(a) the Court is of the opinion that:
(i) a substantial
injustice has been caused or may be caused; and
(ii) the injustice cannot
be remedied by any order of the Court; and
(b) the Court declares the meeting or
proceeding (or that part of it) invalid.
(3B) If voting rights are exercised in
contravention of subsection 259D(3) (company controlling entity that holds
shares in it), the meeting or the resolution on which the voting rights were
exercised will only be invalid on that ground if:
(a) the court is of the opinion that:
(i) a substantial
injustice has been caused or may be caused; and
(ii) the injustice cannot
be remedied by any order of the court; and
(b) the court declares the meeting or
resolution invalid.
(4) Subject to the following provisions of
this section but without limiting the generality of any other provision of this
Act, the Court may, on application by any interested person, make all or any of
the following orders, either unconditionally or subject to such conditions as
the Court imposes:
(a) an order declaring that any act,
matter or thing purporting to have been done, or any proceeding purporting to
have been instituted or taken, under this Act or in relation to a corporation
is not invalid by reason of any contravention of a provision of this Act or a
provision of the constitution of a corporation;
(b) an order directing the
rectification of any register kept by ASIC under this Act;
(c) an order relieving a person in
whole or in part from any civil liability in respect of a contravention or
failure of a kind referred to in paragraph (a);
(d) an
order extending the period for doing any act, matter or thing or instituting or
taking any proceeding under this Act or in relation to a corporation (including
an order extending a period where the period concerned ended before the
application for the order was made) or abridging the period for doing such an
act, matter or thing or instituting or taking such a proceeding;
and may make such consequential or ancillary orders as the
Court thinks fit.
(5) An order may be made under paragraph (4)(a)
or (c) notwithstanding that the contravention or failure referred to in the
paragraph concerned resulted in the commission of an offence.
(6) The Court must not make an order under
this section unless it is satisfied:
(a) in the case of an order referred
to in paragraph (4)(a):
(i) that the act, matter
or thing, or the proceeding, referred to in that paragraph is essentially of a
procedural nature;
(ii) that the person or
persons concerned in or party to the contravention or failure acted honestly;
or
(iii) that it is just and
equitable that the order be made; and
(b) in the case of an order referred
to in paragraph (4)(c)—that the person subject to the civil liability
concerned acted honestly; and
(c) in every case—that no substantial
injustice has been or is likely to be caused to any person.
1323
Power of Court to prohibit payment or transfer of money, financial products or
other property
(1) Where:
(a) an investigation is being carried
out under the ASIC Act or this Act in relation to an act or omission by a
person, being an act or omission that constitutes or may constitute a
contravention of this Act; or
(b) a prosecution has been begun
against a person for a contravention of this Act; or
(c) a
civil proceeding has been begun against a person under this Act;
and the Court considers it necessary or desirable to do so
for the purpose of protecting the interests of a person (in this section called
an aggrieved person) to whom the person referred to in paragraph (a),
(b) or (c), as the case may be, (in this section called the relevant
person), is liable, or may be or become liable, to pay money, whether
in respect of a debt, by way of damages or compensation or otherwise, or to
account for financial products or other property, the Court may, on application
by ASIC or by an aggrieved person, make one or more of the following orders:
(d) an order prohibiting a person who
is indebted to the relevant person or to an associate of the relevant person
from making a payment in total or partial discharge of the debt to, or to
another person at the direction or request of, the person to whom the debt is
owed;
(e) an order prohibiting a person
holding money, financial products or other property, on behalf of the relevant
person, or on behalf of an associate of the relevant person, from paying all or
any of the money, or transferring, or otherwise parting with possession of, the
financial products or other property, to, or to another person at the direction
or request of, the person on whose behalf the money, financial products or
other property, is or are held;
(f) an order prohibiting the taking
or sending out of this jurisdiction, or out of Australia, by a person of money
of the relevant person or of an associate of the relevant person;
(g) an order prohibiting the taking,
sending or transfer by a person of financial products or other property of the
relevant person, or of an associate of the relevant person:
(i) from a place in this
jurisdiction to a place outside this jurisdiction (including the transfer of
financial products from a register in this jurisdiction to a register outside
this jurisdiction); or
(ii) from a place in Australia
to a place outside Australia (including the transfer of financial products from
a register in Australia to a register outside Australia);
(h) an order appointing:
(i) if the relevant person
is a natural person—a receiver or trustee, having such powers as the Court
orders, of the property or of part of the property of that person; or
(ii) if the relevant person
is a body corporate—a receiver or receiver and manager, having such powers as
the Court orders, of the property or of part of the property of that person;
(j) if the relevant person is a
natural person—an order requiring that person to deliver up to the Court his or
her passport and such other documents as the Court thinks fit;
(k) if the relevant person is a
natural person—an order prohibiting that person from leaving this jurisdiction,
or Australia, without the consent of the Court.
(2A) A reference in paragraph (1)(g) or (h)
to property of a person includes a reference to property that the person holds
otherwise than as sole beneficial owner, for example:
(a) as trustee for, as nominee for, or
otherwise on behalf of or on account of, another person; or
(b) in a fiduciary capacity.
(2B) Subsection (2A) is to avoid doubt, is
not to limit the generality of anything in subsection (1) and is not to
affect by implication the interpretation of any other provision of this Act.
(2) An order under subsection (1)
prohibiting conduct may prohibit the conduct either absolutely or subject to
conditions.
(3) Where an application is made to the Court
for an order under subsection (1), the Court may, if in the opinion of the
Court it is desirable to do so, before considering the application, grant an
interim order, being an order of the kind applied for that is expressed to have
effect pending the determination of the application.
(4) On an application under subsection (1),
the Court must not require the applicant or any other person, as a condition of
granting an interim order under subsection (3), to give an undertaking as
to damages.
(5) Where the
Court has made an order under this section on a person’s application, the Court
may, on application by that person or by any person affected by the order, make
a further order discharging or varying the first‑mentioned order.
(6) An order made under subsection (1)
or (2) may be expressed to operate for a specified period or until the order is
discharged by a further order under this section.
(7) Nothing in this section affects the
powers that the Court has apart from this section.
(8) This section has effect subject to the Bankruptcy
Act 1966.
(9) A person must not contravene an order by
the Court under this section that is applicable to the person.
(10) An offence based on subsection (9) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
1324
Injunctions
(1) Where a person has engaged, is engaging
or is proposing to engage in conduct that constituted, constitutes or would
constitute:
(a) a contravention of this Act; or
(b) attempting to contravene this Act;
or
(c) aiding, abetting, counselling or
procuring a person to contravene this Act; or
(d) inducing or attempting to induce,
whether by threats, promises or otherwise, a person to contravene this Act; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of this Act; or
(f) conspiring
with others to contravene this Act;
the Court may, on the application of ASIC, or of a person
whose interests have been, are or would be affected by the conduct, grant an
injunction, on such terms as the Court thinks appropriate, restraining the
first‑mentioned person from engaging in the conduct and, if in the
opinion of the Court it is desirable to do so, requiring that person to do any
act or thing.
(1A) For the
purposes of subsection (1):
(a) a contravention of this Act
affects the interests of a creditor or member of a company if the insolvency of
the company is an element of the contravention; and
(b) a company’s contravention
of:
(i) paragraph 257A(1)(a)
(share buy‑back not to prejudice ability to pay creditors); or
(ia) paragraph 256B(1)(b)
(share capital reduction not to prejudice ability to pay creditors); or
(ii) paragraph 260A(1)(a)
(financial assistance for share acquisition not to prejudice company or
shareholders or ability to pay creditors);
affects the interests of
a creditor or member of the company; and
(c) a company’s contravention of
paragraph 256B(1)(a) (fair and reasonable test for share capital reduction)
affects the interests of a member of the company.
This subsection does not limit subsection (1) in any
way.
(1B) If the ground relied on in an application
for an injunction is conduct or proposed conduct of a company or other person
that it is alleged constitutes, or would constitute:
(a) a contravention of paragraph
256B(1)(a) or (b), section 257A or paragraph 260A(1)(a); or
(b) a contravention of a provision of
this Act involving the insolvency of the company because of:
(i) the company making a
reduction of its share capital to which Division 1 of Part 2J.1
applies; or
(ii) the company buying
back its shares; or
(iii) the company giving
financial assistance to which Part 2J.3 applies;
the Court must assume that the conduct constitutes, or
would constitute, a contravention of that paragraph, section or provision
unless the company or person proves otherwise.
(2) Where a person has refused or failed, is
refusing or failing, or is proposing to refuse or fail, to do an act or thing
that the person is required by this Act to do, the Court may, on the
application of:
(a) ASIC; or
(b) any
person whose interests have been, are or would be affected by the refusal or
failure to do that act or thing;
grant an injunction, on such terms as the Court thinks
appropriate, requiring the first‑mentioned person to do that act or
thing.
(3) Where an application for an injunction
under subsection (1) or (2) has been made, the Court may, if the Court
determines it to be appropriate, grant an injunction by consent of all the
parties to the proceedings, whether or not the Court is satisfied that that
subsection applies.
(4) Where in the opinion of the Court it is
desirable to do so, the Court may grant an interim injunction pending
determination of an application under subsection (1).
(5) The Court may discharge or vary an
injunction granted under subsection (1), (2) or (4).
(6) The power of the Court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person engages in conduct of that kind.
(7) The power of the Court to grant an
injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the
Court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that act or thing; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person refuses or fails to do that act or thing.
(8) Where ASIC applies to the Court for the
grant of an injunction under this section, the Court must not require the
applicant or any other person, as a condition of granting an interim
injunction, to give an undertaking as to damages.
(9) In proceedings under this section against
a person the Court may make an order under section 1323 in respect of the
person.
(10) Where the Court has power under this
section to grant an injunction restraining a person from engaging in particular
conduct, or requiring a person to do a particular act or thing, the Court may,
either in addition to or in substitution for the grant of the injunction, order
that person to pay damages to any other person.
1324A
Provisions relating to prosecutions
In the prosecution of a person for an
offence in respect of a contravention of a provision of Chapter 5C, 6CA or
6D or Part 7.10, the Court may do either or both of the following:
(a) grant an injunction under section 1324
against the person in relation to:
(i) the conduct that constitutes,
or is alleged to constitute, the offence; or
(ii) other conduct of that
kind
(b) make an order under section 1324B
in respect of the person.
1324B
Order to disclose information or publish advertisements
Without limiting section 1324, if,
on the application of ASIC, the Court is satisfied that a person has engaged in
conduct constituting a contravention of a provision of Chapter 5C, 6CA or
6D or Part 7.10, the Court may make either or both of the following orders
against that person or a person involved in the contravention:
(a) an order requiring the person to
whom it is directed to disclose, in the manner specified in the order, to:
(i) the public; or
(ii) a particular person;
or
(iii) a particular class of
persons;
the information, or information
of a kind, that is specified in the order and is in the person’s possession or
to which the person has access;
(b) an order requiring the person to
whom it is directed to publish, at the person’s own expense, in the manner and
at times specified in the order, advertisements whose terms are specified in,
or are to be determined in accordance with, the order.
1325
Other orders
(1) Where, in a proceeding instituted under,
or for a contravention of, Chapter 5C, 6CA or 6D or Part 7.10, the
Court finds that a person who is a party to the proceeding has suffered, or is
likely to suffer, loss or damage because of conduct of another person that was
engaged in in contravention of Chapter 5C, 6CA or 6D or Part 7.10,
the Court may, whether or not it grants an injunction, or makes an order, under
any other provision of this Act, make such order or orders as it thinks
appropriate against the person who engaged in the conduct or a person who was
involved in the contravention (including all or any of the orders mentioned in subsection (5))
if the Court considers that the order or orders concerned will compensate the
first‑mentioned person in whole or in part for the loss or damage or will
prevent or reduce the loss or damage.
(2) The Court may, on the application of a
person who has suffered, or is likely to suffer, loss or damage because of
conduct of another person that was engaged in in contravention of Chapter 5C,
6CA or 6D or Part 7.10, or on the application of ASIC in accordance with subsection (3)
on behalf of such a person or 2 or more such persons, make such order or orders
as the Court thinks appropriate against the person who engaged in the conduct
or a person who was involved in the contravention (including all or any of the
orders mentioned in subsection (5)) if the Court considers that the order
or orders concerned will compensate the person who made the application, or the
person or any of the persons on whose behalf the application was made, in whole
or in part for the loss or damage, or will prevent or reduce the loss or damage
suffered, or likely to be suffered, by such a person.
(3) Where, in a proceeding instituted for a
contravention of Chapter 5C, 6CA or 6D or Part 7.10 or instituted by
ASIC under section 1324, a person is found to have engaged in conduct in
contravention of Chapter 5C, 6CA or 6D or Part 7.10, ASIC may make an
application under subsection (2) on behalf of one or more persons
identified in the application who have suffered, or are likely to suffer, loss
or damage by the conduct, but ASIC must not make such an application except
with the consent in writing given before the application is made by the person,
or by each of the persons, on whose behalf the application is made.
(4) An application under subsection (2)
may be made within 6 years after the day on which the cause of action arose.
(5) The orders referred to in subsections (1)
and (2) are:
(a) an order declaring the whole or
any part of a contract made between the person who suffered, or is likely to
suffer, the loss or damage and the person who engaged in the conduct or a
person who was involved in the contravention constituted by the conduct, or of
a collateral arrangement relating to such a contract, to be void and, if the
Court thinks fit, to have been void ab initio or at all times on and
after a specified day before the order is made; and
(b) an order varying such a contract
or arrangement in such manner as is specified in the order and, if the Court
thinks fit, declaring the contract or arrangement to have had effect as so
varied on and after a specified day before the order is made; and
(c) an order refusing to enforce any
or all of the provisions of such a contract; and
(d) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to refund money or return property to the person who
suffered the loss or damage; and
(e) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to pay to the person who suffered the loss or damage
the amount of the loss or damage; and
(f) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct, at the person’s own expense, to supply specified
services to the person who suffered, or is likely to suffer, the loss or
damage.
(5A) Subsections (1) and (2) have effect
subject to section 1044B.
Note: Section 1044B may limit the liability,
under an order under subsection (1) or (2) of this section, of a person
for his or her contravention of section 1041H (Misleading or deceptive
conduct) or involvement in such a contravention.
(6) Where an application is made for an order
under this section against a person, the Court may make an order under section 1323
in respect of the person.
1325A
Orders if contravention of Chapter 6, 6A, 6B or 6C
(1) The Court may make any order or orders
(including a remedial order) that it considers appropriate if a person:
(a) contravenes a provision of Chapter 6,
6A, 6B or 6C; or
(b) contravenes a condition on a
consent given by ASIC under section 652B; or
(c) states in a notice under section 672B
about securities that they do not know particular information about:
(i) the securities; or
(ii) someone who has a
relevant interest in, or has given instructions in relation to, the securities.
Note 1: Section 9 defines remedial order.
Note 2: Sections 659B and 659C deal with court
proceedings during and after a takeover bid.
(2) The Court may make any order or orders
(including a remedial order) that it considers appropriate if:
(a) the consideration offered under a
takeover bid is or includes securities; and
(b) the offers under the bid or the
bidder’s statement states or implies that the securities will be able to be
traded on a financial market (whether in Australia or elsewhere) and:
(i) an application for
admission to quotation is not made within 7 days after the start of the bid
period; or
(ii) permission for
admission to quotation is not granted within 7 days after the end of the bid
period.
Note: Section 9 defines remedial order.
(3) An order under this section may be made
on application by the following:
(a) ASIC;
(b) the company, or the responsible
entity of the registered scheme, whose securities are involved in the
contravention;
(c) a member or former member of that
company or scheme;
(d) a person from whom the relevant
interest in the securities were acquired;
(e) a person whose interests are
affected by the contravention.
1325B
Court may order bidder to make offers
(1) If a bidder making a takeover bid for a
class of securities contravenes section 631 by failing to make offers
under the bid within time and ASIC applies for an order under this section, the
Court may:
(a) order the bidder to send, to each
holder of securities in that class, an offer to which the bidder’s statement
relates within a specified time; and
(b) make any ancillary orders it
thinks appropriate including orders that the bidder:
(i) send notices setting
out specified information with the offer; and
(ii) send copies of the
notice within a specified period to the target and, if the target is listed, to
the relevant market operator; and
(iii) lodge a copy of the
notice with ASIC within a specified period.
(2) Offers sent in accordance with an order
under this section are taken to be made under a takeover bid.
1325C
Unfair or unconscionable agreements, payments or benefits
(1) The Court may make orders under subsection (2)
if:
(a) a body corporate gives, or enters
into an agreement to give, a director or secretary of the body corporate or a
related body corporate a benefit (including a payment or an agreement to employ
them, or engage their services, for a fixed period); and
(b) the agreement is entered into or
the benefit is given:
(i) within 12 months after
the start of the bid period for a takeover bid for the securities of the body
corporate or a related body corporate; or
(ii) at a time when the
directors of the body corporate have reason to believe that a takeover bid is
to be made in respect of securities of the body corporate or a related body
corporate; and
(c) the Court is satisfied that the
agreement or benefit was unfair or unconscionable having regard to the
interests of the body corporate.
(2) The Court may:
(a) declare the agreement, or any part
of it, to be void or to have always been void; or
(b) direct a person to whom a benefit
is given, or another specified person, to:
(i) make a payment or
transfer property to the body corporate; or
(ii) do any other act for
the benefit of the body corporate; or
(c) make any other order it considers
appropriate.
(3) This section does not apply to an
agreement or benefit that has been approved by an ordinary resolution of the
body corporate (whether before or after the agreement was entered into or the
benefit given) with no vote being cast by the person who is to receive the
benefit or their associates.
(4) An order under this section may be made
on application by:
(a) the body corporate; or
(b) ASIC; or
(c) members who together hold shares
carrying at least 10% of the votes attached to voting shares in the body
corporate or a related body corporate;
within 12 months, or any longer period that the Court
thinks appropriate in the circumstances, after the agreement is entered into or
the benefit given.
1325D
Contravention due to inadvertence etc.
(1) The Court may declare that any act,
document or matter:
(a) is not invalid merely because a
person has contravened a provision of Chapter 6, 6A, 6B or 6C; and
(b) has had effect at all times as if
there had been no contravention;
if the Court is satisfied that the contravention ought to
be excused in all the circumstances.
(2) An application for an order under subsection (1)
may be made by any interested person.
(3) If the Court is satisfied that in all the
circumstances a contravention of a provision of Chapter 6, 6A, 6B or 6C
ought to be excused, the Court must not make an order under section 1325A,
1325B or 1325C other than:
(a) an order restraining the exercise
of voting or other rights attached to securities; or
(b) an order that an exercise of
voting or other rights attached to securities be disregarded.
(4) In determining whether or not a
contravention of a provision by a person ought to be excused, have regard to
the contravention being caused by any of the following:
(a) the person’s inadvertence or
mistake;
(b) the person not having been aware
of a relevant fact or occurrence;
(c) circumstances beyond the control
of the person.
(5) This section applies notwithstanding
anything contained in any other provision of this Chapter.
1325E
Orders to secure compliance
In order to secure compliance with an
order under section 1325A, 1325B or 1325C, the Court may direct a person
to:
(a) do a specified act; or
(b) refrain from doing a specified
act.
1326
Effect of sections 1323, 1324 and 1325
Nothing in any of sections 1323,
1324, 1324A, 1324B, and 1325 limits the generality of anything else in any of
those sections.
1327
Power of Court to punish for contempt of Court
Nothing in a provision of this Act that
provides:
(a) that a person must not contravene
an order of the Court; or
(b) that
a person who contravenes an order of the Court contravenes a provision of this
Act or is guilty of an offence;
affects the powers of the Court in relation to the
punishment of contempts of the Court.
Part 9.6—Proceedings
1330
ASIC’s power to intervene in proceedings
(1) ASIC may intervene in any proceeding
relating to a matter arising under this Act.
(2) Where ASIC intervenes in a proceeding
referred to in subsection (1), ASIC is taken to be a party to the
proceeding and, subject to this Act, has all the rights, duties and liabilities
of such a party.
(3) Without limiting the generality of subsection (2),
ASIC may appear and be represented in any proceeding in which it wishes to
intervene pursuant to subsection (1):
(a) by a staff member of ASIC; or
(b) by a natural person to whom, or by
an officer or employee of a person or body to whom or to which, ASIC has
delegated its functions and powers under this Act or such of those functions
and powers as relate to a matter to which the proceeding relates; or
(c) by solicitor or counsel.
1331
Civil proceedings not to be stayed
No civil proceedings under this Act are
to be stayed merely because the proceeding discloses, or arises out of, the
commission of an offence.
1332
Standard of proof
Where, in proceedings other than
proceedings for an offence, it is necessary to establish, or for the Court to
be satisfied, for any purpose relating to a matter arising under this Act,
that:
(a) a person has contravened a
provision of this Act; or
(b) default has been made in complying
with a provision of this Act; or
(c) an act or omission was unlawful by
virtue of a provision of this Act; or
(d) a
person has been in any way, by act or omission, directly or indirectly,
knowingly concerned in or party to a contravention, or a default in complying
with, a provision of this Act;
it is sufficient if the matter referred to in paragraph (a),
(b), (c) or (d) is established, or the Court is so satisfied, as the case may
be, on the balance of probabilities.
1333
Evidence of contravention
For the purposes of this Act, a
certificate that:
(a) purports to be signed by the
Registrar or other proper officer of an Australian court; and
(b) states:
(i) that a person was
convicted by that court on a specified day of a specified offence; or
(ii) that
a person charged before that court with a specified offence was, on a specified
day, found in that court to have committed the offence but that the court did
not proceed to convict the person of the offence;
is, unless it is proved that the conviction was quashed or
set aside, or that the finding was set aside or reversed, as the case may be,
conclusive evidence:
(c) if subparagraph (b)(i)
applies—that the person was convicted of the offence on that day; and
(d) if the offence was constituted by
a contravention of a provision of a law—that the person contravened that
provision.
1335
Costs
(1) Where a corporation is plaintiff in any
action or other legal proceeding, the court having jurisdiction in the matter
may, if it appears by credible testimony that there is reason to believe that
the corporation will be unable to pay the costs of the defendant if successful
in his, her or its defence, require sufficient security to be given for those
costs and stay all proceedings until the security is given.
(1A) Subsection (1) does not apply to a
corporation that is an Aboriginal and Torres Strait Islander corporation.
Note: Similar provision is made in relation to
Aboriginal and Torres Strait Islander corporations under section 581‑20
of the Corporations (Aboriginal and Torres Strait Islander)
Act 2006.
(2) The costs of any proceeding before a
court under this Act are to be borne by such party to the proceeding as the
court, in its discretion, directs.
1336
Vesting of property
(1) Where an order is made by a court under
this Act vesting property in a person:
(a) subject to subsection (2),
the property forthwith vests in the person named in the order without any
conveyance, transfer or assignment; and
(b) the person who applied for the
order must, within 7 days after the passing and entering of the order, lodge an
office copy of the order with such person (if any) as is specified for the
purpose in the order.
(2) Where:
(a) the property to which an order
referred to in subsection (1) relates is property the transfer or
transmission of which may be registered under a law of the Commonwealth, of a
State or of a Territory; and
(b) that
law enables the registration of such an order;
the property, notwithstanding that it vests in equity in
the person named in the order, does not vest in that person at law until the
requirements of the law referred to in paragraph (a) have been complied
with.
(3) Where:
(a) property vests in a person by
force of this Act; and
(b) the property is property the
transfer or transmission of which may be registered under a law of the Commonwealth,
of a State or of a Territory; and
(c) that
law enables the person to be registered as the owner of that property;
that property, notwithstanding that it vests in equity in
that person by force of this Act, does not vest in that person at law until the
requirements of the law referred to in paragraph (b) have been complied
with.
Part 9.6A—Jurisdiction and procedure of Courts
Division 1—Civil jurisdiction
Subdivision A—Preliminary
1337A
Operation of Division
(1) This Division deals with:
(a) the jurisdiction of courts in
respect of civil matters arising under the Corporations legislation; and
(b) the jurisdiction of courts in
respect of matters arising under the Administrative Decisions (Judicial
Review) Act 1977 involving or related to decisions made under the
Corporations legislation by Commonwealth authorities and officers of the
Commonwealth; and
(c) the jurisdiction of courts in
civil matters in respect of decisions made by officers of the Commonwealth to
prosecute persons for offences against the Corporations legislation and related
criminal justice process decisions.
(2) This Division operates to the exclusion
of:
(a) the Jurisdiction of Courts
(Cross‑vesting) Act 1987; and
(b) section 39B of the Judiciary
Act 1903.
(3) This Division does not limit the
operation of the provisions of the Judiciary Act 1903 other than section 39B.
(4) Without limiting subsection (3),
this Division does not limit the operation of subsection 39(2) of the Judiciary
Act 1903 in relation to civil matters arising under the Corporations
legislation.
(5) Nothing in this Division affects any
other jurisdiction of any court.
Subdivision B—Conferral of jurisdiction
1337B
Jurisdiction of Federal Court and State and Territory Supreme Courts
(1) Jurisdiction is conferred on the Federal
Court of Australia with respect to civil matters arising under the Corporations
legislation.
(2) Subject to section 9 of the Administrative
Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the
Supreme Court of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to civil matters arising under the
Corporations legislation.
(3) Despite section 9 of the Administrative
Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the
Supreme Court of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to matters arising under that Act involving
or related to decisions made, or proposed or required to be made, under the
Corporations legislation by a Commonwealth authority or an officer of the
Commonwealth.
Note 1: The Federal Court also has jurisdiction with
respect to these matters under that Act.
Note 2: A Supreme Court may be required to transfer a
proceeding with respect to such a matter to the Federal Court: see subsection
1337H(3).
(4) Subsection (3) applies to a decision
made, or proposed or required to be made:
(a) whether or not in the exercise of
a discretion; and
(b) whether before or after that
subsection commences.
(5) The jurisdiction conferred on a Supreme
Court by subsection (2) or (3) is not limited by any limits to which any
other jurisdiction of that Supreme Court may be subject.
(6) This section has effect subject to
section 1337D.
1337C
Jurisdiction of Family Court and State Family Courts
(1) Jurisdiction is conferred on the Family
Court with respect to civil matters arising under the Corporations legislation.
(2) Subject to section 9 of the Administrative
Decisions (Judicial Review) Act 1977, jurisdiction is conferred on each
State Family Court with respect to civil matters arising under the Corporations
legislation.
(3) The jurisdiction conferred on a State
Family Court by subsection (2) is not limited by any limits to which any
other jurisdiction of the State Family Court may be subject.
(4) This section has effect subject to
section 1337D.
1337D
Jurisdiction of courts (decisions to prosecute and related criminal justice
process decisions made by Commonwealth officers)
(1) If a decision to prosecute a person for
an offence against the Corporations legislation has been made by an officer or
officers of the Commonwealth and the prosecution is proposed to be commenced in
a State or Territory court:
(a) neither the Federal Court nor the
Family Court has jurisdiction with respect to any matter in which a person
seeks a writ of mandamus or prohibition or an injunction against the officer or
officers in relation to that decision; and
(b) jurisdiction with respect to any
such matter is conferred on the Supreme Court of the State or Territory in
which the prosecution is proposed to be commenced.
(2) Subject to subsection (3), at any
time when:
(a) a prosecution for an offence
against the Corporations legislation is before a State or Territory court; or
(b) an appeal arising out of such a
prosecution is before a State or Territory court;
the following apply:
(c) neither the Federal Court nor the
Family Court has jurisdiction with respect to any matter in which the person
who is or was the defendant in the prosecution seeks a writ of mandamus or
prohibition or an injunction against an officer or officers of the Commonwealth
in relation to a related criminal justice process decision;
(d) jurisdiction with respect to any
such matter is conferred on the Supreme Court of the State or Territory in
which the prosecution or appeal is before a court.
(3) Subsection (2) does not apply where
a person has applied for a writ of mandamus or prohibition, or an injunction,
against an officer or officers of the Commonwealth in relation to a related
criminal justice process decision before the commencement of a prosecution for
an offence against a law of the Commonwealth, or of a State or a Territory.
(4) Where subsection (3) applies, the
prosecutor may apply to the court for a permanent stay of the proceedings
referred to in that subsection and the court may grant such a stay if the court
determines that:
(a) the matters that are the subject
of the proceedings are more appropriately dealt with in the criminal justice
process; and
(b) a stay of proceedings will not
substantially prejudice the person.
(5) Subsections (1), (2), (3) and (4)
have effect despite anything in this Act or in any other law. In particular:
(a) neither this Act, nor any other
law, has the effect of giving the Federal Court or the Family Court
jurisdiction contrary to subsection (1) or (2); and
(b) neither section 9 of the Administrative
Decisions (Judicial Review) Act 1977, nor any other law, has the effect of
removing from the Supreme Court of a State, the Capital Territory or the Northern
Territory the jurisdiction given to that Court by subsection (1) or (2).
(6) In this section:
appeal includes an application for a new
trial and a proceeding to review or call in question the proceedings, decision
or jurisdiction of a court or judge.
related criminal justice process decision, in
relation to an offence, means a decision (other than a decision to prosecute)
made in the criminal justice process in relation to the offence, including:
(a) a decision in connection with the
investigation, committal for trial or prosecution of the defendant; and
(b) a decision in connection with the
appointment of investigators or inspectors for the purposes of such an
investigation; and
(c) a decision in connection with the
issue of a warrant, including a search warrant or a seizure warrant; and
(d) a decision requiring the
production of documents, the giving of information or the summoning of persons
as witnesses; and
(e) a decision in connection with an
appeal arising out of the prosecution.
1337E
Jurisdiction of lower courts
(1) Subject to section 9 of the Administrative
Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the
lower courts of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to civil matters (other than superior court
matters) arising under the Corporations legislation.
(2) The jurisdiction conferred on a lower
court by subsection (1):
(a) is subject to the court’s general
jurisdictional limits, so far as they relate to:
(i) the amounts; or
(ii) the value of property;
with which the court may deal;
but
(b) is not subject to the court’s
other jurisdictional limits.
1337F
Appeals
(1) An appeal may not be instituted from a
decision of the Federal Court to:
(a) a State or Territory court; or
(b) the Family Court.
(2) An appeal may not be instituted from a
decision of a court of the Capital Territory to:
(a) a court of a State or the Northern
Territory; or
(b) the Family Court.
(3) An appeal may not be instituted from a
decision of a court (not being a State Family Court) of a State or the Northern
Territory to:
(a) the Federal Court; or
(b) a court of another State or
Territory; or
(c) the Family Court; or
(d) a State Family Court of that
State.
(4) An appeal may not be instituted from a
decision of the Family Court to:
(a) the Federal Court; or
(b) a State or Territory court.
(5) An appeal may not be instituted from a
decision of a State Family Court of a State to:
(a) the Federal Court; or
(b) a court of another State or
Territory; or
(c) except in accordance with the law
of the State under which the State Family Court is constituted—the Supreme
Court of that State.
1337G
Courts to act in aid of each other
All courts having jurisdiction in:
(a) civil matters arising under the
Corporations legislation; or
(b) matters referred to in subsection
1337B(3);
and the officers of, or under the control of, those courts
must severally act in aid of, and be auxiliary to, each other in all those
matters.
Subdivision C—Transfer of proceedings
1337H
Transfer of proceedings by the Federal Court and State and Territory Supreme
Courts
(1) This section applies to a proceeding (the
relevant proceeding) in a court (the transferor court)
if:
(a) the relevant proceeding is:
(i) a proceeding with
respect to a civil matter arising under the Corporations legislation; or
(ii) a subsection 1337B(3)
proceeding; and
(b) the transferor court is:
(i) the Federal court; or
(ii) a State or Territory Supreme
Court.
(2) Subject to subsections (3), (4) and
(5), if it appears to the transferor court that, having regard to the interests
of justice, it is more appropriate for:
(a) the relevant proceeding; or
(b) an application in the relevant
proceeding;
to be determined by another court that has jurisdiction in
the matters for determination in the relevant proceeding or application, the
transferor court may transfer the relevant proceeding or application to that
other court.
(3) If:
(a) the relevant proceeding is a
subsection 1337B(3) proceeding; and
(b) the transferor court is a State or
Territory Supreme Court;
the transferor court must transfer the relevant proceeding
to the Federal Court unless the matter for determination in it arises out of,
or relates to, another proceeding pending in any court of that State or
Territory that:
(c) arises, or a substantial part of
which arises, under the Corporations legislation; and
(d) is not a subsection 1337B(3)
proceeding;
regardless of which proceeding was commenced first.
(4) Even if subsection (3) does not
require a State or Territory Supreme Court to transfer a subsection 1337B(3)
proceeding to the Federal Court, it may nevertheless do so if it considers that
to be appropriate, having regard to the interests of justice, including the
desirability of related proceedings being heard in the same State or Territory.
(5) If:
(a) the relevant proceeding is a
subsection 1337B(3) proceeding in relation to a matter; and
(b) the transferor court is the
Federal Court;
the transferor court may only transfer the relevant
proceeding, or an application in the relevant proceeding, to a State or
Territory Supreme Court if:
(c) the matter arises out of, or
relates to, another proceeding pending in any court of that State or Territory
that:
(i) arises, or a
substantial part of which arises, under the Corporations legislation; and
(ii) is not a subsection
1337B(3) proceeding;
regardless of which proceeding
was commenced first; and
(d) the transferor court considers the
transfer to be appropriate, having regard to the interests of justice,
including the desirability of related proceedings being heard in the same
jurisdiction.
(6) Nothing in this section confers on a
court jurisdiction that the court would not otherwise have.
(7) The fact that some references in this
section to the interests of justice include the desirability of related
proceedings being heard in the same jurisdiction does not of itself mean that
other references to the interests of justice, in this section or elsewhere in
this Act, do not include that matter.
1337J
Transfer of proceedings by Family Court and State Family Courts
(1) This section applies to a proceeding (the
relevant proceeding) in a court (the transferor court)
if:
(a) the relevant proceeding is with
respect to a civil matter arising under the Corporations legislation; and
(b) the transferor court is:
(i) the Family Court of Australia;
or
(ii) a State Family Court.
(2) If it appears to the transferor court:
(a) that the relevant proceeding
arises out of, or is related to, another proceeding pending in:
(i) the Federal Court; or
(ii) another State or
Territory court;
and that the court in which the
other proceeding is pending is the most appropriate court to determine the
relevant proceeding; or
(b) that having regard to:
(i) whether, in the
transferor court’s opinion, apart from this Division, the relevant proceeding,
or a substantial part of it, would have been incapable of being instituted in
the transferor court; and
(ii) the extent to which,
in the transferor court’s opinion, the matters for determination in the
relevant proceeding are matters not within the transferor court’s jurisdiction
apart from this Division; and
(iii) the
interests of justice;
the Federal Court, or another
State or Territory court, is the most appropriate court to determine the
relevant proceeding; or
(c) that
it is otherwise in the interests of justice that the Federal Court, or another
State or Territory court, determine the relevant proceeding;
the transferor court must transfer the relevant proceeding
to the Federal Court or to that other court.
(3) Subject to subsection (2), if it
appears to the transferor court:
(a) that the relevant proceeding
arises out of, or is related to, another proceeding pending in another court
that is:
(i) the Family Court of Australia;
or
(ii) a State Family Court;
and that has jurisdiction under
section 1337C in the matters for determination in the relevant proceeding
and that the other court is the most appropriate court to determine the
relevant proceeding; or
(b) that
it is otherwise in the interests of justice that the relevant proceeding be
determined by another court that is:
(i) the Family Court of Australia;
or
(ii) a State Family Court;
and
that has jurisdiction under section 1337C in the matters for determination
in the relevant proceeding;
the transferor court must transfer the relevant proceeding
to the other court.
(4) If:
(a) the transferor court transfers the
relevant proceeding to another court; and
(b) it appears to the transferor court
that:
(i) there is another
proceeding pending in the transferor court that arises out of, or is related
to, the relevant proceeding; and
(ii) it
is in the interests of justice that the other court also determine the other
proceeding;
the transferor court must also transfer the other
proceeding to the other court.
(5) Nothing in this section confers on a
court jurisdiction that the court would not otherwise have.
1337K
Transfer of proceedings in lower courts
(1) This section applies to a proceeding (the
relevant proceeding) in a court (the transferor court)
if:
(a) the relevant proceeding is with
respect to a civil matter arising under the Corporations legislation; and
(b) the transferor court is a lower
court of a State or Territory.
(2) If it appears to the transferor court
that, having regard to the interests of justice, it is more appropriate for:
(a) the relevant proceeding; or
(b) an application in the relevant
proceeding;
to be determined by another court that has jurisdiction in
the matters for determination in the relevant proceeding or application, the
transferor court may take action under whichever of subsections (3) and
(4) applies.
(3) If the other court is also a lower court,
the transferor court may transfer the relevant proceeding or application to the
other court.
(4) If the other court is a superior court,
the transferor court may:
(a) transfer the relevant proceeding
or application to the relevant Supreme Court; and
(b) recommend that the relevant
proceeding or application be transferred by the Supreme Court to the other
court.
(5) The relevant Supreme Court is not bound
to comply with a recommendation under subsection (4) and it may instead
decide:
(a) to deal with the relevant
proceeding or application itself; or
(b) to transfer the relevant
proceeding or application to some other court (which could be the transferor
court).
(6) Nothing in this section allows the
relevant Supreme Court to transfer the relevant proceeding or application to
another court otherwise than in accordance with section 1337H and the
other requirements of this Division.
(7) Nothing in this section confers on a
court jurisdiction that the court would not otherwise have.
(8) In this section:
relevant Supreme Court means the Supreme
Court of the State or Territory of which the transferor court is a court.
1337L
Further matters for a court to consider when deciding whether to transfer a
proceeding
In deciding whether to transfer under
section 1337H, 1337J or 1337K a proceeding or application, a court must
have regard to:
(a) the principal place of business of
any body corporate concerned in the proceeding or application; and
(b) the place or places where the
events that are the subject of the proceeding or application took place; and
(c) the other courts that have
jurisdiction to deal with the proceeding or application.
1337M
Transfer may be made at any stage
A court may transfer under section 1337H,
1337J or 1337K a proceeding or application:
(a) on the application of a party made
at any stage; or
(b) of the court’s own motion.
1337N
Transfer of documents
If, under section 1337H, 1337J or
1337K, a court (the transferor court) transfers a proceeding, or
an application in a proceeding, to another court:
(a) the Registrar or other proper
officer of the transferor court must transmit to the Registrar or other proper
officer of the other court all documents filed in the transferor court in
respect of the proceeding or application, as the case may be; and
(b) the other court must proceed as
if:
(i) the proceeding had
been originally instituted in the other court; and
(ii) the same proceedings
had been taken in the other court as were taken in the transferor court; and
(iii) in a case where an application
is transferred—the application had been made in the other court.
1337P
Conduct of proceedings
(1) Subject to sections 1337S, 1337T and
1337U, if it appears to a court that, in determining a matter for determination
in a proceeding, the court will, or will be likely to, be exercising relevant
jurisdiction, the rules of evidence and procedure to be applied in dealing with
that matter are to be the rules that:
(a) are applied in a superior court in
Australia or in an external Territory; and
(b) the court considers appropriate to
be applied in the circumstances.
(2) If a proceeding is transferred or removed
to a court (the transferee court) from another court (the transferor
court), the transferee court must deal with the proceeding as if, subject
to any order of the transferee court, the steps that had been taken for the
purposes of the proceeding in the transferor court (including the making of an
order), or similar steps, had been taken in the transferee court.
(3) In this
section:
relevant jurisdiction
means:
(a) jurisdiction conferred on the
Federal Court of Australia or the Family Court with respect to civil matters
arising under the Corporations Legislation; or
(b) jurisdiction conferred on a court
of a State, the Capital Territory or the Northern Territory with respect to
matters referred to in subsection 1337B(3).
1337Q
Rights of appearance
(1) This section applies if a proceeding (the
transferred proceeding) in a court (the transferor court)
is transferred to another court (the transferee court) under this
Division.
(2) A person who is entitled to practise as a
barrister or a solicitor, or as both a barrister and a solicitor, in the
transferor court has the same entitlements to practise in relation to:
(a) the transferred proceeding; and
(b) any
other proceeding out of which the transferred proceeding arises or to which the
transferred proceeding is related, being another proceeding that is to be
determined together with the transferred proceeding;
in the transferee court that the person would have if the
transferee court were a federal court exercising federal jurisdiction.
1337R
Limitation on appeals
An appeal does not lie from a decision
of a court:
(a) in relation to the transfer of a
proceeding under this Division; or
(b) as to which rules of evidence and
procedure are to be applied pursuant to subsection 1337P(1).
Subdivision D—Rules of court
1337S
Rules of the Federal Court
(1) The power to make rules of court
conferred by section 59 of the Federal Court of Australia Act 1976 extends
to making rules of court:
(a) with respect to proceedings, and
the practice and procedure, of the Federal Court of Australia under the
Corporations legislation; and
(b) with respect to any matter or
thing that is:
(i) required or permitted
by the Corporations legislation to be prescribed by rules within the meaning of
the Corporations legislation; or
(ii) necessary or
convenient to be prescribed by such rules for carrying out or giving effect to
the Corporations legislation; and
(c) without limitation, with respect
to costs, and with respect to rules about meetings ordered by the Federal Court
of Australia.
(2) In this section:
Corporations legislation does not include
rules of court.
1337T
Rules of the Supreme Court
(1) The Judges of the Supreme Court of the Capital
Territory, or a majority of them, may make rules of court:
(a) with respect to proceedings, and
the practice and procedure, of that court under the Corporations legislation;
and
(b) with respect to any matter or
thing that is:
(i) required or permitted
by the Corporations legislation to be prescribed by rules within the meaning of
the Corporations legislation; or
(ii) necessary or
convenient to be prescribed by such rules for carrying out or giving effect to
the Corporations legislation; and
(c) without limitation, with respect
to costs, and with respect to rules as to meetings ordered by that Court.
(2) When a lower court of the Capital Territory
is exercising jurisdiction with respect to matters arising under the Corporations
legislation, the court must apply the rules of court made under subsection (1),
with such alterations as are necessary.
(3) In this section:
Corporations legislation does not include
rules of court.
1337U
Rules of the Family Court
(1) The power to make rules of court
conferred by section 123 of the Family Law Act 1975 extends to
making rules of court:
(a) with respect to proceedings, and
the practice and procedure, of the Family Court under the Corporations
legislation; and
(b) with respect to any matter or
thing that is:
(i) required or permitted
by the Corporations legislation to be prescribed by rules within the meaning of
the Corporations legislation; or
(ii) necessary or
convenient to be prescribed by such rules for carrying out or giving effect to
the Corporations legislation; and
(c) without limitation, with respect
to costs, and with respect to rules about meetings ordered by the Family Court.
(2) In this section:
Corporations legislation does not include
rules of court.
Division 2—Criminal jurisdiction
1338A
Operation of Division
(1) This Division provides in relation to the
jurisdiction of courts in respect of criminal matters arising under the
Corporations legislation and so provides to the exclusion of sections 68,
70 and 70A of the Judiciary Act 1903.
(2) This Division does not limit the
operation of the provisions of the Judiciary Act 1903 other than
sections 68, 70 and 70A.
(3) Without limiting subsection (2),
this Division does not limit the operation of subsection 39(2) of the Judiciary
Act 1903 in relation to criminal matters arising under the Corporations
legislation.
1338B
Jurisdiction of courts
(1) Subject to this section, the several
courts of each State, the Capital Territory and the Northern Territory
exercising jurisdiction:
(a) with respect to:
(i) the summary
conviction; or
(ii) the examination and
commitment for trial on indictment; or
(iii) the
trial and conviction on indictment;
of offenders or persons charged
with offences against the laws of the State, the Capital Territory or the Northern
Territory, and with respect to:
(iv) their sentencing,
punishment and release; or
(v) their liability to make
reparation in connection with their offences; or
(vi) the forfeiture of
property in connection with their offences; or
(vii) the proceeds of their
crimes; and
(b) with respect to the hearing and
determination of:
(i) proceedings connected
with; or
(ii) appeals arising out
of; or
(iii) appeals
arising out of proceedings connected with;
any
such trial or conviction or any matter of a kind referred to in subparagraph (a)(iv),
(v), (vi) or (vii);
have the equivalent jurisdiction with respect to offenders
or persons charged with offences against the Corporations legislation.
(2) The jurisdiction conferred by subsection (1)
is not to be exercised with respect to the summary conviction, or examination
and commitment for trial, of any person except by a magistrate.
(3) The
jurisdiction conferred by subsection (1) includes jurisdiction in
accordance with provisions of a relevant law of a State, the Capital Territory
or the Northern Territory, and:
(a) the reference in paragraph (1)(b)
to “any such trial or conviction” includes a reference to any conviction or
sentencing in accordance with the provisions of a relevant law; and
(b) unless the contrary intention
appears, a reference to jurisdiction conferred by subsection (1) includes
a reference to such included jurisdiction.
(4) A person may be dealt with in accordance
with a relevant law even if, apart from this section, the offence concerned:
(a) would be required to be prosecuted
on indictment; or
(b) would be required to be prosecuted
either summarily or on indictment.
(5) For the purposes of the application of a
relevant law as provided by subsection (3):
(a) a reference in that law to an
indictable offence is taken to include a reference to an offence that may be
prosecuted on indictment; and
(b) in order to determine the sentence
that may be imposed on a person by a court pursuant to the relevant law, the
person is taken to have been prosecuted and convicted on indictment in that
court.
(6) Subject to subsection (8), the
jurisdiction conferred on a State or Territory court by subsection (1) is
conferred despite any limits as to locality of the jurisdiction of that court
under the law of that State or Territory.
(7) If:
(a) jurisdiction is conferred on a
State or Territory court in relation to the summary conviction of persons
charged with offences against the Corporations legislation by subsection (1);
and
(b) the
court is satisfied that it is appropriate to do so, having regard to all the
circumstances including the public interest;
the court may decline to exercise that jurisdiction in
relation to an offence committed in another State or Territory.
(8) The jurisdiction conferred on a court of
a State or the Northern Territory by subsection (1) in relation to:
(a) the examination and commitment for
trial on indictment; and
(b) the
trial and conviction on indictment;
of offenders or persons charged with offences against the
Corporations legislation is conferred only in relation to:
(c) offences committed outside Australia;
and
(d) offences committed, begun or
completed in the State or the Territory concerned.
(9) In this section:
appeal includes an application for a new
trial and a proceeding to review or call in question the proceedings, decision
or jurisdiction of a court or judge.
Australia does not include the coastal sea.
relevant law means a law providing that
where, in proceedings before a court, a person pleads guilty to a charge for
which he or she could be prosecuted on indictment, the person may be committed,
to a court having jurisdiction to try offences on indictment, to be sentenced
or otherwise dealt with without being tried in that last‑mentioned court.
1338C
Laws to be applied
(1) Subject to this Division, the laws of a
State, the Capital Territory or the Northern Territory respecting:
(a) the arrest and custody in the
State or Territory of offenders or persons charged with offences; and
(b) criminal
procedure in the State or Territory in relation to such persons; and
(c) the rules of evidence applied in
criminal procedure in the State or Territory in relation to such persons;
apply in the State or Territory, so far as they are
applicable, to persons who are charged with offences against the Corporations
legislation.
(2) In this section:
criminal procedure means the procedure for:
(a) the summary conviction; and
(b) the examination and commitment for
trial on indictment; and
(c) the trial and conviction on
indictment; and
(d) the
hearing and determination of appeals arising out of any such trial or
conviction or out of any related proceedings;
of offenders or persons charged with offences, and
includes the procedure for holding accused persons to bail.
Part 9.7—Unclaimed property
1339
ASIC to deal with unclaimed property
(1) Unclaimed property held by ASIC is to be
dealt with in accordance with this Part.
Note: Unclaimed property is held by ASIC for and on
behalf of the Commonwealth (see subsections 8(3) and (4) of the ASIC Act).
(2) If property becomes unclaimed property,
ASIC must:
(a) in the case of money—credit the
amount of the money to the Companies and Unclaimed Moneys Special Account; or
(b) otherwise—sell or dispose of the
property as it thinks fit and credit the amount of the proceeds to the
Companies and Unclaimed Moneys Special Account.
1340 No
liability to pay calls on shares etc.
Where unclaimed property is or includes
shares in a body corporate, neither the Commonwealth nor ASIC is subject to any
obligation:
(a) to pay any calls; or
(b) to make any contribution to the
debts and liabilities of the body corporate; or
(c) to discharge any other liability;
or
(d) to
do any other act or thing;
in respect of the shares, whether the obligation arises
before or after the shares become unclaimed property, but this section does not
affect the right of a body corporate to forfeit a share.
1341 Entitlement
to unclaimed property
(1) If an amount is not debited from the
Companies and Unclaimed Moneys Special Account in accordance with this section
within 6 years after that amount was originally credited to the Account under
subsection 1339(2), that amount must be debited from the Account.
Note: Despite being debited from the Companies and
Unclaimed Moneys Special Account, the amount remains part of the Consolidated
Revenue Fund.
(2) If:
(a) a person claims to be entitled to
an amount credited to the Companies and Unclaimed Moneys Special Account under
subsection 1339(2); and
(b) ASIC is satisfied that the person
is entitled to that amount;
ASIC must:
(c) unless paragraph (d)
applies—pay the amount to the person and debit that amount from the Account; or
(d) if the amount has already been
debited from the Account under subsection (1)—pay the amount to the person
out of money appropriated by the Parliament for the purpose.
(3) A person who is dissatisfied with the
decision of ASIC in respect of a claim made by the person in accordance with subsection (2)
may appeal to the Court and the Court may confirm, disallow or vary the
decision of ASIC.
(4) Where a person claims to be entitled to
money that has been paid to another person in accordance with this section, neither
the Commonwealth nor ASIC is under any liability to that first‑mentioned
person in respect of that money, but, if the first‑mentioned person is
entitled to that money, that person may recover that money from the other
person.
1342
Commonwealth or ASIC not liable for loss or damage
Neither the Commonwealth nor ASIC is
liable for any loss or damage suffered by a person arising out of the exercise
of, or the failure to exercise, any of the powers which are conferred on ASIC
under this Part or which ASIC has in relation to unclaimed property.
1343 Disposal
of securities if whereabouts of holder unknown
Where a person has been shown in an
appropriate register of a company as the holder of securities of the company
for a period of at least 6 years and the company has, for a period of at least
6 years:
(a) had reasonable grounds for
believing that the person was not residing at the address shown in the register
as the person’s address; and
(b) on
each occasion during that last‑mentioned period when, whether or not in
accordance with a provision of this Act, it sought to communicate with the
person, being unable after the exercise of reasonable diligence to do so;
the company may, by executing a transfer for and on behalf
of the person, transfer to ASIC:
(c) the securities; and
(d) any
rights in respect of the securities;
to be dealt with under this Part.
1343A
Disposal of interests in registered scheme if whereabouts of member unknown
If, during a period of at least 6 years
while a person has been shown in the register of members of a registered scheme
as the holder of interests in the scheme:
(a) the responsible entity has had
reasonable grounds for believing that the person was not residing at the
address shown in the register as their address; and
(b) the responsible entity’s attempts
to communicate with the person have been made using reasonable diligence but
have all been unsuccessful;
the responsible entity may, by executing a transfer for
and on behalf of the person, transfer the interests and any rights in respect
of them to ASIC to be dealt with under this Part.
Part 9.9—Miscellaneous
1344
Use of ABN
Despite any provision in this Act or any
other Act, in any case where:
(a) the ACN of a company; or
(b) the ARBN of a registered body; or
(c) the ARSN of a registered scheme;
is required or permitted to be used under a law of the
Commonwealth administered by ASIC, the ABN of the company, body or scheme may
be used instead if the last 9 digits of the ABN are the same, and in the same
order, as the last 9 digits of the ACN, ARBN or ARSN.
1345A
Minister may delegate prescribed functions and powers under this Act
(1) The Minister may, by signed instrument,
delegate to an officer of the Department such of the Minister’s functions and
powers under this Act as are prescribed.
(1A) The Minister may, by signed instrument,
delegate the function or power under subsection 147(2) or 601DC(2) to:
(a) a member of ASIC (within the
meaning of paragraph (a) of the definition of member in
subsection 5(1) of the Australian Securities and Investments Commission Act
2001); or
(b) a staff member of ASIC.
(2) A delegate is, in the performance or
exercise of a delegated function or power, subject to the Minister’s
directions.
1346
Non‑application of rule against perpetuities to certain schemes
(1) The rules of law relating to perpetuities
do not apply, and are taken never to have applied, to the trusts of any fund or
scheme for the benefit of any employee of a corporation, whether the fund or
scheme was established before, or is established after, the commencement of
this section.
(2) In this section:
(a) a reference to a corporation
includes a reference to a body corporate or society incorporated or formed, or
otherwise duly constituted, whether before, at or after the commencement of
this section, by or under:
(i) a law of the
Commonwealth, of a State or Territory, of an external Territory or of a country
outside Australia and the external Territories; or
(ii) letters patent or a
royal charter; and
(b) a reference to a fund or scheme
includes a reference to a provident, superannuation, sick, accident, assurance,
unemployment, pension or co‑operative benefit fund, scheme, arrangement
or provision or other like fund, scheme, arrangement or provision; and
(c) a reference to an employee of a
corporation includes a reference to:
(i) a director of the
corporation; and
(ii) a spouse, child,
grandchild, parent or any dependant of an employee or of a director of the
corporation.
1348
Operation of Life Insurance Act
Nothing in this Act is taken to affect
any of the provisions of the Life Insurance Act 1995.
1349
Privilege against exposure to penalty—disqualification etc.
Court or Tribunal proceeding
(1) In the case of:
(a) a civil or criminal proceeding
under, or arising out of, this Act or the ASIC Act; or
(b) a proceeding before the Tribunal
arising out of this Act or the ASIC Act;
a person is not entitled to refuse or fail to comply with
a requirement:
(c) to answer a question or give
information; or
(d) to produce a book or any other
thing; or
(e) to do any other act whatever;
on the ground that the answer or information, production
of the book or other thing, or doing that other act, as the case may be, might
tend to make the person liable to a penalty by way of:
(f) a disqualification under Part 2D.6
of this Act; or
(g) a declaration under
section 853C of this Act; or
(h) a suspension or cancellation under
section 915B of this Act; or
(i) a suspension or cancellation
under section 915C of this Act; or
(j) a banning order under
section 920A of this Act; or
(k) an order under section 921A
of this Act; or
(l) a cancellation or suspension
under Division 3 of Part 9.2 of this Act; or
(m) a requirement to give an
undertaking under paragraph 1292(9)(b) or (c) of this Act; or
(n) a cancellation or suspension under
Division 2 of Part 9.2A of this Act.
(2) Subsection (1) applies whether or
not the person is a defendant in, or a party to, the proceeding or any other
proceeding.
Statutory requirement
(3) A person is not entitled to refuse or
fail to comply with a requirement under this Act or the ASIC Act:
(a) to answer a question or give
information; or
(b) to produce a book or any other
thing; or
(c) to do any other act whatever;
on the ground that the answer or information, production
of the book or other thing, or doing that other act, as the case may be, might
tend to make the person liable to a penalty by way of:
(d) a disqualification
under Part 2D.6 of this Act; or
(e) a declaration under
section 853C of this Act; or
(f) a suspension or cancellation
under section 915B of this Act; or
(g) a suspension or cancellation under
section 915C of this Act; or
(h) a banning order under
section 920A of this Act; or
(i) an order under section 921A
of this Act; or
(j) a cancellation or suspension
under Division 3 of Part 9.2 of this Act; or
(k) a requirement to give an
undertaking under paragraph 1292(9)(b) or (c) of this Act; or
(l) a cancellation or suspension
under Division 2 of Part 9.2A of this Act.
Admissibility
(4) Paragraph 597(12A)(d) of this Act, and
paragraph 68(3)(b) of the ASIC Act, do not apply to a proceeding for the
imposition of a penalty by way of:
(a) a disqualification
under Part 2D.6 of this Act; or
(b) a declaration under
section 853C of this Act; or
(c) a suspension or cancellation under
section 915B of this Act; or
(d) a suspension or cancellation under
section 915C of this Act; or
(e) a banning order under
section 920A of this Act; or
(f) an order under section 921A
of this Act; or
(g) a cancellation or suspension under
Division 3 of Part 9.2 of this Act; or
(h) a requirement to give an
undertaking under paragraph 1292(9)(b) or (c) of this Act; or
(i) a cancellation or suspension
under Division 2 of Part 9.2A of this Act.
Other provisions
(5) Subsections (1) and (3) have effect
despite anything in:
(a) section 1317L; or
(b) any other provision of this Act;
or
(c) the ASIC Act; or
(d) the Administrative Appeals
Tribunal Act 1975.
Definition
(6) In this section:
penalty includes forfeiture.
1350
Compensation for compulsory acquisition
(1) If:
(a) apart from this section, the
operation of this Act would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the acquisition would be invalid
because of paragraph 51(xxxi) of the Constitution;
the person who acquires the property is liable to pay
compensation of a reasonable amount to the person from whom the property is
acquired in respect of the acquisition.
(2) If the 2 people do not agree on the
amount of the compensation, the person to whom compensation is payable may
institute proceedings in the Court for the recovery of such reasonable amount
as the court determines from the other person.
(3) Any damages or compensation recovered or
other remedy given in a proceeding that is commenced otherwise than under this
section is to be taken into account in assessing compensation payable in a
proceeding that is commenced under this section and that arises out of the same
event or transaction.
(4) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
Part 9.10—Fees imposed by the Corporations (Fees) Act 2001 and the
Corporations (Review Fees) Act 2003
1351
Fees are payable to the Commonwealth
(1) The fees imposed under the Corporations
(Fees) Act 2001 are payable to the Commonwealth.
(2) The fees imposed under the Corporations
(Review Fees) Act 2003 are payable to the Commonwealth.
(3) The date on which a fee imposed under the
Corporations (Review Fees) Act 2003 becomes due and payable is worked
out under this table.
|
Due date for review
fees
|
|
Item
|
For a review fee
imposed on...
|
The due date is...
|
|
1
|
a company
|
2 months after the review date to which the fee relates
|
|
2
|
a registered scheme
|
2 months after the review date to which the fee relates
|
|
3
|
a registered Australian body
|
the date prescribed by the regulations
|
|
4
|
a natural person registered as an auditor under Part 9.2
|
the date prescribed by the regulations
|
|
5
|
a natural person registered as a liquidator under Part 9.2
|
the date prescribed by the regulations
|
|
6
|
a person holding an Australian financial services licence
under Part 7.6
|
the date prescribed by the regulations
|
(4) However, a fee imposed under the Corporations
(Review Fees) Act 2003 is not payable to the Commonwealth by a company in
relation to a review date in a year if:
(a) both of the following apply:
(i) ASIC has given notice
of the proposed deregistration of the company in accordance with subsection
601AA(4);
(ii) the review date for
that year falls in the 2 month period before or after the publication of the
relevant Gazette notice; or
(b) in the case of a company, a
registered scheme or a registered Australian body—the company, scheme or body
has, in a previous year, paid the fee in respect of the review date for that
year in accordance with regulations made under the Corporations (Review
Fees) Act 2003 for the purposes of this section.
1354
Lodgment of document without payment of fee
(1) This
section applies where:
(a) a fee is payable under section 1351
for the lodgment of a document; and
(b) the document was submitted for
lodgment without payment of the fee.
(2) The document is not taken not to have
been lodged merely because of non‑payment of the fee.
1355
Doing act without payment of fee
If a fee is payable under section 1351
for a matter involving the doing of an act by the Minister or ASIC, the
Minister or ASIC may refuse to do that act until the fee is paid.
1356 Effect
of sections 1354 and 1355
Sections 1354 and 1355 have effect
despite anything in another Part of this Act.
1359
Waiver and refund of fees
Nothing in this Part, the Corporations
(Fees) Act 2001 or the Corporations (Review Fees) Act 2003 prevents
the Commonwealth from:
(a) waiving or reducing, in a
particular case or in particular classes of cases, fees that would otherwise be
payable under this Act; or
(b) refunding, in whole or in part, in
a particular case or in particular classes of cases, fees paid under this Act.
1360
Debts due to the Commonwealth
ASIC may, on behalf of the Commonwealth,
recover a debt due under this Part.
1362
Payment of fee does not give right to inspect or search
To avoid doubt, nothing in this Part,
and nothing done under this Part:
(a) imposes on ASIC a duty to allow
the inspection or search of a register or document, or to make available
information; or
(b) confers
a right to inspect or search a register or document or to have information made
available;
except so far as such a duty or right would, but for the
effect of section 1355, exist under a provision of another Part of this
Act or under some other law.
Part 9.12—Regulations
1363
Definitions
In this Part, unless the contrary
intention appears:
prescribed means prescribed by the
regulations.
the regulations means the regulations made
under section 1364.
1364
Power to make regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed by regulations; or
(b) necessary
or convenient to be prescribed by such regulations for carrying out or giving
effect to this Act.
(2) Without limiting subsection (1), the
regulations may make provision:
(c) for or in relation to the keeping
of registers by ASIC, the lodging of documents with ASIC, the registration of
documents by ASIC, the time and manner of lodging or registration, and the
requirements with which documents lodged or to be lodged are to comply; and
(d) prescribing forms for the purposes
of this Act and the method of verifying any information required by or in those
forms; and
(e) prescribing the manner in which,
the persons by whom, and the directions or requirements in accordance with
which, the forms prescribed for the purposes of this Act, or any of them, are
required or permitted to be signed, prepared, or completed, and generally
regulating the signing, preparation and completion of those forms, or any of
them; and
(f) for or in relation to the
convening of, conduct of, and procedure and voting at, meetings of creditors, meetings
of eligible employee creditors, meetings of contributories and meetings of
holders of debentures, and joint meetings of creditors and members of
companies, the number of persons required to constitute a quorum at any such
meeting, the sending of notices of meetings to persons entitled to attend at
meetings, the lodging of copies of notices of, and of resolutions passed at,
meetings, and generally regulating the conduct of, and procedure at, any such
meeting; and
(g) prescribing the persons by whom,
and the circumstances and manner in which, proxies may be appointed and
generally regulating the appointment and powers of proxies; and
(h) for or in relation to the proving
of debts in the winding up of a company, the manner of proving debts and the
time within which debts are required or permitted to be proved and generally
regulating the proving of debts; and
(j) prescribing the manner in which a
liquidator appointed by the Court may:
(i) exercise powers and
perform functions under subsection 478(1); and
(ii) exercise any powers
conferred, and perform any duties imposed, on the liquidator by regulations
made for the purposes of subsection 488(1); and
(k) prescribing the manner in which a
liquidator in a voluntary winding up may exercise powers and perform functions
under section 506; and
(m) prescribing times for the lodging
of any documents; and
(n) prescribing penalties for late
payment of a review fee imposed by the Corporations (Review Fees) Act 2003;
and
(o) prescribing that, in relation to
the payment of a fee imposed by the Corporations (Fees) Act 2001 or the Corporations
(Review Fees) Act 2003, in the event that the fee is paid by electronic
means, a refund of an amount or proportion of the fee is payable; and
(s) for or in relation to the giving
to ASIC of information in addition to, or in variation of, the information
contained in a prescribed form lodged with it; and
(t) for or in relation to the times
within which information required to be given to ASIC under this Act must be so
given; and
(u) for or in relation to the manner
in which:
(i) orders made under this
Act may be served on persons affected by the orders; and
(ii) documents that are
required or permitted by this Act to be served on a person may be so served;
and
(w) prescribing penalties not exceeding
50 penalty units for contraventions of the regulations.
1365
Scope of particular regulations
Except as otherwise expressly provided
in this Act, the regulations may be of general or specially limited application
or may differ according to differences in time, locality, place or
circumstance.
1366
Verifying or certifying documents
The regulations may:
(a) where documents required by or
under this Act to be lodged in accordance with this Act are required to be
verified or certified and no manner of verification or certification is
prescribed by or under this Act—require that the documents or any of them be
verified or certified by statement in writing made by such persons as are
prescribed by the regulations; and
(b) where no express provision is made
in this Act for verification or certification of documents—require that the
documents be verified or certified by statement in writing by such persons as
are prescribed.
1367 Documents
lodged by an agent
The regulations may provide, in such
cases as are prescribed, that, if a document that is required by or under this
Act to be lodged is signed or lodged on behalf of a person by an agent duly
authorised by writing, there must be:
(a) lodged with; or
(b) endorsed on; or
(c) annexed
to;
that document, the original, or a verified copy, of the
authority.
1368
Exemptions from Chapter 6D or 7
The regulations may provide that,
subject to any prescribed terms and conditions, Chapter 6D or 7, or
specified provisions of Chapter 6D or 7:
(a) do not have effect in relation to
a specified person or class of persons; or
(b) have effect in relation to a
specified person or class of persons to such extent only as is prescribed; or
(c) do not have effect in relation to
a specified transaction or class of transactions; or
(d) do
not have effect in relation to a specified transaction or class of transactions
entered into by a specified person or class of persons;
and may provide that a contravention of a prescribed term
or condition is an offence against the regulations.
1369
Penalty notices
(1) The regulations:
(a) may prescribe offences against
this Act (not being offences the penalties applicable to which include a
term of imprisonment or a pecuniary penalty that exceeds $1,000), or offences
against the regulations, for the purposes of section 1313; and
(b) must, in relation to each offence
that is prescribed under this subsection:
(i) prescribe the
particulars of that offence that are to be given in a notice served on a person
under that section in relation to the offence; and
(ii) prescribe the amount
of the penalty (being not more than half the amount of the penalty applicable
to the offence) that is payable in respect of the offence under a notice served
on a person under that section in relation to the offence.
(2) In subsection (1), a reference to a
penalty applicable to an offence is a reference to the penalty that is
applicable to that offence because of any of the provisions of section 1311.
(3) The particulars of an offence required to
be prescribed by subparagraph (1)(b)(i) may be prescribed by being set out
in the form prescribed for the purposes of section 1313 in relation to the
offence.
1369A
State termination of reference
(1) The regulations may make provision in
relation to circumstances that arise because a State ceases to be a referring
State.
Note: For example, the regulations may prevent
companies that have their registered office or financial records in the State
from committing offences and give them time to relocate their office or
records.
(2) Without limiting subsection (1),
regulations made under that subsection may modify the operation of this Act in
relation to the circumstances dealt with in the regulations.
Chapter 10—Transitional provisions
Part 10.1—Transition from the old corporations legislation
Division 1—Preliminary
1370
Object of Part
(1) Subject to subsection (3), the
object of this Part is to provide for a smooth transition from the regime
provided for in the old corporations legislation of the States and Territories
in this jurisdiction to the regime provided for in the new corporations
legislation, so that individuals, bodies corporate and other bodies are, to the
greatest extent possible, put in the same position immediately after the
commencement as they would have been if:
(a) that old corporations legislation
had, from time to time when it was in force, been valid Commonwealth
legislation applying throughout those States and Territories; and
(b) the new corporations legislation
(to the extent it contains provisions that correspond to provisions of the old
corporations legislation as in force immediately before the commencement) were
a continuation of that old corporations legislation as so applying.
Note: The new corporations legislation contains
provisions that correspond to most of the provisions of the old corporations
legislation. Generally, the only exceptions to this are provisions of the old
corporations legislation that related to the fact that the Corporations Law
operated separately in each of the States and Territories (rather than as a
single national law).
(2) In resolving any ambiguity as to the
meaning of any of the other provisions of this Part, an interpretation that is
consistent with the object of this Part is to be preferred to an interpretation
that is not consistent with that object.
(3) This Part does contain some provisions
(for example, subsection 1400(4)) which apply or extend to matters under the
old corporations legislation of any non‑referring State.
1371
Definitions
(1) In this Part:
carried over provision of the old
corporations legislation of a State or Territory in this jurisdiction means a
provision of the old corporations legislation of that State or Territory that:
(a) was in force immediately before
the commencement; and
(b) corresponds to a provision of the
new corporations legislation.
commencement means the commencement of this
Act.
corresponds has a meaning affected by subsections (2),
(3) and (4).
instrument means:
(a) any instrument of a legislative
character (including an Act or regulations) or of an administrative character;
or
(b) any other document.
liability includes a duty or obligation.
made includes issued, given or published.
new corporations legislation means:
(a) this Act; and
(b) the new Corporations Regulations
(as amended and in force from time to time) and any other regulations made
under this Act; and
(c) the laws of the Commonwealth
referred to in paragraph (c) of the definition of old corporations
legislation, being those laws as they apply after the commencement; and
(d) the preserved instruments.
new Corporations Regulations means the
regulations that, because of section 1380, have effect as if they were
made under section 1364.
old application Act for a State or Territory
means:
(a) in the case of New South Wales—the
Corporations (New South Wales) Act 1990 of New South Wales as in force
from time to time before the commencement; or
(b) in the case of Victoria—the Corporations
(Victoria) Act 1990 of Victoria as in force from time to time before the
commencement; or
(c) in the case of Queensland—the Corporations
(Queensland) Act 1990 of Queensland as in force from time to
time before the commencement; or
(d) in the case of Western
Australia—the Corporations (Western Australia) Act 1990 of Western
Australia as in force from time to time before the commencement; or
(e) in the case of South Australia—the
Corporations (South Australia) Act 1990 of South Australia as in force
from time to time before the commencement; or
(f) in the case of Tasmania—the Corporations
(Tasmania) Act 1990 of Tasmania as in force from time to time
before the commencement; or
(g) in the case of the Australian
Capital Territory—the old Corporations Act; or
(h) in the case of the Northern
Territory—the Corporations (Northern Territory) Act 1990
of the Northern Territory as in force from time to time before the
commencement.
old Corporations Act means the Corporations
Act 1989 as in force from time to time before the commencement.
old Corporations Law means:
(a) when used in relation to a
particular State or Territory—the Corporations Law of that State or Territory,
within the meaning of the old application Act for that State or Territory, as
in force from time to time before the commencement; or
(b) when used in general terms—the
Corporations Law set out in section 82 of the old Corporations Act as in
force from time to time before the commencement.
old corporations legislation of a particular State
or Territory means:
(a) the old Corporations Law and old
Corporations Regulations of that State or Territory, and any instruments made
under that Law or those Regulations; and
(b) the old application Act for that
State or Territory, and any instruments made under that Act; and
(c) either:
(i) when used in relation
to a State or the Northern Territory—the laws of the Commonwealth as applying
in relation to the old Corporations Law and the old Corporations Regulations of
the State or Territory from time to time before the commencement as laws of, or
for the government of, that State or Territory because of Part 8 of the
old Application Act for that State or Territory, and any instruments made under
those laws as so applying; or
(ii) when used in relation
to the Australian Capital Territory—the laws of the Commonwealth referred to in
subparagraph (i), but as applying of their own force in relation to the
old Corporations Law and old Corporations Regulations of the Territory, and any
instruments made under those laws as so applying.
old Corporations Regulations means:
(a) when used in relation to a
particular State or Territory—the Corporations Regulations of that State or
Territory, within the meaning of the old application Act for that State or
Territory, as in force from time to time before the commencement; or
(b) when used in general terms—the
regulations made under section 22 of the old Corporations Act as in force
from time to time before the commencement.
order, in relation to a court, includes any
judgment, conviction or sentence of the court.
pre‑commencement right or liability has
the meaning given by subsection 1400(1) or 1401(1).
preserved instrument means an instrument
that, because of section 1399, has effect after the commencement as if it
were made under a provision of the new corporations legislation.
right includes an interest or status.
substituted right or liability has the
meaning given by subsection 1400(2) or 1401(3).
this Part includes regulations made for the
purposes of any of the provisions of this Part.
(2) Subject to subsection (4), for the
purposes of this Part, a provision or part (the old provision or part)
of the old corporations legislation of a State or Territory corresponds to
a provision or part (the new provision or part) of the new
corporations legislation (and vice versa) if:
(a) the old provision or part and the
new provision or part are substantially the same, unless the regulations
specify that the 2 provisions or parts do not correspond; or
(b) the regulations specify that the 2
provisions or parts correspond.
Note: The range of provisions of the new
corporations legislation that may be corresponding provisions for the purposes
of this Part is affected by sections 1401 and 1408, which take certain
provisions of the old corporations legislation to be included in the new
corporations legislation.
(3) For the purposes of paragraph (2)(a),
differences of all or any of the following kinds are not sufficient to mean
that 2 provisions or parts are not substantially the same:
(a) differences in the numbering of
the provisions or parts;
(b) differences of a minor technical
nature (for example, differences in punctuation, or differences that are
attributable to the correction of incorrect cross references);
(c) the fact that one of the
provisions refers to a corresponding previous law and the other does not;
(d) that fact that:
(i) the old provision or
part allowed a court to exercise powers on its own motion but the new provision
or part does not; or
(ii) the old provision or
part required a court to apply a criterion of public interest but the new
provision or part requires a court to apply a criterion of justice and equity;
or
(iii) the new provision or
part requires ASIC to take account of public interest but the old provision or
part did not;
(e) other differences that are
attributable to the fact that the new corporations legislation applies as a
Commonwealth law throughout this jurisdiction;
(f) other differences of a kind
prescribed by the regulations for the purposes of this paragraph.
This subsection is not intended to otherwise limit the
circumstances in which 2 provisions or parts are, for the purposes of paragraph (2)(a),
substantially the same.
(4) The regulations may provide that a
specified provision of the old corporations legislation of a State or Territory
does, or does not, correspond to a specified provision of the new corporations
legislation.
1372
Relationship of Part with State validation Acts
(1) This Part applies to an invalid
administrative action of a Commonwealth authority or an officer of the
Commonwealth (within the meaning of a State validation Act) as if the
circumstances that made the authority’s or officer’s action an invalid
administrative action had not made the action invalid.
Note 1: So, for example, in determining whether the
purported registration of a company is an action to which this Part (in
particular Division 2) applies, the circumstances that made the action an
invalid administrative action for the purposes of a State validation Act are to
be disregarded.
Note 2: For the status and effect of invalid
administrative actions in relation to times before the commencement, see the
State validation Acts.
(2) However, if there are other circumstances
that affect or may affect the validity of the action, neither this section, nor
anything else in this Part, is taken to negate the effect of those other
circumstances.
(3) If:
(a) a person would have had a right or
liability under a provision (the old provision) of the old corporations
legislation of a State if the circumstances that made the authority’s or
officer’s action an invalid administrative action (within the meaning of the
State validation Act of that State) had not made the action invalid; and
(b) the effect of that State
validation Act in relation to that action is to declare that the person has,
and is taken always to have had, the same rights and liabilities as they
would have had under the old provision if the invalid administrative action had
been taken, or purportedly taken, at the relevant time by a duly authorised
State authority or officer of the State (within the meaning of that Act);
this Part applies as if:
(c) a reference to a right or
liability arising under the old corporations legislation included a reference
to the right or liability that the person is declared to have by the State
validation Act; and
(d) that right or liability arose
under the old provision.
(4) In this section:
State validation Act means an Act of a State
in this jurisdiction under which certain administrative actions (within the
meaning of that Act) taken, or purportedly taken, at or before the commencement
by Commonwealth authorities or officers of the Commonwealth (within the meaning
of that Act) pursuant to functions or powers (the relevant functions or
powers) conferred, or purportedly conferred, by or under laws that
include the old application Act for that State have, and are deemed always to
have had, the same force and effect for all purposes as they would have had if:
(a) they had been taken, or
purportedly taken by a State authority or officer of the State (within the
meaning of that Act); and
(b) the relevant functions or powers
had been duly conferred on those authorities or officers.
1373
References to things taken or deemed to be the case etc.
If:
(a) a law of a State or Territory in
this jurisdiction had effect before the commencement:
(i) to take or deem
something to have happened or to be the case, or to have a particular effect,
under or for the purposes of the old corporations legislation of that State or
Territory (or a provision of that legislation); or
(ii) to give something an
effect for the purposes of the old corporations legislation of that State or
Territory (or a provision of that legislation) that it would not otherwise have
had; and
(b) that effect was continuing
immediately before the commencement;
this Part applies as if that thing had actually happened
or were actually the case, or as if that thing actually had that other effect.
Note: So, for example, if a provision of the old
corporations legislation, or another law, of a State or Territory in this
jurisdiction took a company to be registered under Part 2A.2 of the old
Corporations Law of the State or Territory, this Part applies as if the company
were actually registered under that Part.
1374
Existence of several versions of old corporations legislation does not result
in this Part operating to take same thing to be done several times under new
corporations legislation etc.
If, apart from this section, a provision
of this Part (the transitional provision) would, because each
State or Territory in this jurisdiction had its own old corporations
legislation (containing parallel provisions) before the commencement, operate
so that:
(a) a particular thing done before the
commencement would be taken to be done, or have effect, 2 or more times by,
under or for the purposes of, a provision of this Act; or
(b) a right or liability would be
created 2 or more times in respect of a particular event, circumstance or thing
that happened before the commencement; or
(c) a particular result or effect
would be produced 2 or more times for the purposes of the new corporations
legislation in relation to the same matter;
the transitional provision is taken to operate so that:
(d) if paragraph (a) applies—the
thing is taken to be done or have effect only once by, under, or for the
purposes of, the provision of the new corporations legislation; or
(e) if paragraph (b) applies—the
right or liability is created only once in respect of the event, circumstance
or thing; or
(f) if paragraph (c) applies—the
result or effect is produced only once in relation to the matter.
Note: So, for example, if a body (because of the
operation of section 102A of the old Corporations Law) was registered
under section 601CB of the old Corporations Law of several States and
Territories and those registrations were still in force immediately before the
commencement, section 1399 does not apply separately to each of those
registrations.
1375
Penalty units in respect of pre‑commencement conduct remain at $100
(1) If, because of this Part, an offence can
be prosecuted after the commencement in respect of conduct that occurred solely
before the commencement, the amount of a penalty unit in respect of that
offence is $100.
(2) If, because of this Part, section 1314
of this Act applies to conduct that started before the commencement and that
continued after the commencement, then, for the purposes of the application of
that section to that conduct (including the post‑commencement conduct),
the amount of a penalty unit is $100.
(3) This section has effect despite section 4AA
of the Crimes Act 1914.
1376
Ceasing to be a referring State does not affect previous operation of this Part
If, after the commencement, a State
ceases to be a referring State, that does not undo or affect:
(a) the effects that this Part has
already had in relation to matters connected with that State; or
(b) the ongoing effect of this Act as
it operates because of the effects referred to in paragraph (a).
Division 2—Carrying over registration of companies
1377
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
1378
Existing registered companies continue to be registered
(1) If:
(a) before the commencement, a company
was registered under Part 2A.2 of the old Corporations Law of a State or
Territory in this jurisdiction; and
(b) that registration was still in
force immediately before the commencement;
the registration of the company has effect (and may be
dealt with) after the commencement as if it were a registration of the company
under Part 2A.2 of this Act as a company of whichever of the company types
listed in subsection (2) corresponds to its previous class and type.
Note: The carrying over of other matters (for
example, the registration of registered managed investment schemes and of
registered bodies) is covered by the more general transitional provisions in
Division 6.
(2) The company types are as follows:
(a) a proprietary company limited by
shares;
(b) an unlimited proprietary company;
(c) a proprietary company limited both
by shares and by guarantee;
(d) a public company limited by
shares;
(e) an unlimited public company;
(f) a company limited by guarantee;
(g) a public company limited both by
shares and by guarantee;
(h) a no liability company.
(3) The application of subsection (1) in
relation to the registration of a company does not have the effect of creating
that company as a new legal entity. Rather, it has the effect of continuing the
existence of the legal entity that is that company with the same
characteristics and attributes as it had immediately before the commencement.
The date of the company’s first registration remains the same (see subsection
1402(2)), and a new certificate of registration does not need to be issued.
Note: The company will, for example, retain the same
name, ACN, constitution and registered office as it had immediately before the
commencement. Its certificate of registration will (because of section 1399)
have effect as if it were issued under section 118 of this Act.
(4) The State or Territory in which the
company is taken to be registered is the State or Territory under whose old
Corporations Law the company was registered immediately before commencement.
This subsection has effect subject to subsection 119A(3).
Note: For the general provisions about jurisdiction
of incorporation and jurisdiction of registration, see section 119A.
Division 3—Carrying over the old Corporations Regulations
1379
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
1380
Old Corporations Regulations continue to have effect
The old Corporations Regulations that
were made for the purposes of provisions of the old Corporations Law that
correspond to provisions of this Act and that were in force immediately before
the commencement continue to have effect (and may be dealt with) after the
commencement as if:
(a) they were regulations in force
under section 1364 of this Act; and
(b) they were made for the purposes of
the corresponding provisions of this Act.
Division 4—Court proceedings and orders
1381
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
1382
Definitions
(1) In this Division:
appeal or review proceeding, in relation to
an order of a court, means a proceeding by way of appeal, or otherwise seeking
review, of the order.
enforcement proceeding, in relation to an
order made by a court, means:
(a) a proceeding to enforce the order;
or
(b) any other proceeding in respect of
a breach of the order.
federal corporations proceeding means a
proceeding of any of the following kinds that, immediately before the
commencement, was before a court:
(a) a proceeding in respect of a
matter arising under the Administrative Decisions (Judicial Review) Act 1977
involving or related to a decision made under a provision of the old
corporations legislation of a State or Territory in this jurisdiction;
(b) a proceeding for a writ of
mandamus or prohibition, or an injunction, against an officer or officers of
the Commonwealth (within the meaning of section 75 of the Constitution) in
relation to a matter to which a provision of the old corporations legislation
of a State or Territory in this jurisdiction applied;
(ba) a proceeding that relates to a
matter to which a provision of the Corporations Act 1989 applied (other
than a proceeding that relates to a matter to which a provision of the
Corporations Law of the Australian Capital Territory applied);
(bb) a proceeding in relation to a
matter to which a provision of the old corporations legislation of a State or
Territory in this jurisdiction applied:
(i) in which the
Commonwealth was seeking an injunction or a declaration; or
(ii) to which the
Commonwealth, or a person suing or being sued on behalf of the Commonwealth,
was a party;
(bc) any other proceeding in relation
to a matter to which a provision of the old corporations legislation of a State
in this jurisdiction applied that was in the exercise of federal jurisdiction;
(bd) any other proceeding in relation
to a matter to which a provision of the old corporations legislation of a
Territory in this jurisdiction applied that would be covered by paragraph (bc)
if the Territory had been a State;
(c) a proceeding in the court’s
accrued federal jurisdiction in relation to a matter to which a provision of
the old corporations legislation of a State or Territory in this jurisdiction
applied.
interlocutory application means an
application that:
(a) is made during the course of a
proceeding; and
(b) is for an order that is incidental
to the principal object of that proceeding, including, for example:
(i) an order about the
conduct of that proceeding; or
(ii) an order assisting a
party to that proceeding to present their case in that proceeding; or
(iii) an order protecting or
otherwise dealing with property that is the subject matter of that proceeding;
but not including an order
making a final determination of existing rights or liabilities.
interlocutory order means:
(a) an order made in relation to an
interlocutory application; or
(b) an order or direction about the
conduct of a proceeding.
interlocutory proceeding means a proceeding:
(a) dealing only with; or
(b) to the extent it deals with;
an interlocutory application.
primary proceeding means a proceeding other
than an interlocutory proceeding.
proceeding means a proceeding, whether
criminal or civil, before a court.
(2) For the purposes of this Part, if an
interlocutory proceeding relates to a proceeding that is itself an
interlocutory proceeding, the first‑mentioned proceeding is taken to
relate also to the primary proceeding to which the second‑mentioned
proceeding relates.
1383
Treatment of court proceedings under or related to the old corporations
legislation—proceedings other than federal corporations proceedings
(1) This section applies to a proceeding,
other than a federal corporations proceeding, in relation to which the
following paragraphs are satisfied:
(a) the proceeding was started in a
court before the commencement; and
(b) the proceeding was:
(i) under a provision of
the old corporations legislation of a State or Territory in this jurisdiction;
or
(ii) brought as, or
connected with, a prosecution for an offence against a provision of the old
corporations legislation of a State or Territory in this jurisdiction; and
(c) the proceeding was not an
enforcement proceeding, or an appeal or review proceeding, in relation to an
order of a court; and
(d) the proceeding had not been
concluded or terminated before the commencement; and
(e) either:
(i) if the proceeding is a
primary proceeding—no final determination of any of the existing rights or
liabilities at issue in the proceeding had been made before the commencement;
or
(ii) if the proceeding is
an interlocutory proceeding—this section applies to the primary proceeding to
which the interlocutory proceeding relates.
(2) In this
section:
(a) the proceeding to which this
section applies is called the old proceeding; and
(b) the provision of the old
corporations legislation referred to in whichever of subparagraphs (1)(b)(i)
and (ii) applies is called the relevant old provision.
(3) A proceeding (the new proceeding)
equivalent to the old proceeding is, on the commencement, taken to have been
brought in the same court, exercising federal jurisdiction:
(a) if subparagraph (1)(b)(i)
applies—under the provision of the new corporations legislation that
corresponds to the relevant old provision; or
(b) if subparagraph (1)(b)(ii)
applies—as, or connected with, a prosecution for an offence against the
provision of the new corporations legislation that corresponds to the relevant
old provision.
To the extent that the old proceeding, before the
commencement, related to pre‑commencement rights or liabilities, the new
proceeding relates to the substituted rights and liabilities in relation to
those pre‑commencement rights or liabilities
Note 1: See sections 1400 and 1401 for the
creation of substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the
new corporations legislation that corresponds to the relevant old provision,
either because:
(a) the new corporations legislation actually
contains a provision that corresponds to the relevant old provision; or
(b) the new corporations legislation, because of
section 1401 or 1408, is taken to include the relevant old provision
(whether with or without modifications), in which case the provision so taken
to be included will be the corresponding provision.
(4) The following provisions apply in
relation to the new proceeding:
(a) the parties to the new proceeding
are the same as the parties to the old proceeding;
(b) subject to subsections (5)
and (6), and to any order to the contrary made by the court, the court must
deal with the new proceeding as if the steps that had been taken for the
purposes of the old proceeding before the commencement had been taken for the
purposes of the new proceeding.
(5) If:
(a) an interlocutory order was made
before the commencement for the purpose of, or in relation to, the old
proceeding; and
(b) that interlocutory order was in
force immediately before the commencement;
the rights and liabilities of all persons (including
rights and liabilities arising wholly or partly because of conduct occurring
before the commencement) are declared to be, for all purposes, the same as if
the interlocutory order had instead been made by the same court, in the
exercise of federal jurisdiction, for the purpose of, or in relation to, the
new proceeding.
(6) The court may make orders doing all or
any of the following:
(a) cancelling or varying rights or
liabilities that a person has because of subsection (5);
(b) substituting other rights or
liabilities for rights or liabilities a person has because of subsection (5);
(c) adding rights or liabilities to
the rights or liabilities a person has because of subsection (5);
(d) enforcing, or otherwise dealing
with conduct contrary to, a right or liability a person has because of subsection (5)
in the same way as it could enforce, or deal with, the right, liability or
conduct if the right or liability had arisen under or because of an order made
by the court in the exercise of federal jurisdiction under the new corporations
legislation.
1384
Treatment of court proceedings under or related to the old corporations
legislation—federal corporations proceedings
(1) This section applies to a proceeding in
relation to which the following paragraphs are satisfied:
(a) the proceeding was started in a
court before the commencement; and
(b) the proceeding was a federal
corporations proceeding that related to a matter to which a provision of the
old corporations legislation of a State or Territory in this jurisdiction
applied; and
(c) the proceeding had not been
concluded or terminated before the commencement.
(2) In this section:
(a) the proceeding to which this
section applies is called the continued proceeding; and
(b) the provision of the old
corporations legislation referred to in paragraph (1)(b) is called the relevant
old provision.
(3) Subject to subsection (4):
(a) the continued proceeding continues
after the commencement in the same court as if it were, and always had been, a
proceeding in relation to a matter to which the provision of the new
corporations legislation that corresponds to the relevant old provision
applies; and
(b) to the extent that the proceeding,
before the commencement, related to pre‑commencement rights or
liabilities, the proceeding, as continued, relates, and as so continuing is
taken always to have related, to the substituted rights and liabilities in
relation to those pre‑commencement rights or liabilities
Note 1: See sections 1400 and 1401 for the
creation of substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the
new corporations legislation that corresponds to the relevant old provision,
either because:
(a) the new corporations legislation actually
contains a provision that corresponds to the relevant old provision; or
(b) the new corporations legislation, because of
section 1401 or 1408, is taken to include the relevant old provision
(whether with or without modifications), in which case the provision so taken
to be included will be the corresponding provision.
(4) Subject to any order to the contrary made
by the court, the court must deal with the continued proceeding as if:
(a) the steps that had been taken for
the purposes of the proceeding before the commencement had been taken for the
purpose of the proceeding as continued by this section; and
(b) any orders made in relation to the
proceeding before the commencement had been made in relation to the proceeding
as continued by this section.
1384A
Appeals etc. in relation to some former federal corporations proceedings
(1) This section applies to a proceeding in
relation to which all of the following paragraphs are satisfied:
(a) the proceeding was started in a
court before the commencement;
(b) the proceeding was a federal
corporations proceeding that related to a matter to which a provision of the
old corporations legislation of a State or Territory in this jurisdiction
applied; and
(c) the proceeding had been concluded
or terminated before the commencement.
(2) A decision or order made in the
proceeding may be appealed against, or otherwise reviewed, as if it had been
made in a proceeding that related to a matter to which a provision of this Act
applied.
(3) An order made in the proceeding may be
enforced as if it had been made in a proceeding that related to a matter to
which a provision of this Act applied.
1384B
Effect of decisions and orders made in federal corporations proceedings before
commencement
(1) For the avoidance of doubt, if:
(a) a proceeding was started in a
court before the commencement; and
(b) the proceeding was a federal
corporations proceeding that related to a matter to which a provision of the
old corporations legislation of a State or Territory in this jurisdiction
applied; and
(c) a decision was made or an order
given in the proceeding before the commencement;
the decision or order continues to have effect after the
commencement despite the provision of the old corporations legislation ceasing
to have effect.
(2) This section does not limit the operation
of section 1384 in relation to the decision or order.
1385
References to proceedings and orders in the new corporations legislation
(1) Subject to subsection (5), a
reference in the new corporations legislation to the taking of a proceeding, or
a step in a proceeding, in a court under or in relation to a part or
provision of the new corporations legislation includes a reference to the taking
of a proceeding, or the equivalent step in a proceeding:
(a) before the commencement under or
in relation to the corresponding part or provision of the old corporations
legislation of a State or Territory; or
(b) after the commencement under or in
relation to the corresponding part or provision of the old corporations
legislation of a State or Territory in this jurisdiction, as that legislation
continues to have effect after the commencement.
(2) Subject to subsections (3), (4) and
(5), a reference in the new corporations legislation to an order made by a
court under or in relation to a part or provision of the new
corporations legislation includes a reference to an order made:
(a) before the commencement under or
in relation to the corresponding part or provision of the old corporations
legislation of a State or Territory; or
(b) after the commencement under or in
relation to the corresponding part or provision of the old corporations
legislation of a State or Territory in this jurisdiction, as that legislation
continues to have effect after the commencement.
(3) Nothing in subsection (2) is taken
to produce a result that would:
(a) make a person liable, under the
new corporations legislation, to any penalty (whether civil or criminal)
provided for in an order referred to in paragraph (2)(a) or (b); or
(b) enable an enforcement proceeding,
or an appeal or review proceeding, in relation to such an order to be taken in
a court under the new corporations legislation; or
(c) enable proceedings by way of
appeal, or other review, of such an order to be taken in a court under the new
corporations legislation.
(4) If, after the commencement, an order
referred to in paragraph (2)(a) or (b) is varied or set aside on appeal or
review, subsection (2) applies, or is taken to have applied, from the time
from which the variation or setting aside takes or took effect, as if:
(a) if the order is varied—the order
had been made as so varied; or
(b) if the order is set aside—the
order had not been made.
(5) The regulations may provide that subsection (1)
or (2) does not apply in relation to a particular reference or class of
references in the new corporations legislation.
Division 5—Other specific transitional provisions
1386
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
1387
Certain applications lapse on the commencement
(1) An application:
(a) under section 117 for the
registration of a company; or
(b) under section 601BC for the
registration of a body as a company;
that was made by a person before the commencement, but
that had not been dealt with by the commencement, lapses on the commencement.
(2) Any fee that was paid in respect of the
application must be returned to the person, unless it is, with the person’s
permission, credited against the fee payable in respect of another application
the person makes under this Act after the commencement.
1388
Carrying over the Partnerships and Associations Application Order
The application order in force
immediately before the commencement for paragraph 115(b) of the old
Corporations Law of each State and Territory in this jurisdiction continues to
have effect (and may be dealt with) after the commencement as if it were a
regulation in force under section 1364 of this Act made for the purposes
of subsection 115(2) of this Act.
1389
Evidentiary certificates
(1) A certificate by ASIC (whether issued
before or after the commencement) stating that a company was registered under
the old Corporations Law of a State or Territory in this jurisdiction is
conclusive evidence that:
(a) all requirements of that Law for
the company’s registration were complied with; and
(b) the company was duly registered as
a company under that Law on the date (if any) specified in the certificate.
(2) A certificate issued before the
commencement under pre‑Corporations Law legislation (see subsection (3))
by the authority responsible for administering that legislation stating that a
body was registered as a company under that legislation or other pre‑Corporations
Law legislation is conclusive evidence that:
(a) all requirements of that
legislation for the company’s registration were complied with; and
(b) the company was duly registered as
a company under that legislation on the date (if any) specified in the
certificate.
(3) In subsection (2):
pre‑Corporations Law legislation means
legislation that was, for the purposes of the old Corporations Law of a State
or Territory in this jurisdiction, a corresponding previous law in relation to
that old Corporations Law.
1390
Preservation of nomination of body corporate as SEGC
The nomination in force immediately
before the commencement under section 67 of the old Corporations Act
continues to have effect (and may be dealt with) after the commencement as if
it were a nomination under section 925A of this Act.
1391
Preservation of identification of satisfactory records
A notice in force immediately before the
commencement under section 70 of the old Corporations Act continues to
have effect (and may be dealt with) after the commencement as if it were a
notice under subsection 147(5) of this Act.
1392
Retention of information obtained under old corporations legislation of non‑referring
State
If a particular State is not a referring
State on the commencement, that does not mean that ASIC must then remove from,
or cease to retain in, a database or register it maintains information that
ASIC obtained before the commencement under or because of (whether in whole or
in part) the operation of the old corporations legislation of that State.
1393
Transitional provisions relating to section 1351 fees
(1) If:
(a) either:
(i) before the
commencement, a person paid an amount as required by section 1351 of the
old Corporations Law of a State or Territory in respect of a particular matter;
or
(ii) after the
commencement, a person pays an amount as required by subsection 9(2) of the Corporations
(Fees) Act 2001 in respect of a particular matter; and
(b) a fee is also payable under
section 1351 of this Act in respect of the same matter;
the payment they made or make as mentioned in subparagraph (a)(i)
or (ii) is taken to satisfy their liability to pay the fee referred to in paragraph (b).
(2) If:
(a) before the commencement, a person
paid a deposit as required by section 1357 of the old Corporations Law of
a State or Territory in respect of a particular matter; and
(b) a fee is payable under section 1351
of this Act in respect of the same matter;
the deposit must be applied against the liability to pay
the fee.
1394
Transitional provisions relating to securities exchange fidelity fund levies
(1) If:
(a) before the commencement, a person
paid an amount as required by subsection 902(1) of the old Corporations Law of
a State or Territory in order to be admitted to:
(i) membership of a
securities exchange; or
(ii) membership of a
partnership in a member firm recognised by a securities exchange; and
(b) that person had not been so
admitted by the commencement of this Act;
the payment they made before the commencement is taken to
satisfy their liability to pay the levy referred to in subsection 902(1) of
this Act in respect of their admission after the commencement to that
securities exchange or firm.
(2) If:
(a) either:
(i) before the
commencement, a person paid an amount as required by subsection 902(2) of the
old Corporations Law of a State or Territory to a securities exchange in
respect of a year some or all of which occurs after the commencement of this Act;
or
(ii) after the
commencement, a person pays an amount as required by subsection 8(3) of the Corporations
(Securities Exchanges Levies) Act 2001 in respect of a year some or all of
which occurs after the commencement of this Act; and
(b) a levy is also payable under
subsection 902(2) of this Act in respect of the securities exchange and the
year;
the payment they made or make as mentioned in subparagraph (a)(i)
or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).
(3) If, before the commencement, a person
paid an amount to a securities exchange as required by subsection 902(2) of the
old Corporations Law of a State or Territory, that payment is to be counted,
for the purposes of:
(a) the reference in paragraph (a)
of the definition of relevant person in subsection 903(1) of this
Act; and
(b) subsection 903(5) of this Act;
as if it were a payment of a kind referred to in that
paragraph or that subsection, as the case requires.
1395
Transitional provisions relating to National Guarantee Fund levies
(1) If:
(a) either:
(i) before
the commencement, a person paid an amount as required by section 938 of
the old Corporations Law of a State or Territory in respect of a particular
transaction; or
(ii) after the commencement,
a person pays an amount of levy imposed by subsection 6(1) of the Corporations
(National Guarantee Fund Levies) Act 2001 in respect of a particular
transaction; and
(b) a levy is also payable under
section 938 of this Act in respect of the same transaction;
the payment they made or make as mentioned in subparagraph (a)(i)
or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).
(2) Subject to subsection (3), a
determination of a matter (other than a rate or rates, or an amount) in force
immediately before the commencement for the purposes of section 938, 940
or 941 of the old Corporations Law of a State or Territory in this jurisdiction
continues to have effect (and may be dealt with) after the commencement of this
Act as if it were:
(a) in the case of a determination for
the purposes of section 938—a determination for the purposes of section 938
of this Act; or
(b) in the case of a determination for
the purposes of section 940—a determination for the purposes of section 940
of this Act; or
(c) in the case of a determination for
the purposes of section 941—a determination for the purposes of section 941
of this Act.
(3) Nothing in subsection (2) is taken
to produce a result that a levy is payable by a person in respect of the same
matter in respect of which levy is imposed on the person by subsection 6(1),
(2) or (3) of the Corporations (National Guarantee Fund Levies) Act 2001.
1396
Transitional provisions relating to futures organisation fidelity fund levies
(1) If:
(a) before the commencement, a person
paid an amount as required by subsection 1234(1) of the old Corporations Law of
a State or Territory in order to be admitted to membership of a futures
organisation; and
(b) that person had not been so
admitted by the commencement of this Act;
the payment they made before the commencement is taken to
satisfy their liability to pay the levy referred to in subsection 1234(1) of
this Act in respect of their admission after the commencement to that futures
organisation.
(2) If:
(a) either:
(i) before the
commencement, a contributing member of a futures organisation paid an amount as
required by subsection 1234(2) of the old Corporations Law of a State or
Territory to a futures organisation in respect of a year some or all of
which occurs after the commencement of this Act; or
(ii) after the
commencement, a person pays an amount as required by subsection 6(1) of the Corporations
(Futures Organisations Levies) Act 2001 in respect of a year some or all of
which occurs after the commencement of this Act; and
(b) a levy is also payable under
subsection 1234(2) of this Act in respect of the futures organisation and the
year;
the payment they made or make as mentioned in subparagraph (a)(i)
or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).
Division 6—General transitional provisions relating to other things done
etc. under the old corporations legislation
1397
Limitations on scope of this Division
(1) This Division has effect subject to:
(a) the provisions of Divisions 2,
3, 4 and 5 (which deal with matters in more specific terms); and
(b) regulations made for the purposes
of Division 7.
(2) Nothing in this Division applies to:
(a) an order made by a court before
the commencement; or
(b) a right or liability under an
order made by a court before the commencement; or
(c) a right to:
(i) appeal to a court
against an order made by a court before the commencement;
(ii) apply to a court for
review of such an order; or
(iii) bring an appeal or
review proceeding, or an enforcement proceeding, within the meaning of section 1382,
in respect of such an order; or
(d) subject to subsection (3)—a
proceeding taken (including an appeal, review or enforcement proceeding) in a
court before the commencement, or a step in such a proceeding.
Note: Division 4 deals with court orders and
proceedings made or begun before the commencement, and with related matters.
(3) Despite paragraph (2)(d), sections 1400
and 1401 apply to any right or liability to which a proceeding to which section 1383
or 1384 applies relates.
(4) Nothing in this Division applies to a
liability under section 902, 904, 938, 940, 941, 1234, 1235 or 1351 of the
old Corporations Law of a State or Territory in this jurisdiction to pay a
contribution, levy or fee.
Note: These
liabilities are preserved as taxes by provisions of the following Acts:
(a) the Corporations
(Securities Exchanges Levies) Act 2001;
(b) the Corporations (National Guarantee Fund
Levies) Act 2001;
(c) the Corporations (Futures Organisations
Levies) Act 2001;
(d) the Corporations (Fees) Act 2001.
(5) Except as mentioned in subsections (1)
to (4), nothing in Division 2, 3, 4 or 5, or in regulations made
for the purposes of Division 7, is intended to limit the generality
of the provisions in this Division.
1398
Provisions of this Division may have an overlapping effect
The provisions of this Division deal at
a broad level with concepts and matters in a way that is intended to achieve
the object of this Part as set out in section 1370. Some of the provisions
of this Division will (depending on the situation) have an effect that overlaps
or interacts to some extent with the effect of other provisions of this
Division. This is intended, and the provisions of this Division should be not
be regarded as dealing with mutually exclusive situations.
1399
Things done by etc. carried over provisions continue to have effect
(1) Subject to this section, a thing that:
(a) was done before the commencement
by, under, or for the purposes of, a carried over provision of the old
corporations legislation of a State or Territory in this jurisdiction; and
(b) had an ongoing significance (see subsections (4)
and (5)) immediately before the commencement for the purposes of that legislation;
has effect (and may be dealt with) after the commencement,
for the purposes of the new corporations legislation, as if it were done by,
under, or for the purposes of, the corresponding provision of the new
corporations legislation.
Note: This section covers all kinds of things done,
including things of a coercive nature or done for coercive purposes.
(2) Examples
of things done include:
(a) the making of an instrument or
order (but not including the making of an order by a court); and
(b) the making of an application or
claim (but not including the making of an application or claim to a court); and
(c) the granting of an application or
claim (but not including the granting of an application or claim by a court);
and
(d) the making of an appointment or
delegation; and
(e) the commencement of a procedure or
the taking of a step in a procedure (but not including the commencement of a
proceeding in a court); and
(f) the establishment of a register
or fund; and
(g) requiring a person to do, or not to
do, something (but not including a requirement contained in an order made by a
court); and
(h) the giving of a notice or
document.
(3) The examples in subsection (2) are
not intended to limit the generality of the language of subsection (1).
(4) Subject to subsection (5), for the
purposes of this section, a thing done by, under, or for the purposes of, a
carried over provision of the old corporations legislation of a State or
Territory had an ongoing significance immediately before the
commencement for the purposes of that legislation if:
(a) if the thing done was the making
of an instrument or order—the instrument or order was still in force
immediately before the commencement; or
(b) if the thing done was the making
of an application or claim—the application or claim had not been decided, and
had not otherwise ceased to have effect, before the commencement; or
(c) if the thing done was the granting
of an application or claim—the thing granted had not been revoked, and had not
otherwise ceased to have effect, before the commencement; or
(d) if the thing done was the making
of an appointment or delegation—the appointment or delegation had not been
revoked, and had not otherwise ceased to have effect, before the commencement;
or
(e) if the thing done was the
commencement of a procedure or the taking of a step in a procedure—the
procedure was still in progress immediately before the commencement or was
otherwise still having an effect; or
(f) if the thing done was the
establishment of a register or fund—the register or fund was still in existence
immediately before the commencement; or
(g) if the thing done was requiring a
person to do, or not to do something—the requirement was still in force
immediately before the commencement; or
(h) if the thing done was the giving
of a notice or document, or the doing of some other thing—the notice or
document (or the giving of the notice or document), or the thing (or the doing
of the thing), had an ongoing effect or significance immediately before the
commencement for the purposes of the old corporations legislation of the State
or Territory.
(5) The regulations may provide that a
specified thing done under, or for the purposes of, a carried over provision of
the old corporations legislation of a State or Territory did, or did not, have
an ongoing significance immediately before the commencement for the purposes of
that legislation.
1400
Creation of equivalent rights and liabilities to those that existed before the
commencement under carried over provisions of the old corporations legislation
(1) Subject to subsection (4), this
section applies in relation to a right or liability (the pre‑commencement
right or liability), whether civil or criminal, that:
(a) was acquired, accrued or incurred
under a carried over provision of the old corporations legislation of a State
or Territory in this jurisdiction; and
(b) was in existence immediately
before the commencement.
However, this section does not apply to a right or
liability under an order made by a court before the commencement.
(2) On the commencement, the person acquires,
accrues or incurs a right or liability (the substituted right or
liability), equivalent to the pre‑commencement right or
liability, under the corresponding provision of the new corporations legislation
(as if that provision applied to the conduct or circumstances that gave rise to
the pre‑commencement right or liability).
Note: If a time limit applied in relation to the pre‑commencement
right or liability under the old corporations legislation, that same time limit
(calculated from the same starting point) will apply under the new corporations
legislation to the substituted right or liability—see subsection 1402(3).
(3) A procedure, proceeding or remedy in
respect of the substituted right or liability may be instituted after the
commencement under the new corporations legislation (as if that provision
applied to the conduct or circumstances that gave rise to the pre‑commencement
right or liability).
Note: For pre‑commencement proceedings in respect
of substituted rights and liabilities, see sections 1383 and 1384.
(4) If, immediately before the commencement,
a person had an accrued right to make a claim under a provision of Part 7.10
of the old Corporations Law of a State that is not a referring State (and so is
not in this jurisdiction), this section applies in relation to that right in
the same way as it would have applied if the State had been a referring State.
Note: Except to the extent provided in this
subsection, this Part does not create rights and liabilities that are
equivalent to those that existed under the old corporations legislation of a non‑referring
State.
1401
Creation of equivalent rights and liabilities to those that existed before the
commencement under repealed provisions of the old corporations legislation
(1) This section applies in relation to a
right or liability (the pre‑commencement right or liability),
whether civil or criminal, that:
(a) was acquired, accrued or incurred
under a provision of the old corporations legislation of a State or Territory
in this jurisdiction that was no longer in force immediately before the
commencement; and
(b) was in existence immediately
before the commencement.
However, this section does not apply to a right or
liability under an order made by a court before the commencement.
(2) For the
purposes of subsections (3) and (4), the new corporations legislation is
taken to include:
(a) the provision of the old
corporations legislation (with such modifications (if any) as are necessary) under
which the pre‑commencement right or liability was acquired, accrued or
incurred; and
(b) the other provisions of the old
corporations legislation (with such modifications (if any) as are necessary)
that applied in relation to the pre‑commencement right or liability.
(3) On the commencement, the person acquires,
accrues or incurs a right or liability (the substituted right or
liability), equivalent to the pre‑commencement right or
liability, under the provision taken to be included in the new corporations
legislation by paragraph (2)(a) (as if that provision applied to the
conduct or circumstances that gave rise to the pre‑commencement right or
liability).
Note: If a time limit applied in relation to the pre‑commencement
right or liability under the old corporations legislation, that same time limit
(calculated from the same starting point) will apply under the new corporations
legislation to the substituted right or liability—see subsection 1402(3).
(4) A procedure, proceeding or remedy in
respect of the substituted right or liability may be instituted after the
commencement under the provisions taken to be included in the new
corporations legislation by subsection (2) (as if those provisions applied
to the conduct or circumstances that gave rise to the pre‑commencement
right or liability).
Note: For pre‑commencement proceedings in
respect of substituted rights and liabilities, see sections 1383 and 1384.
1402
Old corporations legislation time limits etc.
(1) An old corporations legislation time
limit (see subsection (4)):
(a) the starting point of which:
(i) was known or had been
determined before the commencement (whether that starting point occurred or
would occur before, on or after the commencement); or
(ii) would have become
known, or have been determined, after the commencement if the old corporations
legislation of the relevant State or Territory had continued to apply (whether
that starting point would have occurred before, on or after the commencement);
and
(b) that had not ended at or before
the commencement;
continues to run, or starts or started to run, as if that
same time limit (starting from the same starting point) were applicable under
the new corporations legislation.
(2) If:
(a) under the old corporations
legislation, a process (for example, the winding up of a company), a status of
a person or body (for example, a body’s registration as a company or a person’s
status as a registered liquidator), or an instrument, commenced from a
particular time before the commencement; and
(b) that process, status or instrument
is continued after the commencement for the purposes of the new corporations
legislation by a provision of this Part;
that process, status or instrument as so continued is
still taken to have commenced from the time referred to in paragraph (a).
(3) If an old corporations legislation time
limit related to a pre‑commencement right or liability, the same time
limit applies in relation to the substituted right or liability.
(4) In this section:
old corporations legislation time limit
includes:
(a) a period for the doing of a thing
specified or determined under a provision of the old corporations legislation
of a State or Territory; or
(b) a period specified or determined
under a provision of the old corporations legislation of a State or Territory
as the duration of a particular instrument or status.
1403
Preservation of significance etc. of events or circumstances
(1) An event, circumstance or other thing:
(a) that occurred or arose before the
commencement under or as mentioned in a provision of the old corporations
legislation of a State or Territory in this jurisdiction; and
(b) that had a particular
significance, status or effect for the purposes of a carried over provision of
that legislation (including because of an interpretive provision);
has that same significance, status and effect after the
commencement for the purposes of the provision of the new corporations
legislation that corresponds to that carried over provision.
Note: So, for example:
(a) if a company took action before the
commencement that had the result for the purposes of section 200B of the
old Corporations Law of making a superannuation fund a prescribed
superannuation fund in relation to the company, that action has that same
effect for the purposes of section 200B of this Act; and
(b) a delay that could have been taken into account
for the purposes of subsection 874(1) of the old Corporations Law also counts
for the purposes of subsection 874(1) of this Act.
(2) Without limiting subsection (1), an
event, circumstance or other thing had a particular significance for the
purposes of a carried over provision of the old corporations legislation of a
State or Territory in this jurisdiction if:
(a) the carried over provision created
an obligation in respect of the event, circumstance or thing (whenever it
arose); or
(b) the carried over provision
provided for the event, circumstance or thing to be dealt with in a particular
way; or
(c) the carried over provision stated
that the event, circumstance or thing (whenever it arose) was to be disregarded
for the purposes of that provision or was not covered by that provision.
1404
References in the new corporations legislation generally include references to
events, circumstances or things that happened or arose before the commencement
(1) Subject to this section, a reference in
the new corporations legislation to an event, circumstance or thing of a
particular kind that happens or arises, or that has happened or arisen, is
taken to include a reference to an event, circumstance or thing of that kind
that happened or arose at a time before the commencement, unless a contrary
intention is expressed. The fact that the provision uses only the present tense
in referring to an event, circumstance or thing is not, of itself, to be
regarded as an expression of a contrary intention.
Note: So, for example, if a provision of the new
corporations legislation refers to a person who consents to a course of action,
that reference (in the absence of an express provision to the contrary) will
not be limited to consents given after the commencement and will cover a
consent given before the commencement.
(2) Nothing in subsection (1) is taken
to produce a result that a right or liability exists under a provision of the
new corporations legislation that relates solely to events, circumstances or
things that occurred before the commencement.
Note: Instead, an equivalent right or liability will
be created by section 1400 or 1401.
(3) The regulations may provide that subsection (1)
does not apply in relation to a particular reference or class of references in
the new corporations legislation.
1405
References in the new corporations legislation to that legislation or the new
ASIC legislation generally include references to corresponding provisions of
the old corporations legislation or old ASIC legislation
(1) Subject to subsection (4), a
reference in the new corporations legislation to:
(a) an Act, or regulations or another
instrument that is part of the new corporations legislation; or
(b) a provision or group of provisions
of such an Act, regulations or other instrument;
is taken, in relation to events, circumstances or things
that happened or arose at a time before the commencement when the old
corporations legislation was in force, to include (in the absence of an express
provision to the contrary) a reference to the corresponding part, provision or
provisions of the old corporations legislation of the States and Territories in
this jurisdiction.
(2) Subject to subsection (4), a
reference in the new corporations legislation to:
(a) an Act, or regulations or some
other instrument that is part of the new ASIC legislation; or
(b) a provision or group of provisions
of such an Act, regulations or other instrument;
is taken, in relation to events, circumstances or things
that happened or arose at a time before the commencement when the old
corporations legislation was in force, to include (in the absence of an express
provision to the contrary) a reference to the corresponding part, provision or
provisions of the old ASIC legislation of the Commonwealth, of the States in
this jurisdiction and of the Northern Territory.
(3) In subsection (2):
(a) new ASIC legislation
and old ASIC legislation have the same meanings as they have in
Part 16 of the Australian Securities and Investments Commission
Act 2001; and
(b) the question whether a provision
or part of the old ASIC legislation corresponds to a provision of part of the
new ASIC legislation is to be determined in the same way as it is determined
for the purposes of Part 16 of the Australian Securities and
Investments Commission Act 2001.
(4) The regulations may provide that subsection (1)
or (2) does not apply in relation to a particular reference or class of
references in the new corporations legislation.
1406
Carrying over references to corresponding previous laws
(1) If a carried over provision of the old
corporations legislation of a State or Territory in this jurisdiction contained
a reference (whether in its own terms or by operation of another provision) to:
(a) a corresponding previous law (as
defined for the purposes of that provision or provisions including that
provision); or
(b) a thing done by, under, or for the
purposes of, such a law;
the corresponding provision of the new corporations
legislation is taken to contain an equivalent reference to that previous law,
or to such a thing done by, under, or for the purposes of, that previous law.
(2) The following references in the old
corporations legislation of the States and Territories in this jurisdiction are
covered by subsection (1) in the same way as they would be if they used
the “corresponding previous law” form of words:
(a) the reference in subsection
1274AA(1) to a “previous Law”;
(b) the reference in subparagraph
1274AA(2)(b)(ii) to a “previous law of this jurisdiction before the
commencement of this Part that corresponds”;
(c) any other references prescribed by
the regulations for the purposes of this subsection.
1407
References to old corporations legislation in instruments
(1) Subject to subsection (2), a
reference in, or taken immediately before the commencement to be in, an
instrument, other than:
(a) an Act of a State, the Australian
Capital Territory, the Northern Territory or Norfolk Island; or
(b) an instrument made under such an
Act;
to:
(c) an Act, or to regulations or some
other instrument, that is part of the old corporations legislation (whether the
reference is in general terms or in relation to a particular State or Territory
in this jurisdiction); or
(d) to a provision or group of
provisions of such an Act, regulations or other instrument;
is taken, after the commencement, to include a reference
to the corresponding part, provision or provisions of the new corporations
legislation (unless there is no such corresponding part, provision or
provisions).
Note: This section will, for example, apply to:
(a) a reference in another Commonwealth Act to the
Corporations Law; or
(b) a reference in the Corporations Regulations to
the Corporations Law; or
(c) a reference in a company’s constitution to a
particular provision of the Corporations Law.
(2) The regulations may do either or both of
the following:
(a) provide that subsection (1)
does not apply in relation to prescribed references in prescribed instruments;
(b) provide that subsection (1)
has effect in relation to prescribed references in prescribed instruments as
if, in that subsection, the words “to be” were substituted for the words “to
include”.
1408
Old transitional provisions continue to have their effect
(1) Subject to subsection (3), this Act
has the same effect, after the commencement, as it would have if:
(a) the transitional provisions (see subsections (6)
and (7)) of the old Corporations Laws of the States and Territories in this jurisdiction
(as in force from time to time before the commencement) had been part of this
Act; and
(b) those transitional provisions
produced the same results or effects (to the greatest extent possible)
for the purposes of this Act as they produced for the purposes of those old
Corporations Laws.
(2) Without limiting subsection (1) (but
subject to subsection (3)), if a transitional provision of the old
Corporations Law of a State or Territory in this jurisdiction could, if it had
continued in force after the commencement, have operated to give rise to rights
and liabilities (including civil or criminal liabilities) in relation to acts
or omissions occurring after the commencement, this Act is taken to include
that transitional provision (with such modifications (if any) as are necessary.
Note: In relation to acts or omissions that occurred
before the commencement, equivalent rights and liabilities are created by
sections 1400 and 1401.
(3) The regulations may determine how a
matter dealt with in a transitional provision of the old Corporations Law of a
State or Territory in this jurisdiction is to be dealt with under or in
relation to the new corporations legislation (including by creating offences).
The regulations have effect despite subsections (1) and (2), but subject
to subsection (5).
Note: In creating offences, the regulations are
subject to the limitation imposed by section 1375.
(4) For the purpose of determining whether
the new corporations legislation includes a provision that corresponds to a provision
of the old corporations legislation of a State or Territory, and for the
purpose of any reference in this part to a corresponding provision of the new
corporations legislation, this Act is taken to include the transitional
provisions of the old corporations legislation of the States and Territories,
as they have effect because of subsections (1) and (2).
(5) Nothing in subsection (1) or (2), or
in regulations made for the purposes of subsection (3), is taken to
produce a result that a right or liability exists under a transitional
provision as it has effect because of subsection (1) or (2), or exists
under regulations made for the purposes of subsection (3), that relates
solely to events, circumstances or things that occurred before the commencement.
Note: Instead, an equivalent right or liability will
be created by section 1400 or 1401.
(6) Subject to subsection (7), for the
purposes of this section, a transitional provision is any of the
provisions of the old Corporations Laws of the States and Territories in this
jurisdiction listed in the following table.
|
Transitional
provisions of old Corporations Law
|
|
Item
|
Provisions
|
|
1
|
subsection
87(1A)
|
|
2
|
subsection
88(1A)
|
|
3
|
sections 109E
to 109G and section 109T
|
|
4
|
section 268A
|
|
5
|
section 275
|
|
6
|
section 275A
|
|
7
|
Subsections
319(4), (5) and (6)
|
|
8
|
section 601
|
|
9
|
subsection
774(7)
|
|
10
|
subsection
895(3)
|
|
11
|
subsection
977(4)
|
|
12
|
subsection
990(2)
|
|
13
|
section 993
|
|
14
|
subsection
1228(3)
|
|
15
|
subsections
1274(17) and (18)
|
|
16
|
subsections
1288(1), (2) and (6)
|
|
17
|
paragraph
1311(1A)(f) and subsection 1311(3A)
|
|
18
|
section 1336A
|
|
19
|
Chapter 11,
other than section 1416
|
|
20
|
Schedule 4,
other than the following provisions:
(a) subclauses 7(3), 8(2) and 9(4);
(b) clauses 11 to 16;
(c) subclause 17(2);
(d) clauses 18 and 19;
(e) clauses 20, 25 and 27;
(f) Parts 5, 6 and 7.
|
(7) The regulations may provide that certain
provisions are to be taken to be included in, or omitted from, the table in subsection (6).
The table then has effect as if the provisions were so included in it or
omitted from it.
Division 7—Regulations dealing with transitional matters
1409
Regulations may deal with transitional matters
(1) The regulations may deal with matters of
a transitional nature relating to the transition from the application of
provisions of the old corporations legislation of the States and Territories in
this jurisdiction to the application of provisions of the new corporations
legislation. The regulations have effect despite anything else in this Part,
other than section 1375.
(2) Without limiting subsection (1), the
regulations may provide for a matter to be dealt with, wholly or partly, in any
of the following ways:
(a) by applying (with or without
modifications) to the matter:
(i) provisions of the old
corporations legislation of the States and Territories in this jurisdiction, as
in force immediately before the commencement or at some earlier time; or
(ii) provisions of the new
corporations legislation; or
(iii) a combination of
provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for
dealing with the matter;
(c) by specifying a particular
consequence of the matter, or of an outcome of the matter, for the purposes of
the new corporations legislation.
(3) The regulations may provide that certain
provisions of this Part are taken to be modified as set out in the regulations.
Those provisions then have effect as if they were so modified.
(4) Despite subsection 12(2) of the Legislative
Instruments Act 2003, regulations for the purposes of this section may be
expressed to take effect from a date before the regulations are registered
under that Act.
(5) In this section:
matters of a transitional nature also
includes matters of an application or saving nature.
Part 10.2—Transitional provisions relating to the Financial Services
Reform Act 2001
Division 1—Transitional provisions relating to the phasing‑in of
the new financial services regime
Subdivision A—Preliminary
1410
Definitions
(1) In this Division, unless the contrary
intention appears:
amended Corporations Act means this Act as in
force after the FSR commencement.
associated provisions, in relation to
provisions (the core provisions) of a particular Act as in force
at a particular time, include (but are not limited to):
(a) any regulations or other
instruments that are or were in force for the purposes of any of the core
provisions at that time; and
(b) any interpretation provisions that
apply or applied in relation to any of the core provisions at that time
(whether or not they also apply or applied for other purposes); and
(c) any provisions relating to
liability (civil or criminal) that apply or applied in relation to any of the
core provisions at that time (whether or not they also apply or applied for
other purposes); and
(d) any provisions that limit or
limited, or that otherwise affect or affected, the operation of any of the core
provisions at that time (whether or not they also limit or limited, or affect
or affected, the operation of other provisions).
class, in relation to financial products,
has a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement means the commencement of
item 1 of Schedule 1 to the Financial Services Reform Act 2001.
old Corporations Act means this Act as in
force immediately before the FSR commencement.
regulated activities, in relation to a
regulated principal, has the meaning given by section 1430.
regulated principal has the meaning given by
section 1430.
relevant old legislation, in
relation to a regulated principal, has the meaning given by section 1430.
transition period:
(a) in relation to a market to which
section 1414, 1418, 1420, 1421 or 1422 applies—has the meaning given by subsection (2)
of that section; and
(b) in relation to a market to which section 1417
applies and the additional products referred to in that section—has the meaning
given by subsection 1417(2); and
(c) in relation to a clearing and
settlement facility to which section 1426 or 1429 applies—has the meaning
given by subsection (2) of that section; and
(d) in relation to a clearing and
settlement facility to which section 1428 applies and the additional
products referred to in that section—has the meaning given by subsection
1428(2); and
(e) in relation to a regulated
principal—has the meaning given by subsection 1431(1); and
(f) in relation to a financial
product to which section 1438 applies—has the meaning given by subsection (3)
of that section.
(1A) Other expressions used in this Part that
are defined in Division 2 of Part 7.1 have the same meanings as they
are given by that Division. This has effect subject to:
(a) any contrary intention in a
provision of this Part; or
(b) regulations made for the purposes
of this paragraph.
(2) The regulations may include provisions identifying,
or providing for the identification of, what constitutes a class of
financial products for the purposes of a provision or provisions of this
Division.
(3) If a provision of this Division (the transitional
provision) provides for a provision of this or another Act (the preserved
provision), as in force immediately before the FSR commencement, to
continue to apply to or in relation to a person, thing or matter:
(a) the preserved provision so
continues to apply only to the extent (if any) to which it is expressed in
terms that cover the person, thing or matter; and
(b) the transitional provision is not
taken to extend the scope of the preserved provision (otherwise than by giving
it a continued operation).
Subdivision B—Treatment of existing markets
1411
When is a market being operated immediately before the FSR commencement?
Subject to section 1412, in this
Subdivision, a reference to a market being operated immediately before
the FSR commencement is a reference to a market that had not permanently
ceased to operate before the FSR commencement, even if trading on the market
was not actually occurring immediately before the FSR commencement (for
example, because of a routine temporary closure of the market).
1412
Treatment of proposed markets that have not started to operate by the FSR
commencement
(1) This section applies in relation to the
following proposed markets, other than any such market that starts to operate
before the FSR commencement:
(a) a market proposed to be operated
by Bendigo Stock Exchange Ltd, or by ASX Futures Exchange Pty Limited, that is
identified in writing by the Minister as being a proposed market to which this
section applies;
(b) any other proposed market
identified in, or in accordance with, regulations made for the purposes of this
paragraph.
For this purpose, a proposed market is a
market that a person has, before the FSR commencement, indicated an intention
that they propose to operate.
(2) This Subdivision applies in relation to a
proposed market to which this section applies subject to the following
paragraphs:
(a) subject to paragraphs (b),
(c) and (d), this Subdivision applies in relation to the proposed market as if
the market, as proposed to be operated, were in fact being operated immediately
before the FSR commencement;
(b) if, taking account of the effect
of paragraph (a), section 1413 applies in relation to the proposed
market, that section applies in relation to the proposed market:
(i) as if the Minister’s
obligation to grant a licence, and impose conditions, under subsection 1413(2)
in relation to the market does not arise unless and until the market operator
lodges with ASIC a notice in relation to the market under subsection (3)
of this section, and does not arise at all if no such notice is given to ASIC
by the end of 6 months after the FSR commencement; and
(ii) as if subsection
1413(3) provided for a licence so granted under subsection 1413(2) in relation
to the market, and the conditions subject to which it is granted, to be taken
to have had effect from the day (the start day) specified in the subsection (3)
notice as the day on which the market started to operate; and
(iii) as if subsection
1413(6) were omitted; and
(iv) as if the references in
subsection 1413(8) to the FSR commencement were instead references to the start
day;
(c) if:
(i) taking account of the
effect of paragraph (a), section 1418, 1420, 1421 or 1422 applies to
the proposed market; and
(ii) the market operator
does not lodge with ASIC a notice in relation to the market under subsection (3)
of this section by the end of 6 months after the FSR commencement;
that section ceases to apply in
relation to the proposed market at the end of that period;
(d) if a provision of this Subdivision
provides for a provision of the old Corporations Act to continue to apply in
relation to the proposed market, then (without limiting the generality of
subsection 1410(3)), while the proposed market remains non‑operational,
the provision of the old Corporations Act only applies in relation to the
proposed market to the extent (if any) to which it would, disregarding the
effect of paragraph (a), apply in relation to the proposed market.
(3) If a proposed market to which this
section applies starts to operate on a day during the period of 6 months
starting on the FSR commencement, the operator must, as soon as practicable,
and in any event within 7 days, lodge with ASIC written notice of the fact that
the market started to operate on that day.
Note: Failure to comply with this subsection is an offence
(see subsection 1311(1)).
(4) ASIC must, within a reasonable time, give
the Minister a notice it receives under subsection (3).
1413
Obligation of Minister to grant licences covering main existing markets
(1) This section applies to each market being
operated immediately before the FSR commencement in relation to which any of
the following paragraphs applies:
(a) the market was a stock market
operated by the Australian Stock Exchange Limited;
(b) the market was a stock market
operated by a body corporate covered by an approval in force under subsection
769(2) of the old Corporations Act;
(c) the market was a futures market
operated by a body corporate covered by an approval in force under subsection
1126(2) of the old Corporations Act.
(2) Subject to subsections (3) and (4),
the Minister must, in relation to each market to which this section applies,
grant the operator of the market a licence, and impose conditions on that
licence, in accordance with the following requirements:
(a) the licence must be described as
an Australian market licence;
(b) the licence must be granted
subject to the following conditions:
(i) a condition specifying
the market as the market that the licence authorises the licensee to operate;
(ii) a condition
specifying, as the classes of financial products that can be dealt with on the
market, the classes that are appropriate for the market under subsection (5);
(iii) if the Minister
considers that the licensee should have clearing and settlement arrangements
for transactions effected through the market—a condition specifying the type of
clearing and settlement arrangements that are adequate.
(3) Subject to subsection (6), a licence
that subsection (2) requires to be granted must be granted on, or as soon
as practicable after, the FSR commencement. If it is granted after the FSR
commencement, it, and the conditions subject to which it is granted, are taken
to have had effect from that commencement.
(4) Sections 795D (more than one licence
in the same document) and 795E (more than one market covered by the same
licence) of the amended Corporations Act apply in relation to the granting of
licences, and licences granted, under this section as if the licences were, or
were being, granted under section 795B of that Act. If, pursuant to
section 795E, a single licence is granted under this section in respect of
several separate markets, paragraph (2)(b) of this section must be
complied with separately in the licence document in relation to each of those
markets.
(5) For the purposes of subparagraph (2)(b)(ii),
the classes of financial products that are appropriate for a
market to which this section applies are as follows:
(a) for a market described in paragraph (1)(a)
or (b)—securities, within the meaning of section 92 of the old
Corporations Act as applying for the purposes of Part 7.2 of the old
Corporations Act, and agreements of a kind to which section 92A of the old
Corporations Act applied immediately before the FSR commencement (or would have
applied after the FSR commencement if that section, and any associated
provisions, had continued to have effect);
(b) for a market described in paragraph (1)(c)—futures
contracts, within the meaning of section 72 of the old Corporations Act,
and agreements of a kind to which section 72A of the old Corporations Act
applied immediately before the FSR commencement (or would have applied after
the FSR commencement if that section, and any associated provisions, had
continued to have effect).
(6) Despite anything in subsection (3),
the Minister may, under this section, grant a licence, and impose conditions on
the licence, at any time during the period starting on the commencement of this
section and ending on the FSR commencement on the basis that matters known to
the Minister in relation to the market concerned will continue to be the case
up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come
into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke
the licence, or any of the conditions, before the FSR commencement if the
Minister considers it appropriate to do so having regard to the provisions of
this section concerning the granting of licences and the imposition of
conditions; and
(c) the licence and conditions do not
come into effect on the FSR commencement if, immediately before the FSR
commencement, the market is not a market to which this section applies.
(7) If the Minister grants a licence under
this section, the Minister must give the operator of the market written notice
of:
(a) the grant of the licence, and the
conditions imposed on the licence; and
(b) any subsequent revocation or
variation under subsection (6) of the licence or conditions.
(8) A notice advising of the grant of a
licence under this section must contain a statement to the effect that the
licence and conditions will not take effect until the FSR commencement, or will
be taken to have had effect from the FSR commencement, as the case requires.
1414
Section 1413 markets—effect of licences and conditions
(1) Subject to subsections (2) to (4):
(a) a licence granted under section 1413
that authorises the operation of a market is, for the purposes of the amended
Corporations Act (other than this section), taken to have been granted (and to
have been properly granted) under section 795B of the amended Corporations
Act; and
(b) conditions imposed under section 1413
on the licence are, for the purposes of the amended Corporations Act (other
than this section), taken to have been imposed (and to have been properly
imposed) under section 796A of the amended Corporations Act.
Note 1: Section 795C of the amended Corporations
Act (publication of notice of licence grant) applies to the grant of the
licence.
Note 2: The conditions may be varied or revoked, and
additional conditions may be imposed, under section 796A of the amended
Corporations Act.
(2) Subject to subsection (4), the
relevant new legislation (see subsection (6)) does not apply in relation
to the market during the period (the transition period) starting
on the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) conditions on the licence are
varied or revoked, or additional conditions are imposed on the licence,
pursuant to an application by the licensee under subsection 796A(2) of the
amended Corporations Act;
(c) the licensee has lodged with ASIC
notice in writing that it wants to take advantage of the compensation
arrangements under Division 3 of Part 7.5 of the amended Corporations
Act:
(i) from a specified date,
being a date that is after the notice is given to ASIC and that is after
compensation arrangements for the market have been approved under Division 3
of Part 7.5 of the amended Corporations Act (see also subsection (4));
or
(ii) from the end of a
specified period, being a period that is described as starting when
compensation arrangements for the market are approved under Division 3 of
Part 7.5 of the amended Corporations Act (see also subsection (4))
and that ends after the notice is given to ASIC;
and that date arrives or period
ends.
(3) A notice (the original notice)
given for the purposes of paragraph (2)(c) may, before the date, or the
end of the period, specified in the original notice as mentioned in that
paragraph:
(a) be varied to specify another date
or period, being a date or period that would satisfy the requirements of subparagraph (2)(c)(i)
or (ii) if the reference in that subparagraph to when the notice (being the original
notice) is given to ASIC were instead a reference to when the notice of
variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in
writing lodged with ASIC.
(4) If the relevant new legislation in
relation to a market includes Part 7.5 of the amended Corporations Act,
then, despite subsection (2), Division 3 of that Part applies to the
market during the transition period to the extent necessary for the operator to
apply to have compensation arrangements for the market approved before the end
of the transition period, and for that application to be determined. However,
any approval of the arrangements under that Division does not take effect until
immediately after the end of the transition period.
(5) The annual report of the licensee (see
section 792F of the amended Corporations Act) for a financial year in
which part of the transition period occurs, other than a financial year in
which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in
the next year;
to ensure that the relevant new legislation will be
complied with by the time the transition period ends.
(6) In this section:
relevant new legislation, in relation to a
market, means:
(a) section 793A of the amended
Corporations Act; and
(b) unless the market is a market to
which Division 4 of Part 7.5 of the amended Corporations Act
applies—Part 7.5 of the amended Corporations Act.
1415
Section 1413 markets—preservation of old Corporations Act provisions
during transition period
Preservation of compensation regimes
(1) If, during the transition period in
relation to a market the operation of which is authorised by a licence granted
under section 1413, Part 7.5 of the amended Corporations Act does not
apply in relation to the market (except as provided in subsection 1414(4))
because of subsection 1414(2), Part 7.9, or Part 8.6, as the case
requires, of the old Corporations Act, and any associated provisions, continue
to apply in relation to the market during the transition period.
Preservation of certain ongoing requirements
(2) During the transition period in
relation to a market:
(a) the operation of which is
authorised by a licence granted under section 1413; and
(b) that, immediately before the FSR
commencement, was a securities exchange to which section 769A of the old
Corporations Act applied;
the following provisions continue to apply in relation to
the market:
(c) paragraphs 769A(1)(c) and (e) of
the old Corporations Act, and any associated provisions;
(d) section 769B of the old
Corporations Act (but only as applying in relation to paragraphs 769A(1)(c) and
(e) of the old Corporations Act), and any associated provisions.
1416
Section 1413 markets—powers for regulations to change how the old and new
Corporations Act apply during the transition period
(1) The regulations may do all or any of the
following in relation to a market the operation of which is authorised by a
licence granted under section 1413:
(a) provide that some or all of the
provisions (the relevant old legislation) that would otherwise
continue to apply in relation to the market because of section 1415 do not
apply in relation to the market;
(b) provide that some or all of the
relevant old legislation applies in relation to the market with specified
modifications during some or all of the transition period for the market;
(c) provide that some or all of the
relevant new legislation (within the meaning of section 1414) in relation
to the market applies in relation to the market during some or all of the
transition period for the market;
(d) provide that specified provisions
of the amended Corporations Act (including relevant new legislation), and any
associated provisions, apply in relation to the market during some or all of
the transition period for the market with specified modifications.
(2) Regulations made for the purposes of subsection (1)
have effect despite anything in sections 1414 and 1415.
(3) Subsection (1) gives a full power to
disapply, apply and modify provisions as mentioned in that subsection,
including for reasons that do not have an express or implied connection with
the transition to the relevant new legislation.
Note: So (for example), a change to the day‑to‑day
operation of the relevant old legislation as continuing to apply may be
achieved by a modification under paragraph (1)(b) (whether that change is
to an existing rule, or is the addition of a new rule).
1417
Section 1413 markets—additional provisions relating to previously
unregulated services
(1) This section applies to a financial
market in relation to which the following paragraphs are satisfied:
(a) a licence is granted under section 1413
to the operator of the market; and
(b) the conditions on the licence
specify, as the classes of financial products that can be dealt with on the
market, the classes of financial products specified in whichever of paragraphs
1413(5)(a) and (b) is applicable; and
(c) immediately before the
commencement, other financial products (the additional products)
were also dealt with on the market, and the fact that the market dealt with
those products did not constitute a contravention of a provision of the old
Corporations Act.
(2) Subject to subsection (3), section 791
of the amended Corporations Act does not apply in relation to the market in so
far as all or any of the additional products are dealt with on the market
during the period (the transition period) starting on the FSR
commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the licensee applies, under
subsection 796A(2) of the amended Corporations Act, to have the conditions on
the licence varied or revoked, or to have additional conditions imposed on the
licence.
(3) The regulations may, in relation to a
market to which this section applies and the additional products, provide that
specified provisions (including section 791A) of the amended Corporations
Act, and any associated provisions, apply in relation to a market to which this
section applies and the additional products during some or all of the
transition period for the market and the products with specified modifications.
1418
Treatment of exempt stock markets and exempt futures markets (other than
markets with no identifiable single operator)
(1) This section applies to the following
markets:
(a) stock markets being operated
immediately before the FSR commencement that were, at that time, covered by a
declaration (the declaration of exemption) in force immediately
before the FSR commencement under subsection 771(1) of the old Corporations
Act;
(b) futures markets being operated
immediately before the FSR commencement that were, at that time, covered by a
declaration (the declaration of exemption) in force immediately
before the FSR commencement under subsection 1127(1) of the old Corporations
Act.
However it does not apply to any market to which section 1419
applies.
(2) Subject to subsection (5), section 791A
of the amended Corporations Act does not apply in relation to a stock market or
futures market to which this section applies during the period (the transition
period) starting on the FSR commencement and ending on whichever of the
following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the operator of the market is
granted a licence under section 795B of the amended Corporations Act
covering the operation of the market;
(c) the Minister makes an exemption
under section 791C of the amended Corporations Act covering the market;
(d) the declaration of exemption is
revoked.
(3) Subject to subsections (4) and (5),
Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of
a futures market), and any associated provisions, (the relevant old
legislation) of the old Corporations Act continue to apply in relation
to a stock market or futures market to which this section applies during the
transition period for the market.
(4) The declaration of exemption (including
any conditions specified in the declaration) for a stock market or futures
market to which this section applies cannot be varied during the transition
period for the market so as to cover the market providing services that were
not covered by the declaration as in force immediately before the FSR
commencement. However, it may be varied in other ways, or revoked, by the
Minister in writing.
(5) The regulations may do all or any of the
following:
(a) provide that some or all of the
relevant old legislation does not apply in relation to a stock market or
futures market to which this section applies during some or all of the
transition period for the market;
(b) provide that some or all of the
relevant old legislation applies in relation to a stock market or futures
market to which this section applies with specified modifications during some
or all of the transition period for the market;
(c) provide that specified provisions
of the amended Corporations Act (including section 791A), and any
associated provisions, apply in relation to a stock market or futures market to
which this section applies during some or all of the transition period for the
market with specified modifications.
1419
Treatment of exempt stock markets and exempt futures markets that do not have a
single identifiable operator
(1) This section applies to the following
markets:
(a) stock markets being operated
immediately before the FSR commencement:
(i) that were, at that
time, covered by a declaration (the declaration of exemption) in
force immediately before the FSR commencement under subsection 771(1) of the
old Corporations Act; but
(ii) that did not have a
single person who could be identified as the operator of the market;
(b) futures markets being operated
immediately before the FSR commencement:
(i) that were, at that
time, covered by a declaration (the declaration of exemption) in
force immediately before the FSR commencement under subsection 1127(1) of the
old Corporations Act; but
(ii) that did not have a
single person who could be identified as the operator of the market.
(2) In this section:
exempted participant, in relation to a market
to which this section applies, means a person:
(a) who is covered by the declaration
of exemption (otherwise than in their capacity as a representative of another
person who is covered by the declaration); and
(b) whose activities connected with
the market after the FSR commencement are activities that, but for this
section, would be required by section 911A of the amended Corporations Act
to be covered by an Australian financial services licence.
(3) Subject to subsections (4) and (5),
Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of
a futures market), and any associated provisions, (the relevant old
legislation) of the old Corporations Act continue to apply in relation
to an exempted participant and a stock market or futures market to which this
section applies during any period during which section 1431 provides that
the relevant new legislation (within the meaning of subsection 1431(1)) does
not apply in relation to the exempted participant’s activities connected with
the market.
(4) The declaration of exemption (including
any conditions specified in the declaration) for a stock market or futures
market to which this section applies cannot:
(a) be varied during the transition
period for an exempted participant and the market so as to cover the market
providing services that were not covered by the declaration as in force
immediately before the FSR commencement; or
(b) be varied after the FSR
commencement so as to cover a person or persons it did not cover immediately
before the commencement.
However, it may be varied in other ways, or revoked, by
the Minister in writing.
(5) The regulations may do either or both of
the following:
(a) provide that some or all of the
relevant old legislation does not apply in relation to an exempted participant
and a market to which this section applies during some or all of the transition
period for the exempted participant and the market;
(b) provide that some or all of the
relevant old legislation applies in relation to an exempted participant and a
market to which this section applies with specified modifications during some
or all of the transition period for the exempted participant and the market.
1420
Treatment of stock markets of approved securities organisations
(1) This section applies to each stock market
being operated immediately before the FSR commencement by a body corporate
covered by an approval (the instrument of approval) in force
immediately before the FSR commencement under subsection 770(2) of the old
Corporations Act, other than a stock market to which section 1413 applies.
(2) Subject to subsections (3) and (5),
section 791A of the amended Corporations Act does not apply in relation to
a stock market to which this section applies during the period (the transition
period) starting on the FSR commencement and ending on whichever of the
following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the operator of the market is
granted a licence under section 795B of the amended Corporations Act
covering the operation of the market;
(c) the Minister makes an exemption
under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is
revoked.
(3) Subject to subsections (4) and (5),
Parts 7.2 and 7.9, and any associated provisions, (the relevant old
legislation) of the old Corporations Act continue to apply in relation
to a stock market to which this section applies during the transition period
for the market.
(4) The instrument of approval (including any
conditions specified in the instrument) for a stock market to which this
section applies cannot be varied during the transition period for the
market so as to cover the market providing services that were not covered by
the instrument as in force immediately before the FSR commencement. However it
may be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do all or any of the
following:
(a) provide that some or all of the
relevant old legislation does not apply in relation to a stock market to which
this section applies during some or all of the transition period for the
market;
(b) provide that some or all of the
relevant old legislation applies in relation to a stock market to which this
section applies with specified modifications during some or all of the
transition period for the market;
(c) provide that specified provisions
of the amended Corporations Act (including section 791A), and any
associated provisions, apply in relation to a stock market to which this
section applies during some or all of the transition period for the market with
specified modifications.
1421
Treatment of special stock markets for unquoted interests in a registered
scheme
(1) This section applies to each stock market
being operated before the FSR commencement by a body corporate covered by an
approval (the instrument of approval) in force immediately before
the FSR commencement under subsection 770A(2) of the old Corporations Act.
(2) Subject to subsection (5), section 791A
of the amended Corporations Act does not apply in relation to a stock market to
which this section applies during the period (the transition period)
starting on the FSR commencement and ending on whichever of the following first
occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the operator of the market is
granted a licence under section 795B of the amended Corporations Act
covering the operation of the market;
(c) the Minister makes an exemption
under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is
revoked.
(3) Subject to subsections (4) and (5),
Part 7.2, and any associated provisions, (the relevant old
legislation) of the old Corporations Act continue to apply in relation
to a stock market to which this section applies during the transition period
for the market.
(4) The instrument of approval (including any
conditions specified in the instrument) for a stock market to which this
section applies cannot be varied during the transition period for the market so
as to cover the market providing services that were not covered by the
instrument as in force immediately before the FSR commencement. However it may
be varied in other ways, or revoked, by the Minister in writing.
(5) The regulations may do all or any of the
following:
(a) provide that some or all of the
relevant old legislation does not apply in relation to a stock market to which
this section applies during some or all of the transition period for the
market;
(b) provide that some or all of the
relevant old legislation applies in relation to a stock market to which this
section applies during some or all of the transition period for the market with
specified modifications;
(c) provide that specified provisions
(including section 791A) of the amended Corporations Act, and any
associated provisions, apply in relation to a stock market to which this
section applies during some or all of the transition period for the market with
specified modifications.
1422
Treatment of other markets that were not unauthorised
(1) This section applies to each market in
relation to which the following paragraphs are satisfied:
(a) the market is a financial market
within the meaning of the amended Corporations Act;
(b) the market was being operated
immediately before the FSR commencement;
(c) the market is not a market to
which section 1413, 1418, 1419, 1420 or 1421 applies;
(d) the market was not an unauthorised
stock market or an unauthorised futures market (as defined in section 9 of
the old Corporations Act) immediately before the FSR commencement.
(2) Subject to subsection (3), section 791A
of the amended Corporations Act does not apply in relation to a market to which
this section applies during the period (the transition period)
starting on the FSR commencement and ending on whichever of the following first
occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the operator of the market is
granted a licence under section 795B of the amended Corporations Act
covering the operation of the market;
(c) the Minister makes an exemption
under section 791C of the amended Corporations Act covering the market;
(d) the market starts to provide
services in respect of a class or classes of financial products in respect of
which it did not provide services immediately before the commencement.
(3) The regulations may, in relation to a
market to which this section applies, provide that specified provisions
(including section 791A) of the amended Corporations Act, and any
associated provisions, apply in relation to the market during some or all of
the transition period for the market with specified modifications.
Subdivision C—Treatment of existing clearing and settlement facilities
1423
When is a clearing and settlement facility being operated immediately before
the FSR commencement?
Subject to section 1424, in this
Subdivision, a reference to a clearing and settlement facility being
operated immediately before the FSR commencement is a reference to a
clearing and settlement facility that had not permanently ceased to operate
before the FSR commencement, even if the clearing and settlement of
transactions by means of the facility was not actually occurring immediately
before the FSR commencement (for example, because of a routine temporary
closure of the facility).
1424
Treatment of proposed clearing and settlement facilities that have not started
to operate by the FSR commencement
(1) This section applies in relation to any
proposed clearing and settlement facilities identified in, or in accordance
with, regulations made for the purposes of this subsection. For this purpose, a
proposed clearing and settlement facility is a clearing and
settlement facility that a person has, before the FSR commencement, indicated
an intention that they propose to operate.
(2) This Subdivision applies in relation to a
proposed clearing and settlement facility to which this section applies subject
to the following paragraphs:
(a) subject to paragraphs (b),
(c) and (d), this Subdivision applies in relation to the proposed facility as
if the facility, as proposed to be operated, were in fact being operated immediately
before the FSR commencement;
(b) if, taking account of the effect
of paragraph (a), section 1425 applies in relation to the proposed
facility, that section applies in relation to the proposed facility:
(i) as if the Minister’s
obligation to grant a licence, and impose conditions, under subsection 1425(2)
in relation to the proposed facility does not arise unless and until the
facility operator lodges with ASIC a notice in relation to the facility under subsection (3)
of this section, and does not arise at all if no such notice is given to ASIC
by the end of 6 months after the FSR commencement; and
(ii) as if subsection
1425(3) provided for a licence so granted under subsection 1425(2) in relation
to the facility, and the conditions subject to which it is granted, to be taken
to have had effect from the day (the start day) specified in the subsection (3)
notice as the day on which the facility started to operate; and
(iii) as if subsection
1425(6) were omitted; and
(iv) as if the references in
subsection 1425(8) to the FSR commencement were instead references to the start
day;
(c) if:
(i) taking account of the
effect of paragraph (a), section 1429 applies to the proposed
facility; and
(ii) the facility operator
does not lodge with ASIC a notice in relation to the facility under subsection (3)
of this section by the end of 6 months after the FSR commencement;
that section ceases to apply in
relation to the proposed facility at the end of that period;
(d) if a provision of this Subdivision
provides for a provision of the old Corporations Act to continue to apply in
relation to the proposed facility, then (without limiting the generality of
subsection 1410(3)), while the proposed facility remains non‑operational,
the provision of the old Corporations Act only applies in relation to the
proposed facility to the extent (if any) to which it would, disregarding the
effect of paragraph (a), apply in relation to the proposed facility.
(3) If a proposed clearing and settlement
facility to which this section applies starts to operate on a day during the
period of 6 months starting on the FSR commencement, the operator must, as soon
as practicable, and in any event within 7 days, lodge with ASIC written notice
of the fact that the facility started to operate on that day.
Note: Failure to comply with this subsection is an
offence (see subsection 1311(1)).
(4) ASIC must, within a reasonable time, give
the Minister a notice it receives under subsection (3).
1424A
Treatment of unregulated clearing and settlement facilities operated by holders of old Corporations Act
approvals
(1) This section applies in relation to a
clearing and settlement facility if:
(a) the facility was being operated
immediately before the FSR commencement by a body corporate in relation to
which an approval under section 1131 of the old Corporations Act was in
force at that time; but
(b) the services provided by the
facility as so operated were not such that section 1128 of the old
Corporations Act required the operator to be so approved.
(2) In this section:
(a) a reference to the unregulated
services is a reference to the services referred to in paragraph (1)(b);
and
(b) a reference to regulated
services is a reference to services that, if they had been provided by
the facility immediately before the commencement, would have been services to
which section 1128 of the old Corporations Act applied.
(3) For the purposes of section 1425 (as
it operates of its own force, rather than because of section 1424), the
facility is not to be regarded as a facility that was being operated
immediately before the FSR commencement.
(4) If the operator has, before the FSR
commencement, indicated an intention that they propose to extend the services
provided by the facility so that they also cover regulated services:
(a) regulations made for the purposes
of subsection 1424(1) may identify the facility as a proposed clearing and
settlement facility, but only in relation to those regulated services; and
(b) if they do so, section 1424,
and section 1425 as it applies because of section 1424, apply in
relation to the facility and those regulated services as if the facility did
not already provide the unregulated services.
1425
Obligation of Minister to grant licences covering main existing facilities
(1) This section applies to each clearing and
settlement facility being operated immediately before the FSR commencement in
relation to which either of the following paragraphs applies:
(a) the facility was being operated by
the body corporate that was, for the purposes of the old Corporations Act, the
securities clearing house;
(b) the facility was being operated by
a body corporate in relation to which an approval (the section 1131
approval) under section 1131 of the old Corporations Act was in
force at that time.
(2) Subject to subsections (3) and (4),
the Minister must, in relation to each clearing and settlement facility to
which this section applies, grant the operator of the facility a licence, and
impose conditions on that licence, in accordance with the following
requirements:
(a) the licence must be described as
an Australian CS facility licence;
(b) the licence must be granted
subject to the following conditions:
(i) a condition specifying
the facility as the facility that the licence authorises the licensee to
operate;
(ii) a condition
specifying, as the classes of financial products in respect of which the
facility can provide services, the classes that are appropriate for the
facility under subsection (5);
(iii) in the case of a
facility to which paragraph (1)(b) applies—a condition to the effect that
the licence only covers the facility providing services for the market or
markets that were covered by the section 1131 approval.
(3) Subject to subsection (6), a licence
that subsection (2) requires to be granted must be granted on, or as soon
as practicable after, the FSR commencement. If it is granted after the FSR
commencement, it, and the conditions subject to which it is granted, are taken
to have had effect from that commencement.
(4) Sections 824D (more than one licence
in the same document) and 824E (more than one CS facility covered by the same
licence) of the amended Corporations Act apply in relation to the granting of
licences, and licences granted, under this section as if the licences were, or
were being, granted under section 824B of that Act. If, pursuant to
section 824E, a single licence is granted under this section in respect of
several separate facilities, paragraph (2)(b) of this section must be
complied with separately in the licence document in relation to each of those
facilities.
(5) For the purposes of subparagraph (2)(b)(ii),
the classes of financial products that are appropriate for a
facility to which this section applies are as follows:
(a) for a facility described in paragraph (1)(a)—securities,
within the meaning of section 92 of the old Corporations Act as applying
for the purposes of Part 7.2 of the old Corporations Act, and agreements
of a kind to which section 92A of the old Corporations Act applied
immediately before the FSR commencement (or would have applied after the FSR
commencement if that section, and any associated provisions, had continued to
have effect);
(b) for a facility described in paragraph (1)(b)—futures
contracts, within the meaning of section 72 of the old Corporations Act,
and agreements of a kind to which section 72A of the old Corporations Act
applied immediately before the FSR commencement (or would have applied after
the FSR commencement if that section, and any associated provisions, had
continued to have effect).
(6) Despite anything in subsection (3),
the Minister may, under this section, grant a licence, and impose conditions on
the licence, at any time during the period starting on the commencement of this
section and ending on the FSR commencement on the basis that matters known to
the Minister in relation to the clearing and settlement facility concerned will
continue to be the case up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come
into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke
the licence, or any of the conditions, before the FSR commencement if the
Minister considers it appropriate to do so having regard to the provisions of
this section concerning the granting of licences and the imposition of
conditions; and
(c) the licence and conditions do not
come into effect on the FSR commencement if, immediately before the FSR
commencement, the facility is not a clearing and settlement facility to which this
section applies.
(7) If the Minister grants a licence under
this section, the Minister must give the operator of the clearing and
settlement facility written notice of:
(a) the grant of the licence, and the
conditions imposed on the licence; and
(b) any subsequent revocation or
variation under subsection (6) of the licence or conditions.
(8) A notice advising of the grant of a
licence under this section must contain a statement to the effect that the
licence and conditions will not take effect until the FSR commencement, or will
be taken to have had effect from the FSR commencement, as the case requires.
1426
Section 1425 facilities—effect of licences and conditions
(1) Subject to subsections (2) to (4):
(a) a licence granted under section 1425
that authorises the operation of a facility is, for the purposes of the amended
Corporations Act (other than this section), taken to have been granted (and to
have been properly granted) under section 824B of the amended Corporations
Act; and
(b) conditions imposed under section 1425
on the licence are, for the purposes of the amended Corporations Act (other
than this section), taken to have been imposed (and to have been properly
imposed) under section 825A of the amended Corporations Act.
Note 1: Section 824C of the amended Corporations
Act (publication of notice of licence grant) applies to the grant of the
licence.
Note 2: The conditions may be varied or revoked, and
additional conditions may be imposed, under section 825A of the amended
Corporations Act.
(2) Section 822A of the amended
Corporations Act does not apply in relation to the facility during the period
(the transition period) starting on the FSR commencement and
ending on whichever of the following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) conditions on the licence are
varied or revoked, or additional conditions are imposed on the licence,
pursuant to an application by the licensee under subsection 825A(2) of the
amended Corporations Act.
(3) The annual report of the licensee (see
section 821E of the amended Corporations Act) for a financial year in
which part of the transition period occurs, other than a financial year in
which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in
the next year;
to ensure that section 822A of the amended
Corporations Act will be complied with by the time the transition period ends.
1427
Section 1425 facilities—powers for regulations to change how the old and
new Corporations Act apply during the transition period
(1) The regulations may do either or both of
the following in relation to a clearing and settlement facility the operation
of which is authorised by a licence granted under section 1425:
(a) provide that section 822A of
the amended Corporations Act, and any associated provisions, apply in relation
to the facility during some or all the transition period for the facility;
(b) provide that specified provisions
of the amended Corporations Act (including section 822A), and any
associated provisions, apply in relation to the facility during some or all of
the transition period for the facility with specified modifications.
(2) Regulations made for the purposes of subsection (1)
have effect despite anything in section 1426.
1428
Section 1425 facilities—additional provisions relating to previously
unregulated services
(1) This section applies to a clearing and
settlement facility in relation to which the following paragraphs are
satisfied:
(a) a licence is granted under section 1425
to the operator of the facility; and
(b) the conditions on the licence
specify, as the classes of financial products in respect of which the facility
can provide services, the classes of financial products specified in whichever
of paragraphs 1425(5)(a) and (b) is applicable; and
(c) the facility also, immediately
before the commencement, provided services in respect of one or more other
classes of financial products (the additional products) and the
fact that it did so did not constitute a contravention of a provision of the
old Corporations Act.
(2) Subject to subsection (3), section 820A
of the amended Corporations Act does not apply in relation to the facility in
so far as it provides services in respect of all or any of the additional
products during the period (the transition period) starting on
the FSR commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) conditions on the licence are
varied or revoked, or additional conditions are imposed on the licence,
pursuant to an application by the licensee under subsection 825A(2) of the
amended Corporations Act.
(3) The regulations may provide that
specified provisions of the amended Corporations Act (including section 820A),
and any associated provisions, apply in relation to a clearing and settlement
facility to which this section applies, and its provision of services in
respect of all or any of the additional products, during some or all of the
transition period for the facility and the products with specified
modifications.
1429
Treatment of other clearing and settlement facilities
(1) This section applies to each clearing and
settlement facility being operated immediately before the FSR commencement in
relation to which both of the following paragraphs are satisfied:
(a) the clearing and settlement
facility is not a facility to which section 1425 applies;
(b) section 1128 of the old
Corporations Act did not, immediately before the FSR commencement, require the
operator of the facility to be a person approved under section 1131.
(2) Subject to subsection (3), section 820A
of the amended Corporations Act does not apply in relation to the facility
during the period (the transition period) starting on the FSR
commencement and ending on whichever of the following first occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the operator of the facility is
granted a licence under section 824B of the amended Corporations Act
covering the facility;
(c) the Minister makes an exemption
under section 820C of the amended Corporations Act covering the facility;
(d) the facility starts to provide
services in respect of a class or classes of financial products in respect of
which it did not provide services immediately before the FSR commencement.
(3) The regulations may provide that
specified provisions of the amended Corporations Act (including section 820A),
and any associated provisions, apply in relation to a clearing and settlement
facility to which this section applies during some or all of the transition
period for the facility with specified modifications.
Subdivision D—Treatment of people who carry on financial services
businesses and their representatives
1430
Meaning of regulated principal, regulated activities and relevant
old legislation
(1) For the purposes of this Subdivision, a
person is a regulated principal if, immediately before the FSR
commencement, the person is a person described in column 2 of one of the items
in the following table. The regulated activities of that person
are as specified in column 3 of that item, and the relevant old
legislation are as specified in column 4 of that item.
|
Regulated principals and regulated activities
|
|
Item
|
These persons are regulated principals
|
These are the regulated principal’s regulated
activities
|
This is the relevant old legislation (if any)
|
|
1
|
A holder of a dealers licence within the meaning of the
old Corporations Act.
|
The activities that the licence (as in force immediately
before the FSR commencement) authorised the person to carry on.
|
Parts 7.3, 7.4 (other than Division 2), 7.5, 7.6
and 7.7 of the old Corporations Act, and any associated provisions.
|
|
2
|
A holder of an investment advisers licence within the
meaning of the old Corporations Act.
|
The activities that the licence (as in force immediately
before the FSR commencement) authorised the person to carry on.
|
Parts 7.3, 7.4 (other than Division 2) and 7.7
of the old Corporations Act, and any associated provisions.
|
|
3
|
A holder of a futures brokers licence within the meaning
of the old Corporations Act.
|
The activities that the licence (as in force immediately
before the FSR commencement) authorised the person to carry on.
|
Parts 8.3, 8.4 (other than section 1210) and 8.5
of the old Corporations Act, and any associated provisions.
|
|
4
|
A holder of a futures advisers licence within the meaning
of the old Corporations Act.
|
The activities that the licence (as in force immediately
before the FSR commencement) authorised the person to carry on.
|
Parts 8.3 and 8.4 (other than section 1210) of
the old Corporations Act, and any associated provisions.
|
|
5
|
A registered insurance broker within the meaning of the Insurance
(Agents and Brokers) Act 1984 as in force immediately before the FSR
commencement.
|
The person’s business as an insurance broker within the
meaning of the Insurance (Agents and Brokers) Act 1984 as in force
immediately before the FSR commencement.
|
All the provisions of the Insurance (Agents and
Brokers) Act 1984 as in force immediately before the FSR commencement,
and any associated provisions.
|
|
6
|
A body regulated by APRA carrying on activities that, if
carried on after the FSR commencement, would (apart from this Subdivision) be
required by the amended Corporations Act to be covered by an Australian
financial services licence.
|
The class of activities carried on by the person
immediately before the FSR commencement that, if carried on after the FSR
commencement, would (apart from this Subdivision) be required by the amended
Corporations Act to be covered by an Australian financial services licence.
|
For a body regulated by APRA that was an insurer within
the meaning of the Insurance (Agents and Brokers) Act 1984 as in force
immediately before the FSR commencement—all the provisions of that Act as
then in force, and any associated provisions.
In any other case—subject to any regulations made for the
purposes of this item, there is no relevant old legislation.
|
|
7
|
A person who is a registered foreign insurance agent of an
unauthorised foreign insurer within the meaning of the Insurance (Agents
and Brokers) Act 1984 as in force immediately before the FSR
commencement.
|
The person’s business as a foreign insurance agent.
|
All the provisions of the Insurance (Agents and
Brokers) Act 1984 as in force immediately before the FSR commencement,
and any associated provisions.
|
|
8
|
A holder of a general authority under regulation 38A of
the Banking (Foreign Exchange) Regulations as in force immediately before the
FSR commencement.
|
The activities the authority authorises its holder to
carry on.
|
Regulations 38A and 39 of the Banking (Foreign Exchange)
Regulations as in force immediately before the FSR commencement.
|
|
9
|
A person included in a class of persons specified in
regulations made for the purposes of this item.
|
For a person in a class so specified, the activities
identified in, or in accordance with, the regulations as being the regulated
activities of a person in that class.
|
The provisions (if any) identified in, or in accordance
with, the regulations as being the relevant old legislation for a person in
that class, and any associated provisions.
|
|
10
|
A person who carries on any other activities (that is,
activities that are not regulated activities for the purposes of any of items 1
to 9) that, if carried on after the FSR commencement, would (apart from this
Subdivision) be required by the amended Corporations Act to be covered by an
Australian financial services licence, except to the extent that subsection (2)
excludes this item from applying.
|
The class of activities so carried on by the person
immediately before the FSR commencement that, if carried on after the FSR
commencement, would (apart from this Subdivision) be required by the amended
Corporations Act to be covered by an Australian financial services licence.
|
There is no relevant old legislation.
|
(2) Item 10 of the table in subsection (1)
does not apply to a person and activities they carry on to the extent that the
person’s carrying on of any of those activities is in contravention of any of
the provisions of the relevant old legislation for any of the other categories
of regulated principals.
(3) If a person is a regulated principal of 2
or more different kinds, this Subdivision applies separately in relation to the
person in their capacity as a regulated principal of each of those kinds.
Note: This may result (depending on what action the
regulated principal takes) in a regulated principal having to comply with the
relevant new legislation (within the meaning of subsection 1431(1)) in respect
of their activities as a regulated principal of one kind, but, at the same
time, having to comply with the relevant old legislation in respect of their
activities as a regulated principal of another kind.
1431
Parts 7.6, 7.7 and 7.8 of the amended Corporations Act generally do not
apply to a regulated principal during the transition period
(1) Subject to subsections (2) and (3),
Parts 7.6 (other than Subdivisions A and B of Division 4, and
Division 5), 7.7 and 7.8 (other than section 992A) of the amended
Corporations Act (the relevant new legislation) do not apply to a
regulated principal and their regulated activities during the period (the transition
period) starting on the FSR commencement and ending when the first of
the following events occurs:
(a) the period of 2 years starting on
the FSR commencement ends;
(b) the regulated principal is granted
a licence under section 913B of the amended Corporations Act that covers
their regulated activities;
(c) the regulated principal starts to
be covered by an exemption under subsection 911A(2) of the amended Corporations
Act (or would start to be so covered if that subsection applied) in respect of
their regulated activities;
(d) the regulated principal ceases
(for whatever reason) to have the status that made them a regulated principal.
For the purposes of paragraph (d), having a
status includes holding a licence, registration, approval or other
similar thing, or carrying on particular activities.
Note 1: Because of section 1441, a regulated
principal whose transition period has not ended (and so who is not required to
comply with the relevant new legislation) may nonetheless be required to comply
with obligations under Part 7.9 of the amended Corporations Act.
Note 2: For the treatment of representatives, see
section 1436.
(2) Division 5 of Part 7.6 of the
amended Corporations Act has effect in relation to a regulated principal during
the transition period subject to the following paragraphs:
(a) the regulated principal may give
and revoke authorisations under section 916A or consents under subsection
916B(3) as if the regulated principal were a financial services licensee,
however, for the purposes of the provisions of the amended Corporations Act
outside that Division, such an authorisation or consent is taken not to have
effect unless and until the regulated principal is granted a licence under
section 913B of the amended Corporations Act that covers the activities to
which the authorisation or consent relates (whether or not it also covers other
activities);
(b) a person authorised by a section 916A
authorisation so made by the regulated principal may give and revoke
authorisations under subsection 916B(3) as if they were an authorised
representative and the regulated principal were the authorising financial
services licensee, however, for the purposes of the provisions of the amended
Corporations Act outside that Division, such an authorisation is taken not to
have effect unless and until the regulated principal is granted a licence under
section 913B of the amended Corporations Act that covers the activities to
which the authorisation relates (whether or not it also covers other
activities);
(c) the regulated principal may give
and revoke consents under section 916C as if they were a financial service
licensee, however, any such consent does not take effect unless and until the
regulated principal is granted a licence under section 913B of the amended
Corporations Act;
(d) section 916F applies in
relation to an authorisation so made by the regulated principal during the
transition period as if the period of 15 business days referred to in
subsections 916F(1) and (1A) did not start unless and until the regulated
principal is granted a licence under section 913B of the amended
Corporations Act that covers the activities to which the authorisation relates
(whether or not it also covers other activities), and section 916F does
not apply at all in relation to revocations so made during the transition
period.
(3) If, before paragraph (1)(a) or (d)
occurs:
(a) the regulated principal is granted
a licence under section 913B of the amended Corporations Act that covers
some only (the relevant part) of their regulated activities; or
(b) the regulated principal starts to
be covered by an exemption under subsection 911A(2) of the amended Corporations
Act in respect of some only (the relevant part) of their
regulated activities;
the relevant new legislation starts applying, from that
time, to the relevant part of the regulated principal’s regulated activities,
and subsection (1) continues to apply to the person as if the regulated
principal’s regulated activities did not include the relevant part.
(4) Subsection (3) has effect subject to
subsection 1430(3).
1432
Continued application of relevant old legislation
(1) Subject to subsection (2), during
the transition period for a regulated principal, the relevant old legislation
(if any) continues to apply, despite its repeal:
(a) to, and in relation to, the
regulated principal and their regulated activities; and
(b) to any other person to whom it is
expressed to apply, but only in relation to matters related to the regulated
principal and their regulated activities.
Note: So, for example, people may continue to be
appointed as agents or representatives of the regulated principal (or to have
those appointments varied or revoked) during the transition period under
provisions of the relevant old legislation that deal with such matters.
(2) If, because of subsection 1431(2), the
relevant new legislation (within the meaning of subsection 1431(1)) starts to
apply to part of a person’s regulated activities from a particular time, the
relevant old legislation (if any) stops applying, from that time, in relation
to that part of those activities.
1433
Streamlined licensing procedure for certain regulated principals
(1) This section applies to the following
regulated principals:
(a) a regulated principal of a kind
referred to in any of items 1 to 5 of the table in subsection 1430(1), but
not including anyone who is:
(i) an exempted
participant for the purposes of section 1419; or
(ii) in a class of persons
specified in, or identified in accordance with, regulations made for the
purposes of subsection (3);
(b) a regulated principal of a kind
referred to in item 9 of that table who:
(i) is in a class of
persons specified in regulations made for the purposes of this subparagraph;
and
(ii) is not in a class of
persons specified in, or identified in accordance with, regulations made for
the purposes of subsection (3).
(2) If:
(a) a regulated principal to whom this
section applies, before the end of their transition period, applies (in
accordance with section 913A of the amended Corporations Act) for a
licence covering some or all of their regulated activities (but no other
activities); and
(b) their application includes a
statement (in accordance with the requirements of the application form) to the
effect that they will, if granted the licence, comply with their obligations as
a financial services licensee;
the following provisions apply:
(c) section 913B of the amended
Corporations Act applies to their application as if paragraphs 913B(1)(b), (c),
(ca) and (d), and subsections 913B(2) to (5), were omitted; and
(d) the licence condition required by
subsection 914A(6) of the amended Corporations Act in relation to a licence
granted pursuant to their application must specify, as the financial services
that the licensee is authorised to provide, financial services that equate (as closely
as possible) to the regulated activities in respect of which the application
was made.
Note 1: Paragraph (c) does not limit the matters
that can be taken into account under section 915C (suspension or
cancellation after offering a hearing) in relation to a licence that has been
granted under section 913B as it applies because of this section.
Note 2: The condition referred to in paragraph (d),
as with any other conditions imposed on the licence under section 914A of
the amended Corporations Act, is subject to variation or revocation in
accordance with that section.
(3) The regulations may identify classes of
persons, or provide for the identification of classes of persons, who are not
to be covered by this section.
1434
Special licences for insurance multi‑agents during first 2 years after
FSR commencement
(1) For the purposes of this section, a
person is an insurance multi‑agent at a particular time if,
at that time:
(a) the person is an insurance
intermediary (but not an insurance broker), within the meaning of the Insurance
(Agents and Brokers) Act 1984 as then in force; and
(b) the person has agreements with 2
or more different insurers under section 10 of that Act.
(2) If:
(a) a person who, immediately before
the FSR commencement, is an insurance multi‑agent applies in accordance
with section 913A of the amended Corporations Act for a licence, during
the period of 2 years starting on the FSR commencement; and
(b) the application is lodged at a
time:
(i) when the person is
still carrying on activities as agent for one or more of the insurers with
whom, immediately before the FSR commencement, they had agreements as mentioned
in paragraph (1)(b); or
(ii) that is not more than
6 months after the person ceased to so carry on activities as agent for any of
those insurers; and
(c) their application includes a
statement (in accordance with the requirements of the application form) to the
effect that they want this section to apply to their application;
the following provisions apply:
(d) section 913B of the amended
Corporations Act applies to their application as if the reference in paragraph
913B(1)(b) to section 912A did not include the obligations under
paragraphs 912A(e) and (f);
(e) the licence condition required by
subsection 914A(6) of the amended Corporations Act in relation to a licence
granted pursuant to their application must specify, as the financial services
that the licensee is authorised to provide:
(i) providing financial
product advice in relation to risk insurance products and investment life
insurance products; and
(ii) dealing in risk
insurance products and investment life insurance products.
(3) If the application is granted, then:
(a) while the licence remains in
force:
(i) paragraphs 912A(e) and
(f) of the amended Corporations Act do not apply to the licensee and the
financial services covered by the licence; and
(ii) sections 942B and
942C apply in relation to any Financial Services Guide provided by the licensee
or an authorised representative of the licensee as if they included a
requirement to include in the Guide a statement that the licensee is not bound
by the obligations in paragraphs 912A(e) and (f) and that sets out what those
obligations are; and
(b) the licence conditions cannot be
varied so that the licence covers the licensee providing financial services
other than those referred to in paragraph (2)(e); and
(c) the licence ceases to be in force
(unless earlier revoked) at the end of the period of 2 years starting on the
FSR commencement.
1435
Licensing decisions made within the first 2 years of the FSR
commencement—regard may be had to conduct and experience of applicant or
related body corporate that currently provides same or similar services
(1) This
section applies:
(a) if a person applies, during the
period of 2 years starting on the FSR commencement, under section 913A of
the amended Corporations Act for the grant of a licence covering the provision
of particular financial services (the relevant financial services);
and
(b) ASIC is aware that:
(i) the applicant; or
(ii) if the applicant is a
body corporate—a related body corporate of the applicant;
is currently (as at the time the
application is being considered by ASIC) providing services that are the same
as, or similar to, all or any of the relevant financial services.
(2) In considering the matters it is required
by section 913B of the amended Corporations Act to consider in deciding
whether to grant the licence, ASIC may (but is not required to) have regard to
the conduct and experience (including conduct and experience before the FSR
commencement) of the applicant, or the related body corporate, in providing
services that are the same as, or similar to, all or any of the relevant
financial services (so far as ASIC is aware of such conduct and experience).
(3) Subsection (2) is not intended to
limit, by implication, the matters that ASIC can take into account under
section 913B of the amended Corporations Act when considering whether to
grant a licence under that section (whether pursuant to an application to which
this section applies or otherwise).
1436
Treatment of representatives—general
(1) This section applies to a person who is a
representative of a regulated principal. For this purpose, a representative
includes, but is not limited to:
(a) an agent (however described) of
the regulated principal; and
(b) an employee or director of the
regulated principal; and
(c) any other person who, in
accordance with the regulated principal’s relevant old legislation as it
continues to have effect in relation to the regulated principal, is authorised
to carry on activities for or on behalf of the regulated principal.
(1A) However, if a person who, under subsection (1),
would be the representative of another person is a financial services licensee
in their own right, the licensee, when engaged in activities covered by their
licence, is taken not to be acting as representative of that other person.
(2) The following provisions apply in
relation to a person who is a representative of a regulated principal:
(a) during any period when, because of
section 1431, the relevant new legislation (within the meaning of
subsection 1431(1)) does not apply to the regulated principal and particular
regulated activities, the relevant new legislation also does not apply to the
representative when they are acting as a representative of the regulated
principal in relation to any of those activities;
(b) during any period when, because of
section 1432, relevant old legislation continues to apply to the regulated
principal and particular regulated activities, that legislation also continues
to apply to the representative when they are acting as a representative of the
regulated principal in relation to any of those activities.
Note 1: If a person is a representative of 2 persons,
this may result in the person having to comply with the relevant new
legislation in respect of what they do as a representative of one of those
persons but, at the same time, having to comply with relevant old legislation
in respect of what they do as a representative of the other of those persons.
Note 2: If a person is a representative of another
person who carries on 2 different sets of activities, being sets of activities
in relation to which there are separate applications of this Subdivision
because of subsection 1430(3), this may result in the person having to comply
with the relevant new legislation in respect of what they do in relation to one
of those sets of activities but, at the same time, having to comply with
relevant old legislation in respect of what they do in relation to the other
set of activities.
Note 3: Because of section 1441, a representative
who is not required to comply with the relevant new legislation may nonetheless
be required to comply with obligations under Part 7.9 of the amended
Corporations Act.
1436A
Treatment of representatives—insurance agents
(1) This section has effect despite anything
else in this Subdivision, including sections 1436 and 1437.
(2) This section applies if, immediately
before the FSR commencement, a person is an insurance intermediary (but not an
insurance broker) within the meaning of the Insurance (Agents and Brokers)
Act 1984 as then in force because of an agreement they have with an insurer
under section 10 of that Act. For the purposes of this section:
(a) the person is the insurance
agent; and
(b) the agreement is the authorising
agreement; and
(c) the matters dealt with in the
provisions included in the agreement in compliance with section 10 of that
Act, and any other matters included in the agreement that are related to those
matters, are the relevant matters; and
(d) the insurer is the principal.
If, immediately before the FSR commencement, the person
has more than one such agreement, this section applies separately in relation to
each of those agreements.
(3) For the purposes of this section, the transition
period is the period starting on the FSR commencement and ending when
the first of the following events occurs:
(a) the period of 2 years starting on
the FSR commencement ends;
(b) the authorising agreement ceases
to be in force;
(c) the insurance agent has lodged
with ASIC notice in writing that the agent no longer wants to be covered by the
Insurance (Agents and Brokers) Act 1984:
(i) from a specified date,
being a date that is after the notice is given to ASIC; or
(ii) from the end of a
specified period, being a period that ends after the notice is given to ASIC;
and that date arrives or period
ends;
(d) the insurance agent is granted a
licence under section 913B (including as it has effect because of section 1434)
of the amended Corporations Act that covers the insurance agent engaging in (as
licensee) the range of activities that they previously engaged in as agent
under the authorising agreement.
(4) A notice (the original notice)
given for the purposes of paragraph (3)(c) may before the date, or the end
of the period, specified in the original notice as mentioned in that paragraph:
(a) be varied to specify another date
or period, being a date or period that would satisfy the requirements of subparagraph (3)(c)(i)
or (ii) if the reference in that subparagraph to when the notice (being the
original notice) is given to ASIC were instead a reference to when the notice
of variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in
writing lodged with ASIC.
(5) Subject to subsection (7), during
the transition period, the Insurance (Agents and Brokers) Act 1984 as in
force immediately before the FSR commencement, and any associated provisions,
(the relevant old legislation) continue to apply (despite the
repeal of that Act) to, and in relation to, the insurance agent, the principal
and the relevant matters.
(6) Subject to subsection (7), during
the transition period, the relevant new legislation (within the meaning of
section 1431) does not apply to, or in relation to, the insurance agent,
the principal and the relevant matters.
(7) Regulations made for the purposes of this
subsection may do either or both of the following:
(a) provide that specified provisions
of the relevant old legislation apply (with or without specified
modifications), or do not apply, to the insurance agent, the principal and some
or all of the relevant matters;
(b) provide that specified provisions
of the relevant new legislation apply (with or without specified
modifications), or do not apply, to the insurance agent, the principal and some
or all of the relevant matters.
The regulations may provide as mentioned in paragraph (a)
or (b) even after the end of the transition period.
(8) If:
(a) before the end of the transition
period, or such longer period during which regulations made for the purposes of
subsection (7) provide for the application of some or all of the relevant
old legislation, the insurance agent engages in conduct that, under the
authorising agreement as then in force, creates a right to brokerage,
commission or other remuneration (which may be a present right, or a future
right that is dependent on matters specified in the authorising agreement); and
(b) that right is still in existence
immediately before the end of that period;
the right is not taken to be brought to an end merely
because of the repeal of the relevant old legislation or the enactment of the
relevant new legislation, or because under this section the relevant old
legislation ceases to apply and the relevant new legislation starts to apply.
(9) Subsection (8) is not intended to
affect, in any way, the determination of the question whether any other right
(whether or not it is under an agreement under section 10 of the Insurance
(Agents and Brokers) Act 1984) is in any way affected by the provisions of
the Financial Services Reform Act 2001 or the Financial Services
Reform (Consequential Provisions) Act 2001 (including the amendments made
by those Acts).
1437
Exemptions and modifications by ASIC
(1) This section applies to the following
provisions:
(a) the provisions of this Subdivision
(other than section 1436A) and any associated provisions;
(b) the provisions of legislation that
continues to apply because of subsection 1432(1) or 1436(3).
(2) ASIC may:
(a) exempt a person or a class of
persons from some or all of the provisions to which this section applies; or
(b) declare that some or all of the
provisions to which this section applies apply in relation to a person or a
class of persons as if the provisions were modified or varied as specified in
the declaration.
(3) A declaration under paragraph (2)(b)
may provide for the continued application (with or without modifications, and
to the exclusion of provisions of the amended Corporations Act) of provisions
referred to in paragraph (1)(b), even after the end of the period of 2
years starting on the FSR commencement.
(4) An exemption may apply unconditionally or
subject to specified conditions. A person to whom a condition specified in an
exemption applies must comply with the condition. The Court may order the
person to comply with the condition in a specified way. Only ASIC may apply to
the Court for the order.
(5) An exemption or declaration must be in
writing and ASIC must publish notice of it in the Gazette.
(6) If conduct (including an omission) of a
person would not constitute an offence if a particular declaration under paragraph (2)(b)
had not been made, that conduct does not constitute an offence unless, before
the conduct occurred (in addition to complying with the gazettal requirement of
subsection (5)):
(a) the text of the declaration was
made available by ASIC on the Internet; or
(b) ASIC gave written notice setting
out the text of the declaration to the person.
In a prosecution for an offence to which this subsection
applies, the prosecution must prove that paragraph (a) or (b) was complied
with before the conduct occurred.
Subdivision E—Product disclosure requirements
1438
New product disclosure provisions do not apply to existing products during
transition period
(1) This section applies to all financial
products issued by a person, other than financial products in a class of products
that are first issued by the person after the FSR commencement.
(2) For the purposes of this section, the new
product disclosure provisions in relation to a financial product to
which this section applies are the provisions of Part 7.9 of the amended
Corporations Act that, apart from this section, would apply in relation to the
financial product (whether those provisions apply to the issuer of the product
or to another person or persons), other than the following provisions:
(a) section 1017C (information
for existing holders of superannuation products and RSA products);
(b) section 1017DA (trustees of
superannuation entities—regulations may specify additional obligations to
provide information), and regulations made for the purposes of that section;
(c) section 1017E (dealing with
money received for financial product before the product is issued);
(d) section 1017F (confirming
transactions);
(e) sections 1019A and 1019B
(cooling‑off period for return of financial product);
(ea) Division 5A (unsolicited
offers to purchase financial products off‑market);
(f) sections 1020B and 1020C
(short selling of securities, managed investment products and certain other
financial products);
(g) section 1020D (Part cannot be
contracted out of).
(3) Subject to subsection (4), the new
product disclosure provisions do not apply in relation to a financial product
to which this section applies during the period (the transition period)
starting on the FSR commencement and ending on whichever of the following first
occurs:
(a) the end of the period of 2 years
starting on the FSR commencement;
(b) the date specified in a notice
lodged with ASIC by the issuer of the product that relates to the product, or a
class of financial products that includes the product, and that satisfies the
following requirements:
(i) the notice must
indicate that the issuer of the product wants the new product disclosure
provisions to apply in relation to the product from a date specified in the
notice;
(ii) the date specified in
the notice is the FSR commencement or a later date;
(iii) the date specified in
the notice is at least 28 days after the notice is lodged with ASIC.
Note 1: A notice under paragraph (b) may be lodged
during the period between the commencement of this section and the FSR
commencement, or it may be lodged after the FSR commencement.
Note 2: Subject to Division 2, the provisions
covered by paragraphs (2)(a) to (f) apply from the FSR commencement in
relation to all financial products to which they purport to apply.
(4) If the date specified in a notice lodged
with ASIC in accordance with paragraph (3)(b) is the FSR commencement,
there is no transition period in relation to the financial product or products
to which the notice relates.
(5) A notice (the first notice)
lodged with ASIC in accordance with paragraph (3)(b):
(a) may, by a further notice lodged
with ASIC, be varied to specify a different date (the new date),
but only if:
(i) that further notice is
lodged with ASIC at least 28 days before the date specified in the first
notice; and
(ii) the new date is at
least 28 days after that further notice is lodged with ASIC; and
(b) may, by a further notice lodged
with ASIC, be revoked, but only if that further notice is lodged with ASIC at
least 28 days before the date specified in the first notice.
A date that was specified in a notice before its variation
or revocation in accordance with this subsection is to be disregarded for the
purposes of the other provisions of this section.
(6) If the issuer of a financial product
lodges a notice with ASIC in accordance with paragraph (3)(b) that covers
the product, the issuer must comply with any applicable requirements determined,
by legislative instrument, by ASIC for the purposes of this subsection in
relation to the following matters:
(a) informing people about the notice
and its significance; and
(b) informing people about any
subsequent variation or revocation of the notice.
Note: Failure to comply with this subsection is an
offence (see subsection 1311(1)).
(7) A determination by ASIC for the purposes
of subsection (6):
(b) may cover all financial products
or one or more classes of financial products; and
(c) may make different provision in
relation to different classes of financial products.
(8) Subject to the regulations, ASIC must
take reasonable steps to ensure that, during the period of 2 years starting on
the FSR commencement, information is available:
(a) on the Internet; and
(b) at offices of ASIC;
about notices that have been lodged in accordance with paragraph (3)(b).
The information must be updated to take account of variations and revocations
of such notices.
1439
Offences against new product disclosure provisions—additional element for
prosecution to prove if conduct occurs after opting‑in and before the end
of the first 2 years
(1) If:
(a) conduct in relation to a financial
product that would (apart from this section) constitute an offence against, or
based on, any of the new product disclosure provisions occurred at a time:
(i) during the period of 2
years starting on the FSR commencement; and
(ii) after the date
specified in a notice lodged in relation to the product in accordance with
paragraph 1438(3)(b); and
(b) the new product disclosure
provisions started to apply in relation to the product from the date specified
in the notice;
the conduct constitutes an offence against that provision
only if (in addition to the other elements of the offence), either:
(c) the person knew that, or was
reckless as to whether, the product issuer had lodged a notice under that
paragraph that specified that date; or
(d) the person did not know that, and
was not reckless as to whether, the product issuer had lodged a notice under
that paragraph that specified that date, but the conduct would have contravened
the provisions referred to in section 1440 that would have applied to and
in relation to the product if those provisions had still applied when the
conduct occurred.
(2) In this section:
conduct means an act, an omission to perform
an act or a state of affairs.
1440
Continued application of certain provisions of old disclosure regimes during
transition period
During the transition period (if any)
for a financial product, the following provisions continue to apply, despite
their repeal or amendment, to and in relation to the financial product:
(a) if the product is a managed
investment product—all the provisions of Chapter 6D of the old
Corporations Act, other than section 722 of that Act, and any associated
provisions;
(b) if the product is a derivative—section 1210
of the old Corporations Act, and any associated provisions;
(c) if the product is a superannuation
product—the following provisions, and any associated provisions:
(i) section 153, and
all the provisions of Divisions 3 and 4 of Part 19, of the Superannuation
Industry (Supervision) Act 1993 as in force immediately before the FSR
commencement;
(ii) the section 153A
of that Act that was provided for in Modification Declaration no. 15 as in
force immediately before the FSR commencement, being a declaration of
modification made under section 332 of that Act;
(d) if the product is an RSA
product—section 51, and all the provisions of Divisions 4 and 5 of
Part 5, of the Retirement Savings Accounts Act 1997 as in force
immediately before the FSR commencement, and any associated provisions;
(e) if the product is an insurance
product—sections 71A and 73 of the Insurance Contracts Act 1984 as
in force immediately before the FSR commencement, and any associated
provisions.
1441
Certain persons who are not yet covered by Parts 7.6, 7.7 and 7.8 of the
amended Corporations Act are required to comply with Part 7.9 obligations
as if they were regulated persons
From the time from which the new product
disclosure provisions start to apply in relation to a particular financial
product, the following persons must comply with those provisions in relation to
that product, as if they were regulated persons as defined in section 1011B
of the amended Corporations Act, even though they are not yet subject, or fully
subject, to Parts 7.6, 7.7 and 7.8 of that Act:
(a) a regulated principal;
(b) a representative (as defined in
section 1436) of a regulated principal; or
(c) an insurance agent (as defined in
section 1436A).
1442
Exemptions and modifications by ASIC
(1) This section applies to the following
provisions:
(a) the provisions of this Subdivision
and any associated provisions;
(b) the provisions that continue to
apply because of section 1440.
(2) ASIC may:
(a) exempt a person or a class of
persons, or a financial product or class of financial products, from some or
all of the provisions to which this section applies; or
(b) declare that some or all of the
provisions to which this section applies apply in relation to a person or a
class of persons, or a financial product or class of financial products, as if
the provisions were modified or varied as specified in the declaration.
(3) A declaration under paragraph (2)(b)
may provide for the continued application (with or without modifications, and
to the exclusion of provisions of the amended Corporations Act) of provisions
referred to in paragraph (1)(b), even after the end of the period of 2
years starting on the FSR commencement.
(4) An exemption may apply unconditionally or
subject to specified conditions. A person to whom a condition specified in an
exemption applies must comply with the condition. The Court may order the
person to comply with the condition in a specified way. Only ASIC may apply to
the Court for the order.
(5) An exemption or declaration must be in
writing and ASIC must publish notice of it in the Gazette.
(6) If conduct (including an omission) of a
person would not constitute an offence if a particular declaration under paragraph (2)(b)
had not been made, that conduct does not constitute an offence unless, before
the conduct occurred (in addition to complying with the gazettal requirement of
subsection (5)):
(a) the text of the declaration was
made available by ASIC on the Internet; or
(b) ASIC gave written notice setting
out the text of the declaration to the person.
In a prosecution for an offence to which this subsection
applies, the prosecution must prove that paragraph (a) or (b) was complied
with before the conduct occurred.
Subdivision F—Certain other product‑related requirements
1442A
Deferred application of hawking prohibition
(1) For the purposes of this section, the transition
period is the period starting on the FSR commencement and ending on
whichever of the following first occurs:
(a) the day fixed by Proclamation for the
purposes of this paragraph;
(b) the end of the period of 6 months
starting on the FSR commencement.
(2) Regulations made for the purposes of this
section may provide for specified provisions of legislation that is repealed by
the Financial Services Reform Act 2001 or the Financial Services
Reform (Consequential Provisions) Act 2001, being provisions that deal with
the same or a similar matter as that dealt with in section 992A of the
amended Corporations Act, to continue to apply (whether with or without
specified modifications) during the transition period.
(3) During the transition period, section 992A
of the amended Corporations Act does not apply to any person, except to the
extent (if any) provided for in regulations made for the purposes of this
section.
1442B
Deferred application of confirmation of transaction and cooling‑off
provisions etc.
(1) This section applies to all financial
products issued by a person, other than financial products in a class of
products that are first issued by the person after the FSR commencement.
(2) For the purposes of this section, the transition
period, in relation to a financial product to which this section
applies, is the period starting on the FSR commencement and ending on whichever
of the following first occurs:
(a) the day fixed by Proclamation for
the purposes of this paragraph;
(b) the end of the period of 6 months
starting on the FSR commencement;
(c) the new product disclosure
provisions (within the meaning of section 1438) start to apply in relation
to the product.
(3) Subject to subsection (5), the
following provisions (the preserved provisions), to the extent
they are relevant to a financial product to which this section applies,
continue to apply, despite their repeal, in relation to the financial product
during the transition period:
(a) Division 6 of Part 19 of
the Superannuation Industry (Supervision) Act 1993, and any associated
provisions;
(b) Division 7 of Part 5 of
the Retirement Savings Accounts Act 1997, and any associated provisions;
(c) sections 64 and 64A of the Insurance
Contracts Act 1984, and any associated provisions;
(d) any other provisions specified in
regulations made for the purposes of this paragraph, and any associated
provisions in relation to provisions so specified.
(4) Subject to subsection (5), during
the transition period, the following provisions (the deferred provisions)
of the amended Corporations Act do not apply in relation to a financial product
to which this section applies:
(a) section 1017F;
(b) sections 1019A and 1019B;
(c) any other provisions of Part 7.9
of the amended Corporations Act that are not part of the new product disclosure
provisions (within the meaning of section 1438) and that are specified in
regulations made for the purposes of this paragraph.
(5) Regulations made for the purposes of this
subsection may do either or both of the following:
(a) provide that specified provisions
of the preserved provisions apply (with or without specified modifications), or
do not apply, in relation to a financial product to which this section applies;
(b) provide that specified provisions
of the deferred provisions apply (with or without specified modifications), or
do not apply, in relation to a financial product to which this section applies.
The regulations may provide as mentioned in paragraph (a)
or (b) even after the end of the transition period.
Division 2—Other transitional provisions
1443
Definitions
(1) In this Division:
amended Corporations Act has the same meaning
as in Division 1.
class, in relation to financial products, has
a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement has the same meaning as in
Division 1.
law of the Commonwealth includes a reference
to an instrument made under such a law.
new legislation means relevant legislation as
in force after the FSR commencement.
old legislation means relevant legislation as
in force immediately before the FSR commencement.
relevant amendments means the amendments made
by:
(a) the Financial Services Reform
Act 2001; and
(b) the Financial Services Reform
(Consequential Provisions) Act 2001.
relevant legislation means the following
legislation:
(a) this Act;
(b) the Acts that are amended by the
relevant amendments;
(c) regulations or other instruments
made under Acts covered by paragraph (a) or (b);
(d) any other law of the Commonwealth,
or instrument made under a law of the Commonwealth, identified in regulations
made for the purposes of this paragraph.
(2) The regulations may include provisions identifying,
or providing for the identification of, what constitutes a class of
financial products for the purposes of a provision or provisions of this
Division.
1444
Regulations may deal with transitional, saving or application matters
(1) The regulations may deal with matters of
a transitional, saving or application nature relating to the relevant
amendments and the transition from the application of the old legislation to
the application of the new legislation. Regulations made for this purpose may make
such provision as is necessary to take account of the fact that, because of
Division 1, different provisions of the amended Corporations Act start
applying (and different provisions of the old legislation stop applying) in
relation to different people, things and matters at different times.
(2) Regulations made for the purposes of this
section are of no effect to the extent that they are inconsistent with:
(a) a provision of Division 1; or
(b) a regulation or determination made
under a provision of Division 1, other than any such regulation or
determination (the other instrument) that is expressed to have
effect subject to anything in regulations made for the purposes of this section
(in which case, the other instrument is of no effect, to the extent of the
inconsistency).
(3) Without limiting subsection (1), the
regulations may provide for a matter to be dealt with, wholly or partly, in any
of the following ways:
(a) by applying (with or without
modifications) to the matter:
(i) provisions of a law of
the Commonwealth; or
(ii) provisions of a
repealed or amended law of the Commonwealth, in the form that those provisions
took before the repeal or amendment; or
(iii) a combination of
provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for
dealing with the matter;
(c) by specifying a particular
consequence of the matter, or of an outcome of the matter, for the purposes of
a law of the Commonwealth.
(4) Without limiting subsections (1) and
(3), the regulations may provide for the continued effect after the FSR
commencement, for the purposes of the new legislation, of a thing done or
instrument made, or a class of things done or instruments made, before the FSR
commencement, under or for the purposes of the old legislation. In the case of
an instrument, or class of instruments, the regulations may (either when
providing for the continued effect of the instrument or instruments or at a
later time) provide for the instrument or instruments, as continuing to have
effect, to have effect subject to modifications.
(5) Without limiting subsection (4),
regulations made for the purposes of that subsection may permit all or any of
the following matters to be determined in writing by a specified person, or by
a person included in a specified class of persons:
(a) the identification of a thing done
or instrument made, or a class of things done or instruments made, that is to
continue to have effect;
(b) the purpose for which a thing done
or instrument made, or a class of things done or instruments made, is to
continue to have effect;
(c) any modifications subject to which
an instrument made, or a class of instruments made, is to continue to have
effect.
(6) Despite subsections 12(2) and (3) of the Legislative
Instruments Act 2003, regulations made for the purposes of this section:
(a) may be expressed to take effect
from a date before the regulations are registered under that Act; and
(b) may provide for a determination of
a kind referred to in subsection (5) to take effect from a date before the
determination is made (including a date before the regulations are registered
under that Act).
(7) If a relevant amendment does not commence
on the FSR commencement, this section applies in relation to that amendment as
if references in the other provisions of this section, and in the definitions
in section 1443, to “the FSR commencement” were instead references to the
commencement of the relevant amendment.
(8) In this section:
matters of a transitional, saving or application
nature includes, but is not limited to, matters related to any of the
following:
(a) how a matter that arose or existed
under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes
of the new legislation of a matter that arose or existed under the old
legislation;
(c) how a process started but not
completed under the old legislation is to be dealt with;
(d) the preservation of concessions or
exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters
in terms of the new legislation so as to include references to matters in terms
of the old legislation (including that legislation as it continues to have
effect because of provisions of Division 1), and vice versa;
(f) any other matters that are
prescribed by regulations made for the purposes of this paragraph.
1445
ASIC determinations may deal with transitional, saving or application matters
(1) ASIC may, by legislative instrument, make
a determination dealing with matters of a transitional, saving or application
nature relating to the relevant amendments and the transition from the
application of the old legislation to the application of the new legislation.
Determinations for this purpose may make such provision as is necessary to take
account of the fact that, because of Division 1, different provisions of
the amended Corporations Act start applying (and different provisions of the
old legislation stop applying) in relation to different people, things and
matters at different times.
(2) A determination overrides any
inconsistent regulations made for the purposes of section 1444, other than
any such regulations that are expressed to have effect despite anything in a
determination under this section (in which case, the determination is of no
effect, to the extent of the inconsistency).
(3) A determination is of no effect to the
extent that it is inconsistent with:
(a) a provision of Division 1; or
(b) a regulation or determination made
under a provision of Division 1, other than any such regulation or
determination (the other instrument) that is expressed to have
effect subject to anything in a determination under this section (in which
case, the other instrument is of no effect, to the extent of the inconsistency).
(4) Without limiting subsection (1), a
determination may provide for a matter to be dealt with, wholly or partly, in
any of the following ways:
(a) by applying (with or without
modifications) to the matter:
(i) provisions of a law of
the Commonwealth; or
(ii) provisions of a
repealed or amended law of the Commonwealth, in the form that those provisions
took before the repeal or amendment; or
(iii) a combination of
provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for
dealing with the matter;
(c) by specifying a particular
consequence of the matter, or of an outcome of the matter, for the purposes of
a law of the Commonwealth.
(5) Without limiting subsections (1) and
(4), a determination may provide for the continued effect after the FSR
commencement, for the purposes of the new legislation, of a thing done or
instrument made, or a class of things done or instruments made, before the FSR
commencement, under or for the purposes of the old legislation. In the case of
an instrument, or class of instruments, a determination may (either when
providing for the continued effect of the instrument or instruments or at a
later time) provide for the instrument or instruments, as continuing to have
effect, to have effect subject to modifications.
(6) Without limiting subsection (5), a
determination for the purposes of that subsection may permit all or any of the
following matters to be determined in writing by a specified person, or by a
person included in a specified class of persons:
(a) the identification of a thing done
or instrument made, or a class of things done or instruments made, that is to
continue to have effect;
(b) the purpose for which a thing done
or instrument made, or a class of things done or instruments made, is to
continue to have effect;
(c) any modifications subject to which
an instrument made, or a class of instruments made, is to continue to have
effect.
(7) If a relevant amendment does not commence
on the FSR commencement, this section applies in relation to that amendment as
if references in the other provisions of this section, and in the definitions
in section 1443, to “the FSR commencement” were instead references to the
commencement of the relevant amendment.
(8) In this section:
matters of a transitional, saving or application
nature includes, but is not limited to, matters related to any of the
following:
(a) how a matter that arose or existed
under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes
of the new legislation of a matter that arose or existed under the old
legislation;
(c) how a process started but not
completed under the old legislation is to be dealt with;
(d) the preservation of concessions or
exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters
in terms of the new legislation so as to include references to matters in terms
of the old legislation (including that legislation as it continues to have
effect because of provisions of Division 1), and vice versa;
(f) any other matters that are
prescribed by regulations made for the purposes of this paragraph.
Part 10.3—Transitional provisions relating to the Corporations
Legislation Amendment Act 2003
1446
Application of subparagraph 262(1)(g)(iii)
The amendment made by item 8 of
Schedule 5 to the Corporations Legislation Amendment Act 2003
applies only to charges created after the commencement of that item.
1447
Application of sections 601AB and 601PB
If a company or responsible entity had
an obligation to lodge an annual return before the commencement of items 31
and 36 of Schedule 1 to the Corporations Legislation Amendment Act 2003,
sections 601AB and 601PB continue to apply to the annual return, as if the
amendments made by those items had not been made.
1448
Application of amendments made by Schedule 4 to the Corporations
Legislation Amendment Act 2003
If, at the time the amendments made by
Schedule 4 to the Corporations Legislation Amendment Act 2003
commence:
(a) a company is required to lodge a
notice under a provision amended by Schedule 4; and
(b) the time within which the company
must lodge the notice has not expired;
the amendments made by Schedule 4 apply to the
company’s requirement to lodge the notice.
Part 10.4—Transitional provisions relating to the Financial Services
Reform Amendment Act 2003
1449
Definition
In this Part:
amending Act means the Financial Services
Reform Amendment Act 2003.
1450
Application of Part 10.2 to Chapter 7 as amended by Schedule 2
to the amending Act
(1) Subject to subsection (2), the
provisions of Division 1 of Part 10.2 (including regulations and
determinations made for the purposes of that Division, and the powers given by
that Division to deal with matters in regulations and determinations) also
apply to the provisions of Chapter 7 as amended by Schedule 2 to the
amending Act.
Note: Division 1 of Part 10.2 deals with
the phasing‑in of the new financial services regime.
(2) However, subsection (1) does not
produce the result that a provision of Chapter 7 as amended, added or
inserted by an amendment in Schedule 2 to the amending Act applies in
relation to a person, matter or circumstance:
(a) at a time that is before the
commencement of the amendment; or
(b) contrary to section 1451.
(3) The powers given by Division 2 of
Part 10.2 to deal with matters in regulations and determinations apply in
relation to the provisions of Chapter 7 as amended by Schedule 2 to
the amending Act as if the amendments in Schedule 2 to the amending
Act were relevant amendments for the purposes of that Division.
However (in addition to subsections 1444(2) and 1445(3)) such regulations and
determinations are of no effect to the extent that they are inconsistent with
section 1451.
1451
Provisions relating to the scope of the amendments of Chapter 7 made by
Schedule 2
Application of amendments of section 916F
(1) The amendments made by items 37, 38
and 39 of Schedule 2 to the amending Act do not apply to
authorisations made before the commencement of the amendment, unless the
relevant 10 day period for notification has not ended by the commencement of
the items.
(2) The amendment made by item 40 of
Schedule 2 to the amending Act applies to revocations made after the
commencement of the item.
Application of certain amendments of sections 952B
and 953A
(2A) The amendments made by items 53A and
58A of Schedule 2 to the amending Act apply in relation to the
giving of Financial Services Guides after the commencement of the items.
Application of amendments of section 981H
(3) The amendments made by items 62 and
63 of Schedule 2 to the amending Act apply, after the commencement
of those items, to money paid to a person before that commencement as mentioned
in subsection 981H(1), even if an agreement referred to in subsection 981H(2)
was in force in relation to the money immediately before that commencement.
Application of certain amendments of section 1016A
(3A) The amendments made by items 77A, 77B
and 78C of Schedule 2 to the amending Act apply in relation to
applications for financial products, and applications to become a standard
employer‑sponsor, whether made before or after the commencement of the
items.
Application of amendments of sections 1016B to
1016E
(3B) The amendments made by items 78D to
78T of Schedule 2 to the amending Act apply in relation to Product
Disclosure Statements whether prepared or given before or after the
commencement of the items.
Application of amendment of section 1017D
(4) The amendment made by item 88 of
Schedule 2 to the amending Act does not apply to statements prepared
before the commencement of the item.
Application of amendments of section 1017E
(5) The amendments made by items 89 and
90 of Schedule 2 to the amending Act apply, after the commencement
of those items, to money paid to a person before that commencement as mentioned
in subsection 1017E(1), even if an agreement referred to in subsection
1017E(2B) was in force in relation to the money immediately before that
commencement.
Application of amendments of section 1020E
(6) The amendment made by item 91 of
Schedule 2 to the amending Act does not apply to disclosure documents or
statements prepared before the commencement of the item.
(7) The amendments made by items 91A,
91B and 91C of Schedule 2 to the amending Act apply to disclosure
documents or statements, and to advertisements or statements of a kind referred
to in subsection 1018A(1) or (2), whether prepared, given or published before
or after the commencement of the items.
Application of certain amendments of sections 1021B
and 1022A
(8) The amendments made by items 95F and
96K of Schedule 2 to the amending Act apply in relation to the
giving of Product Disclosure Statements after the commencement of the items.
1452
Amendments of section 1274
(1) The amendment made by item 101 of
Schedule 2 to the amending Act applies to documents even if they were
lodged before the commencement of the item.
(2) The amendment made by item 102 of
Schedule 2 to the amending Act removes a reference to a repealed
provision. However, the amendment does not produce the result that a document
that was lodged under that provision when it was in force now becomes available
for inspection under section 1274.
Part 10.5—Transitional provisions relating to the Corporate Law
Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004
1453
Definitions
In this Part:
amending Act means the Corporate Law
Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004.
old Act means this Act as in force
immediately before the commencement day.
Schedule 1 commencement means the day on
which Schedule 1 to the Corporate Law Economic Reform Program (Audit
Reform and Corporate Disclosure) Act 2004 commences.
Schedule 4 commencement means the day on
which Schedule 4 to the Corporate Law Economic Reform Program (Audit
Reform and Corporate Disclosure) Act 2004 commences.
Schedule 5 commencement means the day on
which Schedule 5 to the Corporate Law Economic Reform Program (Audit
Reform and Corporate Disclosure) Act 2004 commences.
Schedule 8 commencement means the day on
which Schedule 8 to the Corporate Law Economic Reform Program (Audit
Reform and Corporate Disclosure) Act 2004 commences.
1454
Audit reforms in Schedule 1 to the amending Act (auditing standards and
audit working papers retention rules)
Sections 307A, 307B and 989CA apply
to:
(a) an audit of the financial report
for a financial year; or
(b) an audit or review of the
financial report for a half‑year in a financial year;
if the financial year begins on or after 1 July 2004.
1455
Audit reforms in Schedule 1 to the amending Act (adoption of auditing
standards made by accounting profession before commencement)
(1) The regulations may provide that a
standard specified in the regulations (as in force from time to time) is to
have effect, for the purposes of this Act, as if it had been made by the AUASB
under section 336 on the day specified in the regulations.
(2) The standard must be one made or issued
by the Australian Accounting Research Foundation before the Schedule 1
commencement on behalf of CPA Australia and The Institute of Chartered
Accountants in Australia.
(3) The regulations may provide that the
standard is to have effect as if it specified that it applies to periods ending,
or starting, on or after a date specified in the standard.
(4) Standards prescribed under subsection (1)
do not have effect as auditing standards:
(a) in relation to financial reports
for periods ending after 30 June 2006; or
(b) in relation to financial reports
for periods ending after a later date specified by regulations made for the
purposes of subsection (1) before 30 June 2006.
(5) A person does not commit an offence based
on a contravention of section 307A, subsection 308(3A) or 309(5A) or section 989CA
because an audit or review is not conducted in accordance with, or does not
include a statement or disclosure required by, an auditing standard prescribed
under subsection (1) if the audit or review is conducted in relation to a
financial report for a period ending before that standard ceases to have effect
as an auditing standard.
Note: This subsection does not prevent, however,
other action being taken on the basis of the failure to comply with the
auditing standard (for example, the person’s failure to comply with the
standard being referred to the Companies Auditors and Liquidators Disciplinary
Board).
1456
Audit reforms in Schedule 1 to the amending Act (new competency standard
provisions)
If an application by a person for
registration as a registered company auditor:
(a) is lodged with ASIC before the
Schedule 1 commencement; and
(b) has not been determined before
that day;
section 1280 of the old Act continues to apply to the
application despite the amendments made by the amending Act.
1457
Audit reforms in Schedule 1 to the amending Act (new annual statement
requirements for auditors)
(1) The requirement under section 1287A
for a registered company auditor to lodge an annual statement applies from the
first anniversary of the auditor’s registration that occurs on or after 1 January 2005.
(2) The first annual statement lodged under
section 1287A should cover the period commencing either:
(a) immediately after the period
covered by the last triennial statement; or
(b) the day on which the auditor was
registered;
whichever is later, and ending on the first anniversary of
registration occurring on or after 1 January 2005.
1458
Audit reforms in Schedule 1 to the amending Act (imposition of conditions
on existing registration as company auditor)
ASIC may impose conditions on a person’s
registration as a company auditor under section 1289A even if the
registration took effect before the Schedule 1 commencement.
1459
Audit reforms in Schedule 1 to the amending Act (application of items 62
and 63)
The amendments made by items 62 and
63 of Schedule 1 to the amending Act apply to periods that start on or
after 1 January 2005.
1460
Audit reforms in Schedule 1 to the amending Act (non‑audit services
disclosure)
Subsections 300(11B) to (11E) apply to
an audit of the financial report for a financial year if the financial year
begins on or after 1 July 2004.
1461
Audit reforms in Schedule 1 to the amending Act (auditor appointment)
(1) Section 324AC applies to all
appointments of firms as auditor (including an appointment that was made before
the Schedule 1 commencement).
(2) The appointment of a person as auditor of
a company or registered scheme made before the Schedule 1 commencement
under section 327 or 331AB of the old Act remains valid and effective
despite the repeal of that section.
(3) An approval by ASIC that is in force
under subsection 324(12) of the old Act immediately before the Schedule 1
commencement has effect on and after the Schedule 1 commencement as if it
had been given under section 324B.
1462
Audit reforms in Schedule 1 to the amending Act (auditor independence)
(1) Section 307C applies to a financial
report for financial years that start on or after 1 July 2004.
(2) Division 3 of Part 2M.4 applies
to:
(a) an audit of the financial report
for a financial year; or
(b) an audit or review of the
financial report for a half‑year in a financial year;
if the financial year begins on or after 1 July 2004.
(2A) The following provisions of the old Act
continue to apply to an audit of the financial report for a financial year, or
an audit or review of the financial report for a half‑year in a financial
year, if the financial year begins before 1 July 2004:
(a) subsections 324(1) to (6)
(inclusive) (other than paragraphs 324(1)(d) and (2)(d) and (e));
(b) subsection 324(11);
(c) subsection 327(4);
(d) section 331AA (other than
paragraphs 331AA(1)(d) and (2)(d) and (e)).
Subsection 331AA(4) of the old Act continues to apply as
if the references in that subsection to subsections 324(7), (8), (9), (10) and
(16) were omitted.
(3) Division 3 of Part 2M.4 applies
to all relationships that exist on or after the Schedule 1 commencement
between an auditor and an audited body (including a relationship that exists
because of circumstances that came into existence before the Schedule 1
commencement).
(4) Without limiting subsection (3), the
items in the table in subsection 324CH(1) apply to circumstances that exist on
or after the Schedule 1 commencement (including circumstances that exist
because of events that occurred before the Schedule 1 commencement).
(5) Item 9 of the table in subsection
324CE(5) applies to a person who ceases to be a professional employee of the
individual auditor concerned on or after the Schedule 1 commencement.
(6) Item 10 of the table in subsection
324CE(5) applies to a person who ceases to own the business of the individual
auditor concerned on or after the Schedule 1 commencement.
(7) Item 11 of the table in subsection
324CF(5) applies to a person who ceases to be a member of the audit firm
concerned on or after the Schedule 1 commencement.
(8) Item 12 of the table in subsection
324CF(5) applies to a person who ceases to be a professional employee of the
auditor firm concerned on or after the Schedule 1 commencement.
(9) Item 11 of the table in subsection
324CG(9) applies to a person who ceases to be an officer of the audit company
concerned on or after the Schedule 1 commencement.
(10) Item 12 of the table in subsection
324CG(9) applies to a person who ceases to be a professional employee of the
audit company concerned on or after the Schedule 1 commencement.
(11) Section 324CI applies only if the
relevant departure time for the purposes of that section occurs on or after the
Schedule 1 commencement.
(12) Section 324CJ applies only if the
relevant departure time for the purposes of that section occurs on or after the
Schedule 1 commencement.
(13) Section 324CK applies to a person
only if:
(a) the person is on the Schedule 1
commencement, or becomes after the Schedule 1 commencement, a member of
the audit firm concerned or a director of the audit company concerned; and
(b) becomes an officer of the audited
body concerned on or after the Schedule 1 commencement.
1463
Audit reforms in Schedule 1 to the amending Act (auditor rotation)
Division 5 of Part 2M.4
applies to:
(a) an audit of the financial report
for a financial year; or
(b) an audit or review of the
financial report for a half‑year in a financial year;
if the financial year begins on or after 1 July 2006.
1464
Audit reforms in Schedule 1 to the amending Act (listed company AGMs)
The amendments made by Part 5 of
Schedule 1 to the amending Act apply to AGMs at which financial reports
for financial years that commence on or after 1 July 2004 are considered.
1465
Schedule 2 to the amending Act (financial reporting)
(1) The amendments made by Part 1 of
Schedule 2 to the amending Act apply to directors’ declarations in
relation to financial reports for financial years that start on or after 1 July 2004.
(2) The amendments made by Part 2 of
Schedule 2 to the amending Act apply to directors’ reports for financial
years that start on or after 1 July 2004.
(3) The amendments made by Part 3 of
Schedule 2 apply to financial reports lodged with ASIC on or after 1 January 2004.
1466A
Schedule 2A to the amending Act (true and fair view)
The amendments made by Schedule 2A
to the amending Act apply to directors’ reports for periods that start on or
after 1 July 2004.
1466
Schedule 3 to the amending Act (proportionate liability)
The amendments made to this Act and the Trade
Practices Act 1974 by Schedule 3 to the amending Act apply to causes
of action that arise on or after the day on which that Schedule commences.
1467
Schedule 4 to the amending Act (enforcement)
(1) The amendments made by Part 2 of
Schedule 4 apply to all disclosures made on or after the day on which this
Act receives the Royal Assent (including a disclosure of information about
circumstances that arose before that day).
(2) Section 206BA applies to
disqualifications from managing corporations that occur because of convictions
on or after the Schedule 4 commencement.
(3) The amendments made by Part 4 of
Schedule 4 to the amending Act apply in relation to a contravention of a financial
services civil penalty provision that occurs on or after the day on which this
Act receives the Royal Assent.
1468
Schedule 5 to the amending Act (remuneration of directors and executives)
(1) Subject to subsections (2) and (3),
the amendments made by Schedule 5 to the amending Act apply to financial
years commencing on or after 1 July 2004.
(2) The amendments made by items 4, 4A
and 5 of Schedule 5 to the amending Act apply to an agreement only if the
agreement is entered into on or after the Schedule 5 commencement.
(3) The amendments made by items 6, 7
and 8 of Schedule 5 to the amending Act apply to remuneration reports for
financial years that start on or after 1 July 2004.
1469
Schedule 6 to the amending Act (continuous disclosure)
(1) The amendments made by Part 1 of
Schedule 6 to the amending Act apply in relation to a contravention of
subsection 674(2) or 675(2) that occurs on or after the day on which this Act
receives the Royal Assent.
(2) The amendments made by Part 2 of
Schedule 6 to the amending Act apply in relation to a failure by a
disclosing entity to comply with subsection 674(2) or 675(2) that occurs on or
after the day on which this Act receives the Royal Assent.
1470
Schedule 7 to the amending Act (disclosure rules)
(1) The amendments made by Part 1 of
Schedule 7 to the amending Act apply to a disclosure document for
an offer of securities if the disclosure document is lodged with ASIC on or
after the day on which this Act receives the Royal Assent.
(2) The amendments made by Part 2 of
Schedule 7 to the amending Act apply to a Product Disclosure Statement
that is required to be given on or after the day on which this Act receives the
Royal Assent.
(3) The amendment made by items 10 and
11 of Schedule 7 to the amending Act applies to an offer of debentures
that is made on or after the day on which this Act receives the Royal Assent.
(4) Section 708A applies to an offer of
securities for sale that is made on or after the day on which this Act receives
the Royal Assent.
(5) Section 1012DA applies to:
(a) a recommendation situation if the
relevant conduct (within the meaning of subsection 1012A(2)); and
(b) a sale situation if the relevant
conduct (within the meaning of subsection 1012C(2));
occurs on or after the day on which this Act receives the
Royal Assent.
1471
Schedule 8 to the amending Act (shareholder participation and information)
(1) The amendments made by items 1 to 6,
13 and 17 of Schedule 8 to the amending Act apply to a notice of a meeting
of a company’s members that is given after 30 September 2004.
(2) The amendments made by items 7 to 12
and 14 of Schedule 8 to the amending Act apply to an appointment of a
proxy that is made on or after the Schedule 8 commencement.
(2A) The amendment made by item 14A of
Schedule 8 to the amending Act applies to reports for financial years that
start on or after 1 July 2004.
(3) The amendment made by item 15 of
Schedule 8 to the amending Act applies to a directors’ report for a
financial year that starts on or after 1 July 2004.
(4) The amendment made by item 16 of
Schedule 8 to the amending Act applies to a report referred to in
subsection 314(1) for a financial year that starts on or after 1 July 2004.
Part 10.8—Transitional provisions relating to the Corporations Amendment
(Takeovers) Act 2007
1478
Application of amendments of the takeovers provisions
(1) The amendments made by Schedule 1 to
the Corporations Amendment (Takeovers) Act 2007 apply in relation to an
application under section 657C (including any review under
section 657EA of the decision made on the application) if:
(a) the application under
section 657C is made on or after the commencement of that Schedule; or
(b) the application under
section 657C was made before the commencement of that Schedule but the
Panel has not finally disposed of the application before the commencement of
that Schedule.
For the purposes of paragraph (b), the Panel does not
finally dispose of an application under section 657C until the Panel has
disposed of any review under section 657EA of the decision made on the
application.
(2) To avoid doubt, the amendments apply in
relation to the application even if the circumstances to which the application
relates arose before the commencement of Schedule 1 to the Corporations
Amendment (Takeovers) Act 2007.
Part 10.9—Transitional provisions relating to the Corporations
Amendment (Insolvency) Act 2007
1479
Definition
In this Part:
amending Act means the Corporations
Amendment (Insolvency) Act 2007.
1480
Schedule 1 to the amending Act (improving outcomes for creditors)
(1) The amendment made by item 4 of
Schedule 1 to the amending Act, in so far as it relates to a company
subject to a deed of company arrangement, applies if the administration that
ended on the execution of the deed began on or after the day on which that item
commences.
(2) The amendments made by items 5 to 9
of Schedule 1 to the amending Act, in so far as they relate to the winding
up of a company, apply if the relevant date is on or after the day on which those
items commence.
(3) The amendments made by items 6 to 9
of Schedule 1 to the amending Act, in so far as they relate to a company
subject to a deed of company arrangement, apply if the administration that
ended on the execution of the deed began on or after the day on which those
items commence.
(4) The amendments made by items 6 to 9
of Schedule 1 to the amending Act, in so far as they relate to a company
to which section 433 applies, apply if the relevant date (within the
meaning of that section) is on or after the day on which those items commence.
(5) The amendment made by item 20 of
Schedule 1 to the amending Act applies in relation to a receiver appointed
on or after the day on which that item commences.
(6) The amendments made by items 21, 24,
25, 26 and 28 of Schedule 1 to the amending Act apply to the administrator
of a company if the administrator is appointed on or after the day on which
those items commence.
(7) The amendments made by items 30, 31,
32, 33, 35, 36, 37, 38, 39 and 40 of Schedule 1 to the amending Act apply
in relation to the liquidator of a company if the winding up of the company
begins on or after the day on which those items commence.
(8) The amendment made by item 52 of
Schedule 1 to the amending Act applies in relation to a compromise or
arrangement if an application relating to the compromise or arrangement was
made under subsection 411(1) on or after the day on which that item commences.
(9) The amendments made by items 53, 54,
55, 56 and 57 of Schedule 1 to the amending Act do not apply in relation
to an account opened before the day on which that item commences.
(10) The amendments made by items 59, 60,
61, 62 and 64 of Schedule 1 to the amending Act apply in relation to a
managing controller of property of a corporation if:
(a) the managing controller is
appointed on or after the day on which those items commence; or
(b) the managing controller enters
into possession, or takes control, of property of the corporation on or after
the day on which those items commence.
(11) Despite the amendments made by
items 65 and 66 of Schedule 1 to the amending Act:
(a) subsection 427(1) continues to
apply, in relation to an order obtained, or an appointment made, before the day
on which those items commence, as if those amendments had not been made; and
(b) subsection 427(1A) continues to
apply, in relation to an appointment made before the day on which those items
commence, as if those amendments had not been made; and
(c) subsection 427(1B) continues to
apply, in relation to an entry into possession, or a taking of control, before
the day on which those items commence, as if those amendments had not been
made; and
(d) subsection 427(4) continues to
apply, in relation to a cessation before the day on which those items commence,
as if those amendments had not been made.
(12) The amendments made by items 70, 71
and 72 of Schedule 1 to the amending Act, in so far as they relate to a
company under administration, apply if the administration begins on or after
the day on which those items commence.
(13) The amendment made by item 75 of
Schedule 1 to the amending Act applies to a meeting if the meeting is
convened on or after the day on which that item commences.
(14) The amendments made by items 87, 88,
92, 93 and 94 of Schedule 1 to the amending Act apply to a transfer or
alteration that occurs on or after the day on which those items commence.
(15) The amendments made by items 91, 96,
97, 98, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 and 112 of
Schedule 1 to the amending Act apply in relation to a winding up of a
company if the winding up begins on or after the day on which those items
commence.
(16) Despite the repeal of subsection 506(4) by
item 113 of Schedule 1 to the amending Act, that subsection continues
to apply, in relation to the liquidators of a company where the winding up of
the company began before the day on which that item commences, as if that
repeal had not happened.
(17) Sections 434D, 434E, 434F and 434G
apply in relation to persons appointed on or after the day on which those
sections commence.
(18) Section 530 applies in relation to
the liquidators of a company if the winding up of the company begins on or
after the day on which that section commences.
(19) Section 530AA applies to persons
appointed on or after the day on which that section commences.
(20) Subsections 571(1) and 579E(1) of the
amended Act apply in relation to a group of 2 or more companies if the winding
up of each company in the group begins on or after the day on which those
subsections commence.
1481
Schedule 2 to the amending Act (deterring corporate misconduct)
(1) The amendment made by item 2 of
Schedule 2 to the amending Act applies in relation to a compromise or
arrangement if an application relating to the compromise or arrangement was
made under subsection 411(1) on or after the day on which that item commences.
(2) The amendment made by item 11 of
Schedule 2 to the amending Act applies in relation to a matter that
appears to a person:
(a) during the 6‑month period
ending when that item commences; or
(b) on or after the day on which that
item commences;
where the relevant date is on or after the day on which
that item commences.
(3) Section 489A applies in relation to
a section 486B warrant if the warrant is issued on or after the day on
which that section commences.
1482
Schedule 3 to the amending Act (improving regulation of insolvency
practitioners)
(1) The amendment made by item 7 of
Schedule 3 to the amending Act applies to an application for registration
if the application was made on or after the day on which that item commences.
(2) Despite the amendment made by item 9
of Schedule 3 to the amending Act, subsection 1288(3) continues to apply,
in relation to a 3‑year period ending before the day on which that item
commences, as if that amendment had not been made.
(3) Subsection 1288(3) as amended by
item 9 of Schedule 3 to the amending Act applies as follows:
(a) in the case of a person whose
first 12 months of registration ends on or after the day on which that item
commences—that subsection applies in relation to:
(i) the person’s first 12
months of registration; and
(ii) each subsequent period
of 12 months;
(b) in the case of a person whose
first 12 months of registration ended before the day on which that item
commences—that subsection applies as if the reference in paragraph 1288(3)(a)
to the day on which the person’s registration begins (the initial
registration day) were a reference to the last anniversary of the
initial registration day that occurred before the day on which that item
commences.
For this purpose, a person’s first 12 months of
registration is the period of 12 months beginning on the day on which
the person’s registration begins.
(4) The amendment made by item 12 of
Schedule 3 to the amending Act applies in relation to a decision made on
or after the day on which that item commences.
1483
Schedule 4 to the amending Act (fine‑tuning voluntary
administration)
(1) The amendments made by items 1, 5,
6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 39, 40, 45, 49,
51, 52, 53, 54, 55, 56, 57, 59, 60, 61 and 62 of Schedule 4 to the
amending Act, in so far as they relate to a company under administration, apply
if the administration begins on or after the day on which those items commence.
(2) The amendments made by items 2, 3
and 4 of Schedule 4 to the amending Act apply to an appointment of an
administrator if the appointment is made on or after the day on which those
items commence.
(3) The amendment made by item 8 of Schedule 4
to the amending Act applies to a transfer or alteration that occurs on or after
the day on which that item commences.
(4) The amendments made by items 23, 24,
25, 26 and 28 of Schedule 4 to the amending Act, in so far as they apply
to a company that is, or is proposed to be, subject to a deed of company
arrangement, apply if the administration that ends, or is to end, on the
execution of the deed, began on or after the day on which those items commence.
(5) The amendments made by items 27, 29,
30, 31, 32, 33, 34, 35, 36, 39, 40, 43, 44, 46, 55, 56 and 57 of
Schedule 4 to the amending Act, in so far as they relate to a company
subject to a deed of company arrangement, apply if the administration that
ended on the execution of the deed began on or after the day on which those
items commence.
(6) Items 37 and 38 of Schedule 4
to the amending Act apply in relation to a company if the winding up of the
company begins on or after the day on which those items commence.
(7) The amendments made by items 41 and
42 of Schedule 4 to the amending Act apply in relation to a company
subject to a deed arrangement if the administration that ended on the execution
of the deed began on or after the day on which those items commence.
(8) The amendments made by items 63, 65,
66, 67, 69 and 70 of Schedule 4 to the amending Act, in so far as they
relate to the winding up of a company, apply if the relevant date is on or
after the day on which those items commence.
(9) Section 440BA, in so far as it
relates to a company under administration, applies if the administration begins
on or after the day on which that section commences.
(10) Section 440BB does not apply to
distress for rent that began to be carried out before the day on which that
section commences.
(11) Subsections 442C(7) and (8), in so far as
they relate to a company under administration, apply if the administration
begins on or after the day on which those subsections commence.
(12) Subsections 442C(7) and (8), in so far as
they relate to a company subject to a deed of company arrangement, apply if the
administration that ended on the execution of the deed began on or after the
day on which those subsections commence.
(13) Section 446C applies in relation to a
company as follows:
(a) if the company was under
administration immediately before the liquidation time referred to in that
section—the administration begins on or after the day on which that section
commences;
(b) if the company was subject to a
deed of company arrangement immediately before the liquidation time referred to
in that section—the administration that ended on the execution of the deed
began on or after the day on which that section commences.
(14) Subsection 588FE(2A) applies in relation
to a company if the administration referred to paragraph 588FE(2A)(b) begins on
or after the day on which that subsection commences.
(15) Subsection 588FE(2B) applies in relation
to a company if the administration that ended on the execution of the deed of
company arrangement referred to in paragraph 588FE(2B)(b) began on or after the
day on which that subsection commences.
Part 10.10
Transitional provisions relating to the Corporations
Amendment (Short Selling) Act 2008
1484
Declarations under paragraph 1020F(1)(c) relating to short selling
(1) To avoid doubt, an instrument mentioned
in subsection (2) that was made at a particular time was validly made
under paragraph 1020F(1)(c) at that time.
(2) The instruments are as follows:
(a) ASIC Class Order [CO 08/751],
registered on the Federal Register of Legislative Instruments on 22 September 2008;
(b) ASIC Class Order [CO 08/752],
registered on the Federal Register of Legislative Instruments on 22 September 2008;
(c) ASIC Class Order [CO 08/753],
registered on the Federal Register of Legislative Instruments on 22 September 2008;
(d) ASIC Class Order [CO 08/763],
registered on the Federal Register of Legislative Instruments on 23 September 2008;
(e) ASIC Class Order [CO 08/801],
registered on the Federal Register of Legislative Instruments on 24 October 2008.
(3) To avoid doubt, an instrument (if any)
that:
(a) was made at a time:
(i) after 24 October 2008; and
(ii) before the
commencement of this section; and
(b) is of substantially the
same nature as the instruments mentioned in subsection (2); and
(c) was registered on the Federal
Register of Legislative Instruments:
(i) after 24 October 2008; and
(ii) before the
commencement of this section;
was validly made under paragraph 1020F(1)(c) at that time.
(4) This section applies on and after 19 September 2008.
(5) In this
section:
Federal Register of Legislative Instruments
means the Federal Register of Legislative Instruments established under the Legislative
Instruments Act 2003.
Part 10.11—Transitional provisions relating to the Corporations
Amendment (No. 1) Act 2009
1485
Application of new subsection 206B(6)
The amendments made by item 2 of
Schedule 1 to the Corporations Amendment (No. 1) Act 2009 apply
to an order made by a court of a foreign jurisdiction on or after the commencement
of that item.
1486
Application of new section 206EAA
The amendments made by item 3 of
Schedule 1 to the Corporations Amendment (No. 1) Act 2009 apply
to a disqualification under a law of a foreign jurisdiction that arises on or
after the commencement of that item.